A Tale of Two Deaths: Necropolitics in the Criminal Justice System

Aboriginal and Torres Strait Islander readers should be aware that this article contains the names of deceased persons. All readers are respectfully advised that this article contains references to deaths in custody that may cause distress.

This is a story of two deaths that occurred in two different locations, 15,000 km apart; one in Australia, and one in the United States. What these deaths have in common is the context in which they occurred.   Both were men in their 30s, both were black, and both deaths occurred as a result of the criminal justice system’s colonial necropolitics, in which lives are subjected to the power of death through technologies of control, like the police.  Mulrunji Doomadgee, an Indigenous Australian man, died in police custody on the 19th November 2004 and Rudy Eugene, a Haitian-American man, died as a result of police inflicted gunshot wounds on 26^th May 2012.  The fetishistic disavowal of police violence and their deaths demonstrates the precarity of Indigenous and minority lives in these countries.

Necropolitics in the Colonies

At around 10:20a.m. Mulrunji Doomadgee was arrested for being a ‘public nuisance’ because he had deemed to question police behaviour towards another indigenous man.  By 11:00a.m., Doomadgee was dead as a result of his liver being “virtually completely ruptured – ‘cleaved in two’” (Queensland Government, 2006).

At the police watchhouse on the small island where Doomadgee lived, he argued with Senior Sergeant Hurley and struck out at him, catching him on the jaw.  Hurley was “clearly surprised at this action which was inconsistent with his experience of the response from Palm Islanders to his authority” (Queensland Government, 2006).  It was reported that Hurley responded by hitting Doomadgee in the side in the vicinity of his ribs. It was also reported that following this Doomadgee fell silent and was then dragged into the police station with his feet dragging.

Doomadgee’s injuries, according to the expert pathologist’s autopsy results, were “more commonly found in people who suffered a high-speed vehicle accident, plane crash or skiing accident involving a collision with a tree” (as cited in Tedmanson, 2008).  However, the State’s Director of Public Prosecution found no evidence of police mismanagement and stated that Doomadgee’s death was accidental.  The suggestion in the Director’s statement was that Doomadgee simply “tripped and fell and in so doing broke his ribs and cleaved his own liver in two” (Tedmanson, 2008), exonerating the police.

Unlike Doomadgee, Rudy Eugene was committing a heinous act in which “he ate the face of a homeless man” (Linnemann et al., 2014).  Although Eugene’s act was gruesome, it must be pointed out that not only was he unarmed, but he was also naked at the time of his death, when a police officer fired four bullets into him.   The police officer was so panicked by what he saw he fired blindly, causing two bullets to also strike Eugene’s victim.  Eugene’s “street-level execution failed to generate any sustained criticism of police violence or police power more generally” (Linnemann et al., 2014).

Necropolitics and Colonialism

Australia and the U.S. are settler-colonial countries and at the heart of settler-colonialism is a sovereignty that wishes to extend its reach by taking political control of another country.  This fits in with the notion of “an exclusive authority exercised by an absolute sovereign power” (Robbins, 2010).  Unlike liberal or contractarian conceptions of sovereignty, this ‘absolute sovereign power’ has the capacity to “define who matters and who does not, who is disposable and who is not” (Mbembe, 2003).  In both countries, violence is racialised, omnipresent and normalised and it can be said that they are in a state of war in which dehumanisation and unequal relations of power are deeply embedded. This is what is referred to as ‘necropolitics’, which is the “material destruction of human bodies and populations” (Mbembe, 2003).

The legacy of colonial dehumanisation of races is still evident in necropolitical governance today, one in which colonised Indigenous peoples, and other minority groups, are positioned as “‘inferior’, less than human” (Tedmanson, 2008).  Moreover, they are subjected to the “destruction and elimination of a culture” (Tedmanson, 2008), which relegates them to a realm of ‘death-worlds’.  Death-worlds are “forms of social existence in which vast populations are subjected to conditions of life conferring upon them the status of living dead” (Mbembe, 2003).  Minority groups with the conferred living dead status exist through the politico-cultural process of zombification, which is to say they are biologically alive, but socially and politically dead.

The power of social and political death traps the living dead in their ‘death worlds’ where they are “alive but in a permanent state of injury, in a phantom-like world of horrors and intense cruelty and profanity” (Vadasaria, 2015).  The living dead are not metaphorical, “rather [they are] the literal embodiment of those dispossessed and socially dead others” (Linnemann et al., 2014).  Therefore, as with zombies, the State believes “[y]ou can put them down and because they are already dead, you need not feel guilty about them” (Trevor Fencott as cited in Linnemann et al., 2014).  Why would there be guilt for ‘bare life’ because they are, as Diken puts it, “biological life stripped of (life) forms and political rights and thus located outside the polis” (as cited in Tedmanson, 2008).

