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Prison and Place: Carceral Reform and Indigenous Dispossession in Hawai‘i

by Jonathan Goldberg-Hiller
16 May 2016 • Comment (0) • Print
Posted: Reflections on Dispossession: Critical Feminisms [14] | Article
 

How can you continue to ask a thief to sit in judgment of itself?
- Hayden Burgess[1]

The recent commitment of the State of Hawai‘i to reduce and eventually eliminate its reliance on private prisons in states thousands of miles away[2] was prompted by native Hawaiians and their allies who have seized an opportunity to politicise this form of colonial (in)justice. As an influential report promulgated by the state Office of Hawaiian Affairs in 2010 noted, Hawai‘i’s incarceration rate exploded by over 900% from 1977 to 2008, and native Hawaiians took the brunt of its effects, since they are more harshly punished at every stage of the criminal system.[3] In addition to being overrepresented in Hawai‘i’s prison population,[4] the report emphasised that Hawaiian prisoners suffer an acute sense of cultural trauma when removed from their land to private facilities across North America, in prisons that have been contracted since 1995 to offset the high costs associated with building and running public facilities in the Islands. Other recent studies[5], along with some lawsuits that highlighted the sexual abuse of women prisoners in private prisons[6] and the denial of cultural and religious rights of Hawaiian prisoners[7], have highlighted the cultural as well as fiscal impacts of privatised incarceration. The executive and legislative efforts to bring the prisoners — most of whom are Native Hawaiian — home raises issues for the state, prison reformers, and indigenous activists regarding the limits to a cost-conscious neoliberalism and the potentials for indigenous sovereignty in light of the forms criminal justice has taken.

This paper examines the discourse of prison reform in contemporary Hawai‘i in order to explore the relationships between sovereignty, discipline, and government in settler societies. I ask in what ways can a criminology addressing the carceral violence of exile directed disproportionately against native peoples provide a means for rethinking the ongoing violence of dispossession. I identify three aspects of exile and elucidate their political potentials for native sovereignty. The first facet of exile is the deprivation of culture, separation from families, and enforced impoverishment that disproportionate and mass imprisonment entails. The second form of exile is related to the physical displacement from Hawai‘i, including the humiliation of territorial deprivation and the cultural loss of contact with ‘āina (native Hawaiian ways of knowing land) that indigenous inmates suffer. Because recent reform has been associated with federal and state efforts at colonial reconciliation[8] – processes that derive in meaningful ways from endeavours pioneered by Japanese-Americans to seek apology, recognition, and reparation for their incarceration during World War II[9] –  contemporary prison reform raises the opportunity to assess the potentially divergent meanings of racial equality for indigenous struggles against mass incarceration. This inquiry frames a third dimension of indigenous exile, one that highlights the constraints on indigenous self-government that contemporary settler-colonial politics enforces. Therefore, this chapter additionally inquires into the way in which arguments against mass incarceration of native peoples and for place as territory and as ‘āina may challenge the racial formation within a settler colony.[10] I proceed theoretically, historically, and empirically in my assessment of contemporary criminological discourse.

Towards a critical colonial criminology

The possibility of a critical colonial criminology allows us to ask when and in what manner penal reform and its attendant discourses — the criminological dispositif[11] — might make a political difference. Marxists such as Pashukanis understood criminal law to emerge from the blood feud only to be subsumed by, and thus remain subservient to, capitalist social relations of equivalence: “The ratio between offence and retribution is … reduced to [an] exchange ratio”.[12] Douglas Hay[13], in his study of capital punishment in eighteenth-century England, argued that reformers decrying the death penalty as well as conservatives resisting reform shared the common aims of retaining if not augment ruling class power.[14] Michel Foucault was, likewise, leery of the potentials of criminal reform and the sciences that arose around it. As he observed: “Although it is true that … the investigation has detached itself from the inquisitorial procedure, in which it was historically rooted, the examination has remained extremely close to the disciplinary power that shaped it”.[15]

In seeming agreement with Marxists such as Hay, Foucault argued that “prisons manufactured delinquents, but delinquents turned out to be useful, in the economic domain as much as the political. Criminals come in handy”.[16] Alex Lichtenstein’s historical arguments about the perpetuation of the twinned institutions of white supremacy and mass punishment in the American South have strong echoes of Foucault’s claims about the productivity of power: “Brief moments of reform did more to refine and justify retribution than to alleviate suffering or rationalize punishment, and … regrets about previous penal practice have served more often than not to underwrite current horrors”.[17] In these Marxist, genealogical and historical assessments of criminological reform, the production of subjectivity and scientific normalisation (as in the figure of the delinquent or the dangerous person), the alliance with and legitimation of state power, and the unexamined relationship between economic interest and criminal law[18] together suggest that reform of criminal justice frequently intensifies punishment and power. Can the discourse of reform effectively speak back to power, and does anyone listen?

David Garland has answered in the affirmative. Garland modifies Foucault’s genealogy for contemporary critical theory, arguing that Foucault’s emphasis on the criminological investigation misses other discourses in the criminological dispositif that have arisen in the past century. Academic criminology has achieved, Garland argues, “some small degree of independence and critical distance from the institutions of crime control”[19], and criminology may contradict as well as complement some forms of power. Garland believes that both political sentiment and humanitarianism hold the potential to escape the intensification of power and, because both are situated outside the control of experts, they may offer a politically potent critique of punishment.

It is perfectly possible for a change in practice to be guided by genuine humanitarian sentiments which modify the logic of scientism and which lessen the suffering of those concerned. … I would suggest that it is necessary to give some place in one’s analysis to the sentiments of humanitarianism and compassion which are a recurring feature of criminological discourse. … [S]uch an approach allows a better depiction of the social relations in which criminology developed and in which it is currently practised. These are not normally relations of one-way power, of control pure and simple. Instead they are relations of interdependence in which each party—including even the criminal in his or her relations with the authorities—is  felt to have a claim on the other, even if only a claim to be treated as a human being.[20]

In light of an overarching theory of just deserts that has smothered norms of rehabilitation and driven up prison populations, humanitarianism and compassion may provide some leverage against contemporary carceral policies.

And yet, because both humanitarianism and compassion play a more suspect role within colonial contexts, there is ample room for doubt. Peter Fitzpatrick and others have influentially argued for the centrality of an imperial idea of “savagery” to the rule of law, as well as for the productive ironies of subordinating the indigenous—in the name of all kinds of compassion—by “reduc[ing] them to civility”.[21] Many others have pointed to the role of punishment in this sentimental reduction. Samera Esmeir[22] has argued that the production of the human was a central concern in nineteenth-century British administration of Egypt, which followed a specifically Benthamite logic that intimately linked the production of a civilised humanity to the reality and threat of incarceration. Laura Gómez[23] has argued that nineteenth-century criminal courts in newly-annexed parts of the New Mexico territory were sites for reproducing the shared power of some whites and Mexicans through the subordination of Indians and misbehaving poor whites. Luana Ross[24] has shown how colonisation and the criminalisation of Indians were intertwined processes that “invented the savage”.[25] This invention gave purpose to the criminal system, perhaps as early as the seventeenth century in the New World. As Yasuhide Kawashima put it: “It was not merely acculturation but a complete transformation of the Indians into white men” that was sought by the puritans.[26]

These colonial legacies have been argued by some to be constitutive of modern criminology and to lay the groundwork for a post- or counter-colonial analysis of criminology in the West. Biko Agozino has argued, for example, that “the same criminological justifications used to rationalize imperialism were imported back to the metropole to justify the repressive control of the working classes,”[27]  influencing mass incarceration and other carceral dynamics. In settler colonies such as Hawai‘i, Canada, Australia, Israel/Palestine and the United States, criminology needs no importation or translation, directly functioning as an ongoing means of indigenous dispossession and state legitimation. Settler colonies are dominated by immigrants seeking permanent place through political, legal, and cultural strategies designed to dislodge the claims of indigenous inhabitants, processes that Patrick Wolfe has influentially called a zero-sum “logic of elimination”.[28] This logic has sometimes involved outright genocide, Wolfe argues, but today it frequently operates through ongoing settler domination of the spaces, bodies, cultures and histories of indigenous inhabitants: an enduring exilic replacement of the native rather than a receding temporal event. In a series of studies, most focusing on Australia, Chris Cunneen has tied criminology to strategies of settler-colonial control. By remaining attentive to forms of indigenous resistance and alterity within the racial formation of the settler colony, Cunneen explores the colonial character of policy discourse by emphasising “the importance of history, particularly through understanding of the long-term impact of colonization and imperialism [as well as] an analysis of the structures of sentiment and ideology that determine the intersections of race, crime and punishment”.[29]

Criminology in Hawaii

In the first half of the nineteenth century, missionaries, other haole (white) elites who had married into the royal family, and Hawaiian ali‘i[30]encouraged the coding of criminal behaviour and its punishment in order to instil a civilised “self-restraint” within native Hawaiians, proscribing (though never eliminating) non-Puritan sexuality and family relations, drinking, and sport and cultural performances, among other things.[31] This strategy was symbolically ambivalent. On the one hand, it signalled a nation bound to law, hence deserving respect and autonomy by other “civilised” nations prowling the Pacific with their warships.[32] On the other, as Keahiolalo-Karasuda[33] has intensively explored, the question of Hawaiian sovereignty was in many ways undermined by criminal law, its spectacles of punishment, and the ability to make criminals “handy” for a growing colonial power. In 1840, Kamanawa ʻŌpio was publicly hanged; his young royal grandchildren were forced by their missionary schoolteachers to witness the event. In 1895, Queen Lili‘uokalani was placed under house arrest prior to her forced abdication. And, throughout the nineteenth century, Hawaiian monarchs were publicly associated with illegal drinking and opium-running. In these historical incidents, crime and punishment were made integral to the wresting of sovereignty from Hawaiian hands. These events also reinforced the continuing image of Hawaiians as lacking self-control and individual sovereignty, an ideology that Keahiolalo-Karasuda[34] argues helps to reproduce the high rates of Hawaiian incarceration today.

Following the overthrow of the Kingdom of Hawai‘i in 1893 and the imposed annexation of Hawai‘i to the United States in 1898, the particular legal status of Native Hawaiians remained uncertain, with consequences for the cultural meanings of criminal law. By the early twentieth century, “civilising” efforts through punishment were shifted to the creation of a “new human”, useful for labour in the sugar and pineapple plantations and in keeping with Western ideas of self-control.[35] Commensurate with this expanding “humanitarian” concern, reform efforts broadened to include Asian contract workers who, previously in the nineteenth century, had not been considered to be as plastic and civilisable as the more “child-like” Hawaiians. Unlike some American Indian nations whose limited sovereignty stems from subordinated control over reservation lands and, in some cases, over criminal courts whose reach is limited to inter-tribal conflicts,[36] Hawaiians have no federal recognition (nor do many want this[37]), no dedicated land that they manage,[38] and no control over criminal law. Without a set of legal entitlements to land and place, and with a waning historical emphasis on indigenous political difference[39], the state-sanctioned exile of Hawaiian prisoners to North America holds no essential legal significance for the lingering question of Hawaiian sovereignty.

In the face of Hawaiian nationalist activism, ever since the 1970s, to reassert control over Hawai‘i’s politics and culture, there have been efforts more recently by the state and federal governments to acknowledge Hawai‘i’s colonial history and to seek reconciliation. Foremost among these is the 1993 Apology Act through which the Congress and President offered an apology “to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawai‘i on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination.”[40] The Apology reinvigorated Hawaiian nationalist activism as well as strong settler opposition to efforts that might privilege native Hawaiian interests at the expense of others—efforts that might extend beyond the cultural realm to reassert political difference.

Calling upon civil rights and equality, and arguing that compensation for the overthrow of the Queen was also due non-Hawaiians who were full citizens of the Hawaiian Kingdom, these antagonists of Hawaiian nationalism have found a broad reception in the courts. The Apology’s historical claim for the impropriety of the Kingdom’s overthrow was ignored in the Supreme Court case of Rice v. Cayetano (2000)[41], which overturned Hawaiian-only voting for the state Office of Hawaiian Affairs on the basis that it violated norms of racial equality, and the Apology was later stripped of its historical preamble in Hawai‘i v. OHA (2009)[42] when the Court ruled that Congress could not create substantive rights through the acknowledgement of past perfidy. Lacking a federal claim that can disrupt the multicultural dynamics of the settler colony, native Hawaiians retain a political status not unlike that of a race or ethnicity.[43] As Jodi Byrd[44] has cogently argued, the substitution of race for indigeneity obscures the settler colony’s foundational dispossession of native peoples.

Racialisation replaces colonisation as the site of critique, and the structuring logics of dispossession are displaced onto settlers and arrivants who substitute for and as indigenous in order to consolidate control and borders at that site of differentiation. Indigenous peoples are unactivated in the present as their colonisation is deferred through the transits that seek new lands, resources, and peoples to feed capitalistic consumption.[45] Civil rights and the legal norm of equality, used to modulate the racial limits of inclusion, seem unable to resolve indigenous demands for the restoration of property and nation.[46] To many Hawaiians, this is a form of political exile.

Punishment has its own genealogy in Hawai‘i’s governing norms of equality. The declaration of martial law in the Territory of Hawai‘i following the Japanese attack on Pearl Harbor in 1941 provided a context for restricting the freedoms of local Japanese. Perhaps because Japanese comprised more than 37% of the population at the time, the mass internment of Japanese citizens and residents authorised and carried out in much of the United States mainland during World War II was deemed impractical in Hawai‘i, although a total of 597 Japanese identified as risks to national security were sent from Hawai‘i to North American camps and several hundred were interned on O‘ahu.[47] Jonathan Okamura[48] has argued that this distinctive treatment does not reflect a benign set of race relations in Hawai‘i—an aloha spirit—that flowered prior to the war, but instead should be seen as a continuity of the bitter local history of anti-Japanese sentiment and an entrenching white supremacy that had left Japanese and other Asian immigrants as second-class citizens in Hawai‘i.[49] In an effort to prove their loyalty, many young Japanese men from Hawai‘i and the mainland volunteered for the military and served with distinction in segregated units in Europe. Upon their return to Hawai‘i, the highly-decorated members of the all-Japanese 442nd Regimental Combat Team converted their heroic status into political capital, convinced “that the war had vindicated their claim to equality and to a major voice in Hawai‘i’s future”.[50]

That voice was institutionalised within the Hawai‘i Democratic Party which dominated state politics after the war, advanced civil rights, including revisions to the Constitution in 1978 that organised the Office of Hawaiian Affairs for Native Hawaiians, and established an inclusive multiculturalism that defined Hawai‘i as a place for racial and other forms of equality. Behind this rethinking of political equality was always the remembrance of the pain of exile and imprisonment that Japanese-Americans suffered during World War II: the solidarity that Hawai‘i’s Japanese community felt with those incarcerated in North America, and the painful scars that remained from being tossed into distant and risky military theatres to prove individual and collective loyalty. Territorial exile and the exile of imprisonment were never far removed from settler political values.

Yet, by sidestepping questions of lingering indigenous dispossession, Hawai‘i’s multiculturalism marked a break that did not critique as much as reinforce the colonial subordination of native Hawaiians[51], even though the opportunities for critique have been many. Indeed, very little politically has been made of the institutional confluence of Indian policy and Japanese internment; some concentration camps were run by the Office of Indian Affairs (precursor to BIA), a linkage that Byrd[52] has shown to be one of the signal colonial humiliations of Japanese incarceration: to be treated like an Indian. Byrd’s recognition of the colonialist dimensions to Japanese internment raises an important question about the rise of Japanese political power in Hawai‘i and the transformative character of the democracy carved out of the Hawaiian colonial wilderness. In what way can efforts to challenge dispossession and restore Hawaiian sovereignty make use of sentiment about Japanese American incarceration and exile?

This question is made vital by the genealogy of reconciliation that has undergirded contemporary efforts at prison reform. Redress for Japanese internment influentially “contributed to contemporary understandings of reparatory justice”.[53] Lobbying by Japanese-Americans and civil liberties groups culminated in the Civil Liberties Act of 1988 through which the US apologised to World War II Japanese American internees and made a symbolic payment of $20,000 to each for their suffering. This Act has inspired a reconciliation movement, and resonated with efforts to make reparations for African American slavery, the mismanagement of trust lands for Indians, the exploitation of itinerant workers under the “Bracero” program, the denial of benefits for Filipino veterans, the plight of Korean “Comfort Women” and European Holocaust survivors, and, last but not least, Hawaiian reconciliation.[54] Yet, while some of these projects do attend to unjust acts of incarceration, none address place and exile as matters for political restitution, and all offer forms of recognition as compensation for individual rather than collective harms. In addition, these projects reinforce state power and legal authority while also limiting the temporal frames in which justice can be sought. Long-term historical dynamics of collective dispossession including concerns of territory, property, sovereignty, and state power—issues that could question the settler-imposed meanings of Hawaiian place established in the post-World War II era—are either not addressed in these reconciliation efforts, or are offered in exchange for state control of Kingdom-era lands.[55]

Bringing history back—as an anti-colonial discourse of criminology must—demonstrates the intricacies of penal power. Not only has the criminal dispositif been used instrumentally as a tool in the overthrow of the Hawaiian Kingdom and in the control of a large portion of the population during World War II, but its excesses, identified as incidents of state crime, have also been used to propound new ideas of equality and fuel the reconciliation efforts that now reverberate within the settler-colonial state. The disproportionate mass incarceration of native Hawaiians, and the discourses and institutions that maintain it—including the exile of native Hawaiians to private prisons on the mainland—provide opportunities to investigate the languages of equality and proportionality as well as to question settler meanings of place (as territory and sovereignty) and respect for law, around which a critique of colonialism might emerge.

I argue that discourses about place and about the temporal and historical character of the penal subject tend to expand the meanings of this particular inequality beyond the bounds of Hawai‘i’s multiculturalism in ways that partially reveal its colonial structure. However, I note that because many activists feel the necessity of articulating sentimental commitments to law-abidingness, arguments for the equal proportionality of punishment paradoxically reinforce colonial relations and the dispossession of indigenous land and sovereignty on which they are based.

Arguing imprisonment

In this section, I examine testimony regarding the mass incarceration of native Hawaiians from the summer 2012 hearings culminating in the Native Hawaiian Justice Task Force Report and  subsequent reform legislation. These hearings were held on O‘ahu, Kaua‘i, Maui, Moloka‘i and Lāna‘i (by video) and Hawai‘i Island, and at site visits with native Hawaiian prisoners on O‘ahu before nine members representing government, NGOs, academics, and the public. The task assigned by Hawai‘i Act 170 (2011) was to

formulate policies and procedures to eliminate the disproportionate representation of Native Hawaiians in Hawai‘i’s criminal justice system by looking for new strategies to reduce or avoid unnecessary involvement of these individuals with the criminal justice system [and to] recommend cost-effective mechanisms, legislation, and policies to reduce or prevent individuals’ unnecessary involvement with the criminal justice system.

159 members of the public provided testimony, some of it straying far beyond the legal parameters of the inquiry.

Although the theme of the hearings was the disproportionate punishment of Native Hawaiians who served more time and were demographically more represented in prison—about the facts of which few disagreed—there was almost no direct discussion of what equal or proportional punishment should or could mean. Disentangling the concerns about excessive incarceration from the racialised forms of accounting by which disproportionate punishment was measured was not made an explicit issue by those who testified, even though the ideologies of equal treatment and equal regard played an important and subtle role in much of the testimony. Equality serves a particular imaginative role in settler colonialism, providing what Strakosch and Macoun[56] have called a “vanishing endpoint.”

Instead of the moment of decolonization, it is the moment of full colonization—or rather, it is both, because in this imagined moment colonial relationships will dissolve themselves and settler authority will be naturalized. This transformative event is both an impossible colonial dream, premised on the disappearance of Indigenous political difference, and a concrete political project that justifies all manner of tactics in the present.

Although this endpoint is managed within the discourses of the settler colony, equality may also exceed it, as in the equal respect of sovereigns. The suffering due to state violence may be its initiator (e.g., that experienced by the ethnically Japanese community who helped initiate the contemporary form of the settler colony in Hawai‘i). The French political philosopher Jacques Rancière[57] has argued that the example of Olympe de Gouges accepting her punishment of death in the French Revolution permitted the expansion of the ideology of equality. De Gouges argued that if women were entitled to the scaffold, they were equally entitled to the assembly, a matter that, as Rancière argues, reveals the essentially political nature of borders between the private (and criminal) and the political.

I divide my attention below between several alternative themes significant for the historical and ideological dimensions of a critical colonial criminology: state crime, the criminal subject, and place. In each there is an implicit and explicit concern with equality and exile, and what they can mean for native Hawaiians in the context of multicultural reconciliation and disproportionate punishment.

State crime

There is a thin veil separating the explanation for Hawaiian criminality and mass incarceration, on the one hand, and acknowledgement of the excesses of state violence, on the other. The Apology recalled the centenary of the overthrow of the Queen in 1893 as a point in the past for which current redress had to account. Some testimony before the Native Hawaiian Justice Taskforce also used the overthrow to account for individual criminal behaviour. Wade Lee, a Hawaiian homesteader from Moloka‘i, argued that: “Antisocial behavior is one symptom of deep hurt inside. Deep hurt goes all the way back of taking the Queen and throwing her in jail.” Representative Faye Hanohano, a Hawaiian Democrat from the Big Island (who previously served as prison guard and administrator) testified,

Of course, you see so much Native Hawaiians that are incarcerated, so you wanna know what is the problem really. And you know, people come up with a lot of solutions, mostly from the western side. … The Hawaiian perspective has a lot of values. … It’s the healing of all of the broken spirits that needs to be healed, especially our people, because we were technically overthrown, you know, during Lili‘uokalani’s time. And a lot of our people still suffering the same pains, aches and pains that our ancestors had.

For others, such as Hawaiian activist Andre Perez of Kaua‘i, the issue transcends Hanohano’s argument for individualised healing, requiring the naming of a greater crime.

We have to use our sociological imagination. We have to connect cause and effect, understanding the political and social history of Hawai‘i. We have to go back to the scene of the crime. In the 1800s we faced rapid social change, depopulation. With the introduction of Christianity came a strong sense of ethnocentrism, judgment, prejudice. In 1893, the illegal overthrow of our kingdom, we lost our land. We became disconnected from the land. Not by choice, but because it was stolen from us. We lost our self-governance. Followed by that, there was suppression of culture and language. We all know about these things. Followed with that simulation, acculturation, to the point that we internalize the hegemony, loss of identity. Some people talk of generational trauma. There was never any reconciliation so the trauma carries over, generation to generation. … When you take a people and a culture and destroy everything—their connection to their ‘āina, you take the ‘āina away, their language, their practices, their whole sense of self-worth, this is what happens.

The specter of unaccomplished reconciliation and the criminal theft of indigenous land, in Perez’s testimony, indict the limited ambit of the task force.

Perez’s powerful language of trauma was repeated throughout the testimony and incorporated into the Task Force Report which found that:

Native Hawaiians have suffered from severe intergenerational, historical, and political trauma from the loss of land, language, and culture. This collective trauma has negative economic, health, cultural, and educational impacts on individuals, and often manifests itself in criminal activity. Any effort to reduce the number of Native Hawaiians who come in contact with the criminal justice system must include a multi-pronged approach to addressing this trauma.[58]

Trauma is one way to link earlier political violence to present behaviour without fully individualising it. For Freud, an originary violence is constitutive of both law and society and creates a traumatic memory lingering through generations[59], while for Fanon, colonialism is shot through with the repeated traumatic violence of a misrecognition of “savagery”.[60] While pain is lived[61] and thus communicated in literature, legal claims, and expressions of criminal injustice, trauma inhibits living[62] and is thereby more difficult to communicate. The language of trauma, opened by the framework of reconciliation that the Apology initiated, is thus powerfully aimed at the ongoing structures of colonialism which cannot be easily healed at the individual level, including the mass incarceration of Native Hawaiians. Japanese incarceration, by contrast, was a trauma that was formally individualised; official apology was offered only to those living individuals who were unjustly confined. Thus the discourse of trauma used in the Task Force Hearings was broader but, at the same time, it was not easily focused on the problem of mass incarceration.

One example of this diffuse focus can be found in the rhetoric of a related finding by the Task Force: “There is a strong belief in the Native Hawaiian community that historically, the criminal justice system has been used as a political tool to subjugate Native Hawaiians.” The phrasing of this finding refuses a definite position on the claim, and it was further weakened by the fact that it was not unanimous; both representatives of the Department of the Prosecuting Attorney of Honolulu and the Department of the Attorney General on the task force voted in opposition, stating that this was an inaccurate summary of the sentiments expressed in the testimony.

The dominant neoliberal philosophies of punishment that have led to mass incarceration downplay emotion and have no category for state crime in their reification of personal responsibility; nor do they have a framework to evaluate the claim that prison is a promoter of, rather than a legitimate response to, illegal behaviour. Embracing neoliberal theories of crime made it impossible for the state to agree—as the Task Force itself did not—with some testimony that argued that some crime was itself no more than political resistance to an historical denial of indigenous sovereignty, experienced as an internal form of exile. For example, Hayden Burgess, a Hawaiian attorney, argued that “we have people coming before the courts who have been made criminals because of their conduct and because of their protest, but they are not criminals. They are outlaws.” Other testimony tried to make a case that criminal behaviour was generated by ongoing acts of colonial dispossession: “As we see now, time and time again, there’s more land grabs, there’s more theft.” (Keali‘i Makekau). Kevin Block, a Maui attorney working on prisoner re-entry recalled meeting Hawaiian activists illegally occupying the island of Kahoʻolawe. (Kahoʻolawe has a signal political meaning to the Hawaiian nationalist movement because these activists, in the same year as the Apology, forced the island’s return to the state from the Navy that had been using it as a bombing range.[63]) “I soon forgot that those men would be locked up when they returned to O‘ahu. I felt lucky to have learned at a young age not to believe representations in the media about criminals, but to trust my instinctual sense that they were important and remarkable men in an unfortunate context.”

These activists, who explained mass incarceration of Hawaiians on the basis of state crime, implicitly argued that more proportional punishment for native Hawaiians demanded reconciliation first, yoking equal treatment of prisoners to sovereign recognition. This was powerful political theater that used the opportunity of the hearings to demonstrate the cramped authority that the taskforce was granted. This tactic also revealed the dominance of the colonial temporalities in which any proposed reform had to operate. The argument that dispossession was not only in the past but repeated in the present posited a persisting structural inequality. But the hearings were committed to criminal policy, and getting from point A to point B required the imagined possibility that the state could work to overcome its colonial past and attend to native Hawaiian interests. The debate over the ways in which the state could heal individual and community harms through its modes of punishment and its programs to alleviate community stress was a narrow debate that refused these open challenges to examine and overcome the traumas inflicted by the state. Policy is often an opportunity for reinforcing extant hierarchies and erasing the memory of originary injustices, and here it had become a means of enunciating a postcolonial break more attuned to settler sentiment than to the broader demands for native Hawaiian justice.

The criminal subject

The dominant arguments in the testimony for the development of policy, which failed to fully account for colonial history, constricted the comprehension of criminal rationality. Where efforts to rectify inequalities in punishment were envisioned as a matter of the rational choice to summon sufficient political will, so it was imputed that failures of individual self-control led some Hawaiians to a life of crime. The alternative voiced by some activists—that native Hawaiians acted criminally for political reasons—posed its own problem, however. While the argument of political trauma highlighted an historical past—the “unfortunate context” in Block’s words above—that transcended the lifetimes of incarcerated individuals and could explain away some criminal behaviour, the idea that trauma worked itself into the lived experiences of dispossession complicated the critical ideology of punishment, by suggesting that Hawaiians really might have become the dangerous and “uncivilised” offenders once imagined as justification for colonial punishment. If this were true, then solving the problem of mass incarceration of Hawaiians had to involve distinctive mechanisms of punishment and rehabilitation.

As an illustration of this problem, some who testified argued that it was essential to intervene in such issues as inter-familial violence—a concern that Merry[64] has shown to have been an integral aspect of nineteenth-century Hawai‘i penology,[65] and which has served as a pretence for the state crimes of the removal of native children in many other settler colonial societies—in order to teach offenders that this behaviour was still illegitimate. Consider the testimony of Earl Kawa‘a, a Hawaiian and former prisoner:

And here’s the mana‘o [wisdom] today:  when you hit someone, when you bang someone, we say it’s okay. But someone say it is Samoan love. Hawaiian say that is Hawaiian love. That’s bullshit. It was never Hawaiian love and never will be.  And we should get rid of it.  Never, ever allow that to happen.

For representatives of NGOs who had an interest in related rehabilitative efforts, addressing the cultural particularities of violence reinforced the need for coercive pedagogy, a recapitulation in more modern terms of the colonial values originally ascribed to punishment. The problem, as they saw it, was that the political context of colonialism promoted anger among Hawaiians that could not be resolved without indigenous healing, but this cure remained dependent on the coercive power of the state to ensure its delivery. In this circular relationship, colonial power remained unchallenged in part because it permitted the opportunity to talk about punishment in the atavistic language of rehabilitation rather than the contemporary framework of just deserts.

Rehabilitation did not challenge state authority where it was imagined to result from the imposition of an indigenous temporality protected by prison walls.[66] Carmen Hetaraka, a Maori expert on indigenous reconciliation processes, offered this explanation.

What happens is our oppressors and the people that are oppressed, they hate the oppressor. … When they come out, they still hate the oppressor, so they re-offend. They slip back into their old trends because they are still not happy.  They are in prison, out of prison. … So once we come to this understanding that we have actually committed a crime and we feel remorse, then we come into this period of time.  This word, in Hawaiian, would be [bad transcription], which is a time that’s a preparatory time that’s given to them while they’re incarcerated, a time to prepare to gain the skills like our brother here that talked about halemuas and the other things to get our people to stand up and to be accountable as fathers over their children, to be providers, to be gardeners, to be fishermen, to do those things to keep harmony. That’s what they’re taught; that’s why everybody is so important here.  It has to be owned by all of us—a preparatory time.

This preparatory time, however much it was cloaked in indigenous cultural understandings, could not be fully removed from the temporality of punishment enforced by the colonial state, a fact not lost on many indigenous prisoners who counted their time not by the cadences of indigenous healing, but strictly by the state’s penological clock. Some testimony lamented the growing practice of “maxing out” a sentence by which prisoners could escape the supervision and guidance that parole and state supervision entailed. Senator Will Espero testified that the legislature had an interest in reducing prison-time served in order to maintain or augment this supervisory time.

We wanted to be able to put that person out there after 18½ years, so that in the remaining 1½ years that individual would have monitoring and oversight. Okay. Because some inmates are maxing out and once they maxed out, they have no oversight. And there were people within the community who were against that, although the victims advocates in the Prosecutor’s Office even said that this is what the victims wanted because when a person is out, at least they know that to a small extent, someone is tracking them.

The support for supervisory programs extended beyond victims and their representatives in the Legislature. Many who worked for NGOs, whose cultural and rehabilitative programs for Native Hawaiians directly or indirectly depended on this coercive apparatus, also voiced this support. Yet for some advocates for indigenous prisoners, maxing out was an appropriate anti-colonial practice. “What [inmates are] thinking straight away is I’d rather max out my sentence, serve a long sentence, so I don’t have to deal with my oppressor anymore.  Am I correct?  It’s dead right” (Heteraka). Varna Nekehi, an inmate advocate on Maui, talked about her son who was a prisoner in Arizona, and his desire for permanent exile. “When I told him, son they’re working on getting you guys home, you know what he told me? I no like go home. I like stay over here. And I was like wow, what’s wrong with this picture? He no like come home to our state community facilities?” Comments such as these reinforce what Keahiolalo-Karasuda[67] has observed: “The teaching of self-control echoes the ethos of missionary doctrine. The failure to contextualize rehabilitation as an extension of dominance means that contemporary facilitators of restoration perpetuate secularized ideals that similarly reflect missionary subordination of Kanaka who were deemed subjects of dependency.”

The through-the-looking-glass ideological tension between the rational choices of Hawaiian inmates to max out a sentence and dampen this colonial echo, and the efforts of NGOs to force assimilation to an alternative, Hawaiian rationality in the name of rehabilitation, raises significant questions about the relationship of penal reform to the penal subject. Rational behaviour is the ideological sine qua non of neoliberal penology that assumes criminal behaviour to be imbued with bad decisions justifying incarceration without sociological limit. In what manner does the construction of indigeneity by NGOs avoid becoming parasitic upon this ideology? And in what ways does indigenous rehabilitation escape the colonial project of forcing prisoners to be free, of reducing them to civility, in Peter Fitzpatrick’s[68] ironic terminology? If Hawaiian prisoners are not already steeped in culturally-relevant knowledge of conflict resolution and self-understanding, on what grounds can a challenge be staged to the neoliberal sense of the danger posed by criminals whose choices are the origins of individual and social pathologies? And yet, acting rationally to escape state control, what would make native Hawaiian prisoners distinctive from any other prisoner, their ethnicity or their race overrepresented in prison or not?

These questions highlight the neoliberal obstructions to indigenous politics that bubbled insistently to the surface when representatives of the Honolulu Prosecuting Attorney and the state’s Attorney General abstained from the finding that “Proactive policy initiatives, including those promoting a rehabilitative model of incarceration … must be effectuated [or] Hawai‘i may continue to face a crisis”.[69] Neither would support the crisis language, and the Attorney General’s representative added that “this Finding does not seem directly or clearly related to reducing the overrepresentation of Native Hawaiians in the justice system relative to other ethnic groups”.[70] Mitch Roth, a deputy prosecutor testifying at the hearings, put it baldly: “The assumption is that the system is somehow against Hawaiians. I don’t see that as being true.”

Elizabeth Povinelli has argued that settler colonies govern themselves, to a large degree, by imagining their own modern temporalities in contrast to an imputed prior time attributed to the indigenous, which is “necessary to produce the modern western form of nation-state sovereignty even as it continually undermines this same form”.[71] These competing temporalities were evident in the diverse testimonial narratives and conflicts over the Task Force Report causally explaining disproportionate Hawaiian incarceration. Arguments that Hawaiian inmates were suffering from political events over one hundred years old—a colonial horizon that the multicultural state no longer held firmly in its view—risked trapping indigenous prisoners in a pre-modern time of feuding savagery, while simultaneously reinforcing the modern benevolence of the settler state. The causal factors leading to racial and indigenous over-incarceration have been notoriously unclear in criminological theory, but theorists have not sufficiently considered the importance of colonial governance and its numerous subject positions. Factors of generational trauma stemming from the loss of sovereignty, unconscious bias against Hawaiians, poverty and lack of adequate counsel were all listed in the findings of the Task Force, with the dissent or abstention of representatives of the prosecuting attorneys. Despite these denials, the conflicts over causality and the nature of the penal subject demonstrate that penal reform could not easily be divorced from the violence of colonial history.

Place

In what ways does the political will to return (mostly Hawaiian) prisoners to Hawai‘i to serve their sentences create opportunities to politicise dispossession? The most extreme rehearsal of the settler-colonial logic of elimination is exile: not simply the cultural replacement and forced assimilation of indigenous peoples, but their actual removal. Can the ending of territorial exile escape this logic? What makes the return of prisoners to Hawai‘i something more than an accomplishment that can be trumpeted by the governor as a sign of multicultural inclusion, and how might it buttress a challenge to mass incarceration—an internal exile—that continues as an enduring show of settler-colonial power?

The testimony of Bob Merce, a lawyer with the non-profit public-interest Native Hawaiian Legal Corporation that offers services in the legal area of Native Hawaiian rights, illustrated the political ambivalence that underlies these questions. Merce observed that Hawai‘i’s incarceration rate is 447 per 100,000, which is lower than the American average but tenth highest in the world if Hawai‘i were to be considered a nation. “How much can we reduce it?” he asked. “I don’t know, maybe two-thirds in five years. … In five years, let’s make it 117 per 100,000 like Canada.” The heuristic projection of Hawai‘i as a nation is aspirational, and the comparison to Canada serves in Merce’s narrative as a call to a more enlightened approach to incarceration, with evident advantages for many who would be released in this alternative accounting of just deserts. But Canada is also a settler-colonial nation that disproportionately locks up its First Nations’ populations, and has a long history of using incarceration of indigenous peoples as a tool of assimilation and dispossession[72], making it a suspicious sovereign to emulate. Despite these analogical limits, the framing of Hawai‘i’s incarceration policies as an issue of sovereignty makes a symbolic link between mass incarceration and exile that others tried to pursue.

Efforts to deepen the sovereign articulation of place and highlight the violence of exile in taskforce testimony frequently turned to spiritual meanings. Indigenous religion played a key narrative role because the law allows limited religious rights for prisoners, providing activists a legitimate handle on this issue, and because land and the means of interacting with it—‘āina—are vital to native Hawaiian ontologies. Sharla Manley, a staff attorney with the Native Hawaiian Legal Corporation representing six Hawaiian inmates in a lawsuit against a private Arizona prison, testified that in light of the importance of ‘āina, exile was

nothing short of genocide carried out by every day ordinary means….What has happened is that Native Hawaiian men have been ripped away from their families, their communities, and from the ‘āina….The psychic and spiritual impact of this removal of being alienated from their ‘āina is devastating. How are they to heal? How are they to atone?

According to Kaiana Haili, a long-time Hawaiian activist who was hired by the Arizona prison as a spiritual advisor for Hawaiian prisoners, prison officials repeatedly impeded Hawaiian cultural and religious practices.

[Prisoners] cannot speak their ‘olelo [language] in public; they can’t use their ‘olelo in their pods. Spanish people speak Spanish. The Samoans speak their language. But we can’t speak ours, even when we have classes up there. They can’t dance hula, its threatening motions looks like fighting tactics ….they can’t practice outside … Braddah brought all these books up there, guess what happened? I saw two shelves, most of it was pocket books, and most of it was the real manini [small] kind stuff. The rest of it got confiscated in raids and burned.

The distinctiveness of Hawaiian culture is projected in this testimony as ultimately incompatible with North American norms for prison discipline and safety, requiring education of prison authorities as well as the education of prisoners who may have lost the pathways to their ancestral knowledge.

In order to argue for the cultural significance of these freedoms, Haili articulated the anchoring of religion to place within an ethical notion of sovereignty that privileged indigenous authority over the juridical.

When we went to Saguaro [prison], they asked us to bless the prison, I too have a hard time with that. … But at the same time from Aunty Ulu and my kupuna that I learned from, they said well, if you want to protect the men, you must first go and ask the natives of that place, and that’s what I did. I called two of the native tribes in Arizona there and I asked their permission for us to practice our belief system on their land, and that’s kind of what opened the door as a lot of other kupuna came to our aid.

The alternative sovereignty imagined here—one controlled by native peoples who govern over place—has significance for indigenous religious and penal practices that make place, particularly the relationship to ‘āina, a critical response to exile.

Many who testified talked about the value of the traditional notion of pu‘uhonua for re-conceptualising punishment in Hawaiian terms. The historian Lilikalā Kame‘eleihiwa[73] explains that “in traditional times, the principle of Pu‘uhonua allowed relief from the strict kapu system. For should anyone transgress a kapu, fleeing to the sanctuary of the Pu‘uhonua allowed one to escape from the required death penalty.” A poem written by Renwick Valentine Ili‘ili Puna Tassill and shared for the taskforce began,

Puʻuhonua,
Whenever you did wrong,
‘Cause you couldn’t get along,
There was a place to go—Puʻuhonua.
When things weren’t going your way,
And you know you couldn’t stay,
There was a place to go—Puʻuhonua.
When things with you eren’t right,
And you had to run, take flight,
There was a place to go—Puʻuhonua.
From the mountain to the sea,
There was no place to flee.
The only place to be—Puʻuhonua.

Transposed into the conditions of contemporary punishment, the concept of pu‘uhonua cemented the idea of sanctuary to the necessity of place, sometimes imagined to be bounded by the prison walls, other times in the shadows of those walls as a form of penal diversion, but always contingent upon its location between mountain and sea: in ‘āina. Pu‘uhonua was not realisable in North America.

Where once a transgressor of the ancient law could be protected from punishment simply by safely reaching a pu‘uhonua, the contemporary pu‘uhonua worked, in the imagination of those who testified, by facilitating a personal metamorphosis that private prisons located far away could not effect. Testimony from those who run re-entry and recovery programs for prisoners linked human transformation to the practice of care for plants and the appreciation of nature that outdoor labour in Hawai‘i could provide.

For those who are brought out of incarceration…we often go up to Ka‘ala Lo‘i (taro patch) in Waianae, and what happens there is, you know, when they first come … they question why … why are they pulling weeds? How does that keep them clean and sober? … The benefits of doing this is that all of a sudden, they start to hear the wind going through the trees, and they’ll actually stop and say, “What is that?” … That’s the beginning—that’s the beginning of healing (Leimomi Cruz-Losano).

Malina Kaulukukui, a University of Hawai‘i School of Social Work specialist, described how this process unfurled from these beginnings, and how it depended on place.

A spiritually impoverished person must first restore herself from the inside out. We’ve heard that all day long, from the inside out. This must start with restoring and nurturing her identity by reintroducing the richness of her traditional and contemporary culture and reinforcing the values in thinking that made Hawaii a proud nation. Our search for renewed values is also a search from renewed pride and our traditions and to meet head on with [what] George Kanahele calls the ghost of inferiority.  So we practice kuleana.  We greet most days with a simple oli or chant that helps us get grounded. We underscore the relationship between self, nature and one’s spirituality and encourage acting in ways that promote integrity and productivity. We regularly work the ‘āina high up in Kalihi Valley and return to cook the luau leaves and the kalo. We hike the forest of ko‘olau poko for bamboo to make nose flutes or walk in the riverbed to collect smooth pebbles, ‘ili‘ili for hula.  We make amends for our destructive behaviour by giving back to kupuna at Lunalilo Homes and in doing so we experience the joy and the power of being with our ancestors. And we make little mental notes about what kind of kupuna (elders) we want to be someday. We cherish the opportunity to mālama (care for) our children. Tentatively, we move outwardly from self to family and to the community at large and our na‘au, our spirits, grow brighter.

This expansive concept of pu‘uhonua, moving from individual to community at large, ostensibly fights recidivism not by breaking an illegitimate state authority, but by working within the coercive shadow of the law to heal through forceful readjustment at home. In this manner, the reconstruction of a contemporary pu‘uhonua that has been adapted to the Women’s Community Correctional Institution and some diversion programs perhaps loosely resembled its historical practice, but it strongly reinforced a sovereign imagination.

If testimony about pu‘uhonua was tied to ‘āina and to history, and thus useful for promoting sovereignty, it was also a concept that was thoroughly Hawaiian even if other prisoners might be included. Pu‘uhonua was an indigenous birthright. As Carmen Heteraka testified, “the pu‘uhonua … is valid ‘cause it’s irrefutable: it’s in our genealogy.” Distinguishing pu‘uhonua from other efforts of penal reform did more in these hearings to make indigenous political values heard over the economic rationales and gestures towards multicultural reconciliation that officially legitimated the efforts to return prisoners to Hawai‘i.

The metaphors of healing and transformation that emerged in testimony about pu‘uhonua were not just deployed to reimagine the rehabilitative potential of the penal subject, but also to criticise a system of incarceration that strips native prisoners from a place that is integral to their genealogy and identity. For many whose professional livelihoods depended upon programs dedicated to pu‘uhonua, their testimony concluded that pu‘uhonua was not just for Hawaiian prisoners—others could and did benefit from programs that were based on this idea. Indeed, one prison warden was said to have announced that he wanted his vision of pu‘uhonua to be constitutive of his prison, suggesting that it could be generalised to a broad population of prisoners. Although the concept of pu‘uhonua would justify bringing prisoners home and perhaps one day decrease prison populations, its close association with the carceral state ultimately exchanged the value of place for the critique of mass incarceration and did little to foreground the immediate role of mass incarceration in the ongoing dispossession of indigenous peoples from their lands.

Conclusion

What can be argued for within the framework of disproportionality of punishment? Can a focus on the inequalities of punishment do more for indigenous claims in Hawai‘i and other indigenous peoples in settler-colonial states? The complex ways that settler colonies deploy the idea of equality to legitimate their sovereignty give indigenous efforts to politicise inequalities more traction than struggles to redress claims about the past and ongoing violence of colonial governance. The unwillingness of many settlers to consider the impact (indeed, even the reality) of state crime, to imagine distinctive harms suffered by indigenous “criminals” and prisoners historically denied the ability to practice their culture on their land, or to consider the implications of the settler value of equality for the respect of indigenous sovereignty, limits the critique of punishment for native peoples. These aspects of colonial governance mean that the vital arguments against disproportionate incarceration of indigenous peoples rarely attend simultaneously to the structures making the indigenous subject seem more dangerous and “savage” than other “criminals”, and to the structures of mass incarceration in the US that have victimised too many poor people. The “justice” of an equal consideration for punishment by the colonial state, without accounting for the state’s violent foundation, which permits it to punish, is what Jacques Derrida has called a “mystical foundation of law”[74] and Achille Mbembe an “imaginary capacity”.[75] Such “justice” is a political victory that too many settlers can cheer as a sign of their well-placed faith in the multicultural justice and in the fundamental non-violence of the state.

The respect for colonial law has been a signal prerequisite for recognition in Hawai‘i and most other colonial societies. Those who testified for this taskforce assured all who listened that Hawaiians were and would remain a people of the law. Fidelity to law legitimated attempts to make punishment more Hawaiian through culturally specific programs that needed state approval, and it was the underlying justification for bringing prisoners back home. And yet attention to punishment by some activists and some former prisoners who experienced its coercive force did try to reveal the lurking reality of colonial violence and dispossession. These reminders of state crime do not, perhaps, go far enough rhetorically as they still remain bound to a framework of law and crime while colonial dispossession is anchored as much by the breach of law (e.g. the overthrow of the Queen) as by its dispersion.[76]

The implicit framework of exile that this paper has brought to this policy struggle has the potential to stand apart from the efforts of the state to celebrate its enlightenment and to demand a respect for law. Exile is, after all, a punishment contrary to the UN Universal Declaration of Human Rights[77], and therefore corrosive of state legitimacy. The exile to foreign and distant prisons has been, perhaps, the most difficult for the state of Hawai‘i to justify. But the three forms of exile that this paper has examined—territorial exile, cultural exile, and political exile—are all interdependent. The internal exile of the deprivation of culture that mass incarceration has brought to many native Hawaiians and their impoverished families cannot easily thrive without a limited political imagination of disproportion and multicultural equality that is unable to—that refuses to—account for ongoing colonial violence. The efforts to end the territorial exile of prisoners held in off-island prisons have been articulated to depend both on the fact of exile from long-held cultural and spiritual practices, and the commitment to law and improved imprisonment. The mass incarceration of Hawaiians, and the state’s now-ending practice of incarcerating them elsewhere, have helped to maintain the image of a dangerous indigenous people unfit for modern life and unable to contribute to its political governance, subtly reinforcing internal exile. All three forms of exile converge on the troubled reality of a stolen place.

The prison has endured throughout the colonial encounter in Hawai‘i and elsewhere, and it remains the tool of governance most steeped in the brutality of that encounter. The efforts of the state to entertain carceral reform, even where such reform is acknowledged to be economically inefficient, work to simultaneously narrow the field of political vision and to celebrate these limits. Among some activists, there remains hope that the violence of colonial dispossession that came to Hawai‘i with the prison will eventually escape its carceral and cultural bars, ending an exile revealed in the breaches of historical memory, the desecration of the land, the misuses of political power, and the destruction of families that perpetuate a legacy of dispossession.

Acknowledgments

The author thanks S. Krishna, Noenoe Silva, and Brenna Bhandar for offering helpful comments on earlier versions and takes full responsibility for the contents.

Notes

1. Oral testimony presented at the Native Hawaiian Justice Task Force, O‘ahu, Hawai‘i, June 7, 2012. Transcripts of testimony can be found at http://www.oha.org/nativehawaiianjusticetaskforce All non-referenced testimony before the NHJTF quoted in this article derives from these sources. [↑]

2. B.J. Reyes, “Abercrombie Pledges Isle Inmates’ Return,” Star-Advertiser, December 16, 2010, http://www.staradvertiser.com/news/20101216_Abercrombie_pledges_isle_inmates_return.html. [↑]

3. Office of Hawaiian Affairs, “The Disparate Treatment of Native Hawaiians in the Criminal Justice System” (Honolulu: OHA, State of Hawaii, 2010), http://www.oha.org/sites/default/files/ir_final_web_rev.pdf. [↑]

4. Self-identified Native Hawaiians make up 24% of the population of Hawai‘i, but at least 39% of the prisoners and 41% of the parole revocations, according to this study. Indigenous peoples have been incarcerated at rates far above their analogous population in most other settler-colonial states. See Cunneen, Chris. “Criminology, Human Rights and Indigenous Peoples.” University of New South Wales Faculty of Law Research Series 2008, May. http://law.bepress.com/unswwps-flrps08/art32, 2008. [↑]

5. Hawaii Advisory Committee to the US Commission on Civil Rights 2011; “The Native Hawaiian Justice Task Force Report” 2012. [↑]

6. See Ian Urbina, “Hawaii to Remove Inmates Over Abuse Charges,” The New York Times, August 26, 2009, sec. US, http://www.nytimes.com/2009/08/26/us/26kentucky.html; Beth Musgrave, “Hawaii Lawsuit Alleges Abuse at Otter Creek,” Bluegrass Politics, 2009, http://bluegrasspolitics.bloginky.com/2009/10/07/hawaii-lawsuit-alleges-abuse-at-otter-creek/. [↑]

7. See Nelson Daranciang, “Religious Freedom Denied, Suit Claims,” Star Advertiser, February 12, 2011, http://www.staradvertiser.com/features/20110212_Religious_freedom_denied_suit_claims.html?id=116047404. [↑]

8. Jonathan Goldberg-Hiller, “Reconciliation and Plasticity in a Postcolonial Hawai‘i,” Law, Culture and the Humanities 8, no. 3 (2012): 485–512. [↑]

9. Eric K. Yamamoto and Ashley Kaiao Obrey, “Reframing Redress: A ‘Social Healing Through Justice’ Approach to United States-Native Hawaiian and Japan-Ainu Reconciliation Initiatives,” Asian American Law Journal 16, no. 1 (2009): 5; Eric K. Yamamoto, Interracial Justice: Conflict and Reconciliation in Post–Civil Rights America (NYU Press, 2000). [↑]

10. Candace Fujikane, “Introduction,” in Asian Settler Colonialism: From Local Governance to the Habits of Everyday Life in Hawai’i, ed. Candace Fujikane and Jonathan Okamura (Honolulu: Univ of Hawaii Pr, 2008), 1–46; See also Renisa Mawani, Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871-1921 (Vancouver: UBC Press, 2009); Enakshi Dua and Bonita Lawrence, “Decolonizing Anti-Racism,” Social Justice: A Journal of Crime, Conflict and World Order 32, no. 4 (2005); Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006): 387–409. [↑]

11. Michel Foucault writes that a dispositif is “a thoroughly heterogeneous ensemble consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral and philanthropic propositions—in short, the said as much as the unsaid. … The [dispositif] itself is the system of relations that can be established between these elements” (Foucault 1980, 194). In this paper, I use the concept of dispositif to orient myself towards an expansive approach to criminology that includes the study of crime, the popular discourses of reform and the institutions and ideas that enable them. [↑]

12. Evgeni i Bronislavovich Pashukanis, Law and Marxism: A General Theory, trans. C. J Arthur (London: Ink Links, 1978), 168–9; See also Isaac Balbus, “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law,” Law & Society Review 11 (1977): 571. [↑]

13. Douglas Hay, “Property, Authority and the Criminal Law,” in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1976), 17–63. [↑]

14.  David Garland has argued that while Hay’s historical identification of this class mechanism may have changed, “The power to determine if a person lives or dies, and the power to influence that determination, is still a resource, a form of property, a kind of capital” David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition (Oxford University Press, 2010), 293. [↑]

15. Michel Foucault, Discipline & Punish: The Birth of the Prison (Vintage, 1995), 226. [↑]

16. J. J. Brochier and Michel Foucault, “Prison Talk: An Interview with Michel Foucault,” in Power/Knowledge: Selected Interviews and Other Writings, ed. Colin Gordon (New York: Pantheon Books, 1980), 40. [↑]

17. Alex Lichtenstein, “The Private and the Public in Penal History: A Commentary on Zimring and Tonry,” in Mass Imprisonment: Social Causes and Consequences, ed. David Garland (London: SAGE, 2001), 171; See also Isaac Balbus, The Dialectics of Legal Repression: Black Rebels Before the American Criminal Courts (Russell Sage Foundation, 1973). [↑]

18.  Angela Y Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003). [↑]

19. David Garland, “Criminological Knowledge and Its Relation to Power-Foucault’s Genealogy and Criminology Today,” Brit. J. Criminology 32 (1992): 408. [↑]

20. Ibid., 411–12. [↑]

21. Peter Fitzpatrick, Modernism and the Grounds of Law, Cambridge Studies in Law and Society (Cambridge ; New York: Cambridge University Press, 2001), 80; See also Sally Engle Merry, Colonizing Hawai’i: The Cultural Power of Law (Princeton: Princeton University Press, 2000). [↑]

22. Samera Esmeir, Juridical Humanity: A Colonial History (Stanford, CA: Stanford University Press, 2012). [↑]

23. Laura E. Gómez, “Race, Colonialism, and Criminal Law: Mexicans and the American Criminal Justice System in Territorial New Mexico,” Law & Society Review 34, no. 4 (January 1, 2000): 1129–1202, doi:10.2307/3115133. [↑]

24. Luana Ross, Inventing the Savage: The Social Construction of Native American Criminality (University of Texas Press, 1998). [↑]

25. See also Jeffrey Ross, Native Americans and the Criminal Justice System (Boulder  Colo.: Paradigm Publishers, 2006); Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788-1836 (Harvard University Press, 2010). [↑]

26. Yasuhide Kawashima, Puritan Justice and the Indian : White Man’s Law in Massachusetts, 1630-1763, 1st ed.. (Middletown, Conn: Wesleyan University Press ; Scranton, Pa, 1986), 9. [↑]

27. Biko Agozino, “Imperialism, Crime and Criminology: Towards the Decolonisation of Criminology,” Crime, Law and Social Change 41, no. 4 (2004): 349; See also Aimé Césaire, Discourse on Colonialism, trans. Joan Pinkham (Monthly Review Press, 2001), 36 and ff. [↑]

28. Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (Continuum International Publishing Group, 1999), 27; Wolfe, “Settler Colonialism and the Elimination of the Native.” [↑]

29. Chris Cunneen, “Indigenous Incarceration: The Violence of Colonial Law and Justice,” 2011, http://law.bepress.com.eres.library.manoa.hawaii.edu/unswwps-flrps11/art3/; Chris Cunneen, “Postcolonial Perspectives for Criminology,” in What Is Criminology?, ed. Mary Bosworth and Carolyn Hoyle (Oxford University Press, 2011), 249–66; Chris Cunneen, “Assimilation and the Re-Invention of Barbarism” (University of New South Wales Faculty of Law Research Series, 2008); Chris Cunneen and Eileen Baldry, “Contemporary Penality in the Shadow of Colonial Patriarchy,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, January 6, 2013), http://papers.ssrn.com/abstract=2196709. [↑]

30. Hawaiian society distinguished the ali‘i on the basis of genealogy and assigned to some particular governing roles. [↑]

31. Merry, Colonizing Hawai’i: The Cultural Power of Law; RaeDeen Keahiolalo-Karasuda, “Carceral Landscape in Hawaii: The Politics of Empire, the Commodification of Bodies, and a Way Home,” in Abolition Now!: Ten Years of Strategy and Struggle against the Prison Industrial Complex, ed. Critical Resistance (Oakland (CA); Edinburgh: AK, 2008), 121–35; Denise Ferreira da Silva, Toward a Global Idea of Race (U of Minnesota Press, 2007). [↑]

32. Merry, Colonizing Hawai’i: The Cultural Power of Law[↑]

33. Keahiolalo-Karasuda, “Carceral Landscape in Hawaii: The Politics of Empire, the Commodification of Bodies, and a Way Home.” [↑]

34. RaeDeen Keahiolalo-Karasuda, “The Colonial Carceral and Prison Politics in Hawai’i” (Ph.D., University of Hawai’i at Manoa, 2008), 164 and ff., http://search.proquest.com.eres.library.manoa.hawaii.edu/docview/304603548/abstract?accountid=27140. [↑]

35. Merry, Colonizing Hawai’i: The Cultural Power of Law, 189 and ff. [↑]

36. This issue was recently made prominent in legislation to renew the Violence Against Women Act and close the gap opened by Oliphant v. Squamish Indian Tribe (1978) that limited tribal criminal jurisdiction over non-Indians. This gap had left women living on reservations vulnerable to sexual predation by tribal outsiders. The renewed VAWA has closed this gap. President Obama noted at the time of the Act’s signing that criminal jurisdiction was equivalent to sovereignty: “Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear.  And that is what today is all about” Barack Obama and Joseph Biden, “Remarks by the President and Vice President at Signing of the Violence Against Women Act,” March 7, 2013, http://www.whitehouse.gov/photos-and-video/video/2013/03/07/lets-move-faith-and-communities-challenge-winners#transcript. [↑]

37. J. Kēhaulani Kauanui, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Durham: Duke University Press, 2008), 6; Neal Milner and Jonathan Goldberg-Hiller, “Feeble Echoes of the Heart: A Postcolonial Legal Struggle in Hawai`i,” Law, Culture and the Humanities 4, no. 2 (2008): 224–47, doi:10.1177/1743872108091475. [↑]

38. Approximately two million acres were “ceded” by the Kingdom to the United States after its forced annexation. The legal and moral title to this land is still in dispute with the state of Hawai‘i claiming sovereign control and many native Hawaiians arguing for its return to a native authority. See Kauanui 2008a; Van Dyke 2008; Duus 2003; Lindsey 2009; Iijima 2000. [↑]

39.  Elizabeth Strakosch and Alissa Macoun, “The Vanishing Endpoint of Settler Colonialism,” Arena Journal 37, no. 38 (2012): 45. Strakosch and Macoun identify several means to eliminate indigenous political difference, which they see as a target for settler-colonial elimination. These include physically eliminating indigenous people, severing their physical connections to lands that lie at the heart of their political systems, breaking down families and communities; drawing indigenous polities into the state and reforming them. Several of these strategies, I argue, are advanced by mass incarceration. [↑]

40. US Public Law 103-150 (23 November 1993). [↑]

41. 528 US 495 (2000). [↑]

42. 556 US 163 (2009). [↑]

43. Fujikane, “Introduction,” 4 and ff.; Dean Itsuji Saranillio, “Colonial Amnesia: Rethinking Filipino American’’ Settler Empowerment in the U.S. Colony of Hawai’i,” in Asian Settler Colonialism: From Local Governance to the Habits of Everyday Life in Hawai’i, ed. C. Fujikane and J. Y Okamura (Honolulu: Univ of Hawaii Pr, 2008), 256–78; Chris K. Iijima, “Race over Rice: Binary Analytical Boxes and a Twenty-First Century Endorsement of Nineteenth Century Imperialism in Rice v. Cayetano,” Rutgers Law Review 53 (2001 2000): 91. [↑]

44. Jodi A. Byrd, Transit of Empire: Indigenous Critiques of Colonialism (University of Minnesota Press, 2011). [↑]

45. Ibid., 221; See also Kauanui, Hawaiian Blood; Elizabeth A. Povinelli, “The Governance of the Prior,” Interventions 13 (March 2011): 20 and ff., doi:10.1080/1369801X.2011.545575. [↑]

46. Haunani-Kay Trask, From a Native Daughter : Colonialism and Sovereignty in Hawai’i (Monroe, Me.: Common Courage Press, 1993), 25. [↑]

47. Tetsuden Kashima, “The Territory of Hawaii,” in Judgment without Trial : Japanese American Imprisonment during World War II (Seattle: University of Washington Press, 2003), 67–87. [↑]

48. Jonathan Y. Okamura, “Race Relations in Hawai’i during World War II: The Non-Internment of Japanese Americans,” Amerasia Journal 26, no. 2 (2000): 117–41. [↑]

49.  See also David E Stannard, Honor Killing: Race, Rape, and Clarence Darrow’s Spectacular Last Case (New York, NY: Penguin, 2006); Gary Okihiro, Cane Fires: The Anti-Japanese Movement in Hawaii, 1865-1945 (Temple University Press, 1992). [↑]

50.  Noel Kent, Hawaii: Islands Under the Influence (New York: Monthly Review Press, 1983), 129. [↑]

51. Haunani-Kay Trask, “Settlers of Color and ‘Immigrant’ Hegemony: ‘Locals’ in Hawai’i,” in Asian Settler Colonialism: From Local Governance to the Habits of Everyday Life in Hawai’i, ed. Candace Fujikane and Jonathan Okamura (Honolulu: Univ of Hawaii Pr, 2008), 45–65; Fujikane, “Introduction,” 4. [↑]

52. Byrd, Transit of Empire[↑]

53. Yamamoto and Obrey, “Reframing Redress,” 11. [↑]

54. Ibid., 18–19. [↑]

55. J. Kēhaulani Kauanui, “Colonialism in Equality: Hawaiian Sovereignty and the Question of U.S. Civil Rights,” South Atlantic Quarterly 107, no. 4 (October 1, 2008): 641, doi:10.1215/00382876-2008-010; See also Brenna Bhandar, “Race, Space and the Law: Unmapping a White Settler Society.,” Canadian Journal of Women & the Law 16, no. 1 (2004): 226–34, doi:Book Review; Elizabeth A. Povinelli, “Indigenous Politics in Late Liberalism,” in Culture Crisis: Anthropology and Politics in Aboriginal Australia, ed. Jon Altman and Melinda Hinkson (17-31: NewSouth Publishing, 2010); G. Coulthard, “Indigenous Peoples and ‘the Politics of Recognition,’” New Socialist 58 (2006): 9–12. [↑]

56. Strakosch and Macoun, “The Vanishing Endpoint of Settler Colonialism,” 52. [↑]

57. J. Rancière, “Who Is the Subject of the Rights of Man?,” South Atlantic Quarterly 103, no. 2–3 (2004): 303. [↑]

58. “The Native Hawaiian Justice Task Force Report,” 2012, 18, http://www.oha.org/sites/default/files/2012NHJTF_REPORT_FINAL_0.pdf. [↑]

59. Sigmund Freud, Moses and Monotheism (Random House USA Inc, 1996); Fitzpatrick, Modernism and the Grounds of Law[↑]

60. Frantz Fanon, Black Skin, White Masks (New York: Grove Press, 1967). [↑]

61. Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985); Robert Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1601. [↑]

62. Liz Philipose, “The Politics of Pain and the End of Empire,” International Feminist Journal of Politics 9, no. 1 (2007): 62, doi:10.1080/14616740601066390; Catherine Malabou, “Post-Trauma,” in Telemorphosis: Theory in the Era of Climate Change, ed. Tom Cohen (Ann Arbor: Open Humanities Press, 2012), 226–38, http://openhumanitiespress.org/telemorphosis.html. [↑]

63. Although the US Government promised its return in 1993, formal relinquishment of the island was not made until ten years later. [↑]

64. Merry, Colonizing Hawai’i: The Cultural Power of Law[↑]

65. See also Ross, Inventing the Savage[↑]

66. See Ana Messuti, Time As Punishment (Davies Group Publishers, 2008); Jonathan Goldberg-Hiller and David T. Johnson, “Time and Punishment,” Quinnipiac L. Rev. 31 (2013): 621. [↑]

67. Keahiolalo-Karasuda, “The Colonial Carceral and Prison Politics in Hawai’i,” 164. [↑]

68. Fitzpatrick, Modernism and the Grounds of Law[↑]

69. “The Native Hawaiian Justice Task Force Report,” 8. [↑]

70. Ibid., 19. [↑]

71. Povinelli, “The Governance of the Prior,” 15. [↑]

72. Madeleine Christine Jacobs, “Assimilation Through Incarceration: The Geographic Impositions of Canadian Law over Indigenous Peoples” (Ph.D. Dissertation, Queens University, 2012); Samantha Jeffries and Christine E.W. Bond, “The Impact of Indigenous Status on Adult Sentencing: A Review of the Statistical Research Literature From the United States, Canada, and Australia,” Journal of Ethnicity in Criminal Justice 10, no. 3 (2012): 223–43, doi:10.1080/15377938.2012.700830. [↑]

73. Lilikalā Kameʻeleihiwa, Native Land and Foreign Desires:  How Shall We Live in Harmony (Ko Hawaiʻi ʻĀina a Me Nā Koi Puʻumake a Ka Poʻe Haole:  Pehea Lā E Pono Ai?) (Honolulu: Bishop Museum Press, 1992), 72. [↑]

74. Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority,’” Cardozo Law Review 11 (1990): 943 and ff. [↑]

75. Joseph-Achille Mbembe, On the Postcolony (Berkeley: University of California press, 2001), 25. [↑]

76. Nasser Hussain, The Jurisprudence of Emergency : Colonialism and the Rule of Law, Law, Meaning, and Violence (Ann Arbor: University of Michigan Press, 2003). [↑]

77. “No one shall be subjected to arbitrary arrest, detention or exile.” Article 9, adopted 16 December 1949. [↑]

Jonathan Goldberg-Hiller is Professor of Political Science at the University of Hawai‘i at Mānoa where he teaches sociolegal theory. He is co-editor of a book series, Global and Insurgent Legalities at Duke University Press, and former co-editor of The Law & Society Review. He is currently writing a book on the legal and political significance of night.
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