Table of Contents
Risk managers and health officials in the Texas Department of Criminal Justice today record a category of injury under the curious title ‘Caught In-Between’. There are a great many others, whose meanings are more evident: Slips, Trips and Falls; Chemical poisoning; Struck By/Against; Over-Exertion; Aggressive Behavior. ‘Caught In-Between’ is defined as ‘a pinch point type injury that involves mashing or squeezing’, including ‘caught in a door, between pulley, door shut on foot, etc’. Prisons, of course, are full of these pinch points. Spaces are opened only to be sealed, passages are created with the express purpose of shutting them again, locking off prisoners from the rest of the world. Automated doors open and close, gates slam shut. Hydraulic pistons are unforgiving. Unsurprising, then, that a hand, a foot, or a life might be crushed — caught in-between.[1]
In previous years, injuries specified as caught in-between would have been known simply as accidents — a catch-all category that hid as much as it told of how a person was injured or killed. The new differentiation of ways of listing injuries parallels the ongoing modernisation of Texas prisons, and their techniques of risk management. Despite such markers of progress, injuries, illness and deaths persist; because, in a very real sense, all Texas prisoners suffer from the injury of being caught in-between. Their expulsion from the ranks of citizens has led to their social expendability. No longer are they among those whose lives are protected by the state, but they are not dead, either. For them, caught in-between becomes a state of being.[2]
The history of legal punishment tells a troubling story of the centralisation of physical pain and death across a spectrum of medical and disciplinary practices. In the twentieth-century United States, penal death drew upon two distinct historical currents. One was the legal execution for crimes against morality, property, the person and the sovereign, which originated in early modern Europe and took root across colonial America. The second was the social death of racial, chattel slavery in the American South.[3] After the Civil War, the legal status of the prisoner joined both currents into a new form of living death: Ruffin v Commonwealth (1871) ruled that the prisoner is ‘a slave of the state. He is civiliter mortuus’, civilly dead.[4] When the state retracted — or never extended — its guarantees of the protection of life and property, biological death was always a short step away. Postcolonial critic Achille Mbembe described this existence as living in a death-world. His description of necropolitics, the inverse of the Foucauldian notion of biopolitical sustenance of citizens’ lives, is applicable to incarceration: ‘kept alive but in a state of injury, in a phantom-like world of horrors and intense cruelty and profanity’.[5]
Texas is a good place to explore pain and death in American punishment, and the 1930s, seen by many as the birth of the modern American state, are a good time to do so. Despite widespread poverty during the Great Depression, the 1930s held real promise. American liberalism made great strides under Franklin Roosevelt’s New Deal, which expanded the regulatory-welfare state to protect American citizens’ lives from economic crisis. These benefits were not evenly distributed, however. White male industrial workers gained the most, while white women and people of colour, who worked in domestic or agricultural labour, garnered far fewer protections; nevertheless, important gains were made.[6] Equally promising, lynch violence was finally disappearing across the South, and the Southern convict lease system went into a legislated 50-year remission. These were material benefits of the New Deal order.
Yet even granting that liberalism’s unequal benefits were structured by race and gender, the New Deal had a still darker underside. Non-citizens, including hundreds of thousands of Mexican nationals, were expelled from the nation in what one scholar called a ‘twilight zone between voluntary and forced migration’.[7] Prison populations also dramatically expanded, a condition made more dire by a proliferation of capital executions. Within growing carceral institutions, and particularly in the South, prisoners died by means that ranged across a medical, legal and illegal spectrum: from state sanctions like capital execution to diseases like tuberculosis; from ‘accidental’ drowning to gunshot wounds; from inmate stabbings to sunstroke. Some were listed as ‘natural’ deaths by prison officials, others as violent illegal killings, others still as executions fully approved by the state.
But the line between these kinds of death was not always clear, and decisions as to where it was drawn were subjective. In fact — and this insight extends beyond the prison — there is no such thing as dying of ‘natural causes.’ Death is a condition of life, but belief in death from ‘natural causes’ is based on an understanding of nature as a pre-cultural, non-political, state of being. All lives, and their ends, are invariably shaped by cultural practices, the power relations of which are always historical, and always political.[8] When three black men died on a single day from ‘the heat’ on Clemens State Farm in 1930, the Texas Prison Board determined that these deaths could not have been prevented: ‘The evidence show[s] that the utmost care was taken to prevent these unfortunate circumstances, and that the death of these three men is not the fault of the employees of Clemens State Farm.’[9] In extant records, the deaths were caused by ‘heat exhaustion’ rather than human actions, and unfortunate circumstances, as uncontrollable as the weather.
These black men’s death from ‘heat exhaustion’ at everyday labour under the state’s care reveals the prison’s function in institutionalizing a zone of indistinction between life and death for those marked as criminal.[10] It also reveals a shift from nineteenth-century to twentieth-century modes of state formation. In the nineteenth century, racist lynch violence bolstered the relatively weak state. Twentieth-century criminal justice differed in crucial ways, but nevertheless continued to guarantee a new racial and economic order. While the modern state might protect and extend subjects’ lives in innovative ways, it would also permit degrees of death for unruly and racially degraded criminals, as crucial Others to the category of the citizen.
Too often scholars have treated lynch violence, incarceration and capital punishment separately. The most common periodisation of lynch violence, which begins in the 1880s and ends in 1930, is a symptom of this tendency, and meshes with the progressive story of the arrival of the modern liberal state.[11] Charles J. Ogletree, Jr. and Austin Sarat’s recent From the Lynch Mob to the Killing State does well to stress the connection between nineteenth-century lynch violence and twenty-first-century legal execution, yet analyses capital punishment as if it exists in isolation from other carceral forms. Artificially de-coupling lynching, ordinary punishment, and the death penalty has allowed many scholars to neglect a broader critique of prisons. Ogletree and Sarat write, ‘Today, capital punishment is the new “peculiar institution” in American society’, implying that capital punishment, rather than the mass carceral system of which it is a part, is the genealogical descendant of slavery.[12] I disagree. It is but one element within the necropolitical regime of American incarceration and its central role in modern and late-modern state formation. In order to fulfil their broader political and conceptual aims, death-penalty scholars must reckon with the many forms of social, civil, and biological death behind bars, and with what activist-scholar Dylan Rodríguez has identified as a ‘logic of death’ in imprisonment. Such reconsideration must acknowledge prison abolition, rather than just death penalty abolition movements.[13]
Yet, it is hard to know a great deal about death. It is a difficult subject under any circumstances, ‘for dying is the experience of slipping beyond the social world of affects and signification’.[14] Death in prison is doubly inaccessible because so much is deliberately hidden. Even for those inside, death, and its threat, enforces a veil of silence. A black Texas prisoner once explained that just talking about how someone died might be dangerous.
You actually can't tell how nothing happened. You got to go on the side with them if you want to live a long time …
You may be cuttin' wood and they say, 'He was cuttin' wood and a tree fell on him.' All the rest of the guys say, 'How'd he get killed?' Say, 'He was cuttin' and got trapped by a tree.’
You can never tell. Things I actually seen here and things that actually happened — you got to lie, you got to lie. You tell just how it happened, a dark cloud will go over you, and nobody never know what became of you. You runned away. 'Did he get away?' 'Yeah, he got away.'
He got away in a shallow pit grave somewhere, in them woods somewhere. Ain't nobody can come back here and tell a report but them. So that's the way that goes.[15]
You never can tell. Because this man understood that in prison, he controlled neither violence nor truth, nor even his own life. And to speak against the ‘truth’ violence imposed was to risk death itself, and have that ‘dark cloud … go over you’. Violence, in its many forms, made its own truth in the Texas prison, and death imposed a lasting silence.
If the late-nineteenth-century lynch mob proclaimed the ‘truth’ of white (male) supremacy in public spectacles that tortured and flayed bodies, mainly black men’s, the ‘truth’ of death in the modern Texas penal regime was a crushed silence, a tubercular wheeze, an occasional gunshot, or the whine of an electrical generator pumping current through a legally-restrained body. Neither these sounds nor these sights were the terrorist spectacles of lynch violence, but they nonetheless signalled a new mode of racial and class hegemony and a new state formation.
Texas has a long history of legal and extralegal execution, and it draws on numerous sources. The mid nineteenth century was a period of colonial warfare and expansion, and violence against Native Americans and Mexicans at the hands of Texas Rangers frequently took the shape of an extralegal posse or a lynch mob. When a member of a white settler community violated local customs, they, too, could be dispatched at the end of a rope and with an impromptu trial, if with a trial at all. Yet the best-known form of lynch violence was the racial terrorism of the late nineteenth and early twentieth centuries. White men, anxious about their patriarchal authority in the postbellum world (and this was exacerbated by economic crises), attempted to crush the possibilities of black political participation and reproduce the slave-like conditions and clearly-defined racial/gender hierarchies of earlier generations.[16] When accused of raping white women, African American men were lynched in massive and horrifically violent events, spectacles that blurred the line between legal and illegal execution. Public officials commonly participated in illegal lynch mobs and racial violence in the late nineteenth and early twentieth centuries. Similarly, black men ‘saved’ from mobs were frequently railroaded through a ‘legal’ trial and then put to death.[17]
Lynch violence in the late nineteenth and early twentieth centuries coexisted with capital punishment across the South. Until 1923, county sheriffs meted out capital punishment in Texas. As with lynch mobs, sheriffs hanged the condemned in a public spectacle in the county of conviction. Texas was slow to eliminate this public ritual, and to bring it behind the ‘civilised’ walls of the prison system.[18]
As the culture and economy of industrial capitalism and the aesthetics of modernity took hold across the South in the early twentieth century, advocates of local and bloody lynch justice — particularly for alleged sexual attacks by black men on white women — lost sway to the boosters of northern investment and the critics, black and white, of Southern backwardness, lawlessness, and insularity.[19] After such notable black activists as W. E. B. Du Bois and Ida B. Wells railed against what they identified as the barbaric lawlessness of white lynch rule, new Southern elites with ties to Northern capital relented and moved against the previous generation’s lynch violence. By the mid-1920s, Texas belatedly followed many other states by both centralising its legal executions and curtailing extralegal lynching, thus incorporating some element of white ‘lawlessness’ into the modernising state. This move had two key components: by denigrating working-class whites as the ‘rabble’ responsible for white lynch violence, new elites displaced responsibilities for lynching (in which political elites participated), while also playing on emergent conceptions of ‘white trash’ as a racially-polluted, criminal type.[20]
As the state mechanism for execution modernised to limit the threat of white mob disorder while guaranteeing white rule, so too did the Texas Prison System adopt an industrial apparatus for killing. After 1923, condemned criminals would be executed at Huntsville, and electrocuted rather than hanged.[21] There would be neither the festival of violence that accompanied a mass spectacle lynching, nor were vigilante killings acceptable. Instead, death came to prisoners through the antiseptic administration of justice, via the penitentiary and capital sentencing. Texans developed a sensibility that would modernise the practice of execution by centralising it in the state, and this, in the end, effectively absorbed white mob disorder while transforming the mechanisms of white male supremacy and class hegemony.
Indeed, the new prison regime was so effective at these tasks that in the Depression, unprecedented numbers of people were either imprisoned or put to death. In Texas, the prison population swelled from 5,000 prisoners in 1930 (itself cause for much concern in prison Annual Reports) to crisis levels of 7,177 in April 1939, making the Texas Prison System one of the largest in the country.[22] In the same decade, capital sentencing rose nationwide, peaking in 1935 when 199 people were put to death. Then as now, Texas was a national leader in lethal punishment. The 20 men who died in Huntsville’s electric chair in 1935 made up 10 per cent of all executions for that year, and Texas accounted for seven per cent of the nation’s total executions between 1930 and 1942 (148 of 2,065 total executions).[23] Yet the electric chair was just one of many ways to die in this new regime, which, like lynch violence before it, meshed elements of legality and illegality, and neglect and cruelty.
Jesse Jones’s experience presents a case in the indistinction between legal and extralegal killing across the early twentieth century. In 1906, Waco authorities arrested Jones, an African American man, for the murder of his employer, a Jewish storekeeper named Mat Block. The Sheriff explained how he obtained Jones’s confession: ‘When I was talking with the defendant we gave him some whisky; also told him we would protect him from the mob.’ Keeping Jones awake all night, the Sheriff told Jones ‘there was a crowd gathering downtown [that] contained too many men for that time of night’. Thus promised protection from a torturous death at the hands of the mob, Jones confessed, and was convicted, despite the two witnesses who claimed to be with him at the time of the murder. He was hanged in downtown Waco before a large and approving crowd.[24]
This sort of (white) community approval, and the overlap between vigilante and formal justice continued well into the 1930s, particularly when black men were the accused. Bob White, also African American, was arrested in Conroe, just north of Houston, for the rape of a white woman on 10 August 1937. White denied involvement in the crime. He claimed he’d been farming at the time of the attack, and argued that the casts of the attacker’s footprints — used as evidence in the trial — did not match his own feet. Nevertheless, the victim identified him as the attacker. Material from his case file describes his treatment in the county jail:
That night and the three nights following the subject was taken to the woods near Livingston and beaten senseless. On the fourth night, he was suspended from the limbs of trees by chains tied around his wrists until he fainted. This treatment was administered for the purposes of obtaining a confession.[25]
The ‘treatment’ was successful, and White signed his ‘X’ on the confession. Later, however, White appealed his conviction, went through a second trial and appeal, and was in the process of jury selection for a third trial in June 1941 when W. S. Cochran, the victim’s husband, shot him dead. Cochran, a large landholder in the area, was charged with murder, but soon released on $500 bail. One week later, he was acquitted. The Conroe Courier reported ‘general satisfaction’ over Bob White's death.[26]
Confessions weren’t just coerced over rape and murder charges, for which men would have been lynched a few years earlier. Forced confessions, produced under tortures directly replicating lynch violence, could be used in a range of offences. The conditions an East Texas county jail inmate described in a letter to Governor Ferguson again showed the lack of distinction between extralegal lynching and legal criminal justice:
I am writting to you to let you know how the prisoners in the Nac'doches County jail is treated. They put you in jail on supsician and they try to make you confess, hang you up by the neck and whip you with a club and their pistols, take them out of jail at night, carry them to the woods, whip them unmercyful, one whips them the others hold their gun on them.
The writer continued that ‘City and County Officers, Curl Butler High Sheriff[,] Jack Eaves Debuty[,] Pat Patterson debuty [and] City Marshall’ all participated. Surely he knew he was in a weak position to make a request to the Governor, but nonetheless demonstrated optimism in the possibilities of the law when he requested that the Governor
investigate the way they are treated the poor colored people in jail and in Nac'doches … please look into this letter and try to rid this town of such cruel treatments …
From a prisoner in jail that are getting these treatments.[27]
Nevertheless, the 1930s did see the successful curtailing of lynch violence, and the glimmerings of modern trials and due process in Texas. Lynch violence decreased, but incarceration, accompanied by the rapid expansion of legal execution, quickly took its place.