Under these conditions, Indigenous peoples and other minority groups embody Agamben’s concept of homo sacer.  The concept of homo sacer was born in ancient Roman times, and is:

…the one who can be killed but not murdered (sacrificed).  Homo sacer occupies the non space within the law that is the zone of indistinction, of exception, the ‘no man’s (sic) land’ of the one who is ‘citizen’ at law, but who is by definition one without rights; the one who defines sovereign power by being within power but without powers (Tedmanson, 2008)

The deaths of both Doomadgee and Eugene echo the status of homo sacer because they were killed by an instrument of the ‘sovereign’ State, but it was not classified as murder, nor were they sacrificed; they were citizens in terms of the law, but had no rights whilst in custody, and finally by being powerless they highlighted the power of the sovereign.  Consequently, as homo sacer, both deaths occurred in the ‘state of exception’ (Agamben, 2003).

Situated at the “limits between politics and law” (Agamben, 2003), the ‘state of exception’ is defined by the sovereign, as the ‘absolute power’, as who decides who, or what, is classed as the exception.  This is done by the state temporarily suspending the rule of law (such as due process) so that it can justify the deaths of unarmed men and women whom it is deemed a threat.  In Doomadgee’s case, the coroner attributed police violence as a direct causal factor in Doomadgee’s death, but it was two years later, after the coroner’s report was released, that charges were laid against Snr Sergeant Chris Hurley.  When these charges were laid against Hurley, he was not suspended, and was eventually found not guilty at trial by an all-white jury.

The ‘state of exception’ still operates in most post-colonial settler states, but is most prominently discussed in relation to the anti-black violence in America (Smith, 2015, Hitchens, 2017, Smith, 2016).  Smith (2015) states that “[r]ace – as a social, historical, and political formation – continues to define not only expressions of citizenship we practice, but also the extent to which we are recognized as citizen-subjects at all” (p. 385).  In a ‘state of exception’ there is a significant disassociation between the equality of that written in documents like the Declaration of Independence, than that practiced by the settler-colonial ‘sovereign’ States, and their technologies of control (Smith, 2015). As the case of the shooting of the unarmed, naked, and vulnerable Eugene, which was deemed as legally justified and lawful because Officer Jose Ramirez ‘feared for his life, so no criminal charges were ever brought against him.

This ‘state of exception’ is evidenced by the “indiscriminate manner by which black people are killed, beaten, tortured, and violated by [these] state[s] with impunity” (Smith, 2015).  This ‘state of exception’ is evident in the deaths of people from Indigenous and other minority groups in the post-colonial countries.  The ‘state of exception’ exists because not one of the judicial officers responsible for these deaths has ever been successfully held to account by the respective criminal justice systems (Perera and Pugliese, 2012, Smith, 2015, Smith, 2016, Tedmanson, 2008).  This leaves those living in a ‘state of exception’ feeling “overwhelmed by the inescapable terror that defines being black and living in [settler-colonial ‘States’] today” (p. 384); this is the terror of necropower (Mbembe, 2003).

Necropower is a formation of power that subjugates “life to the power of death” (Mbembe, 2003, p. 39), including social and political death.  The intractable truth is that the necropower wielded by the police towards minority groups in certain countries is violence sanctioned by, and delivered on behalf of, the sovereignty (Linnemann, 2017).  Racialised necropower should not be considered as random incidents of nationalism, but rather as part of the hierarchical settler-colonial foundations upon which settler-colonial countries now operate (Perera and Pugliese, 2012, Gabbidon, 2010).

In the U.S., between 2009 and 2012 across seventeen states victims of lethal force by law enforcement were predominantly white (52%) but disproportionally black (32%) with a higher fatality rate (2.8 times) for black than for white (DeGue et al., 2016).  Although 83% of victims were reported to be armed, 14.8% of black victims were unarmed compared with 9.4% of whites and 5.8% Hispanic victims (DeGue et al., 2016).  In Australia, for the period 2008 – 2017, all states, except the Northern Territory, experienced more non-Indigenous deaths in custody than Indigenous. However, when police interactions and deaths in custody are viewed alongside Indigenous and non-Indigenous population sizes a different pattern emerges with all states showing a higher interaction rate with Indigenous alleged offenders in comparison to the size of the Indigenous population within those states[1].

The omnipresence of necropower emerges from these figures, one that continues to exist in necropolitical governance structures, and their technologies of control.

CJS as a Technology of Control

The police force, as a technology of control, was originally established in the 19^th century by a bourgeois order who demanded “the control, surveillance, and repression of the dangerous classes” (Sclofsky, 2016).  The dangerous classes, a term coined by Honorè Antoine Frègier in 1840 who described them as “thieves, bandits and murderers, of drinkers, beggars, prostitutes, sexual offenders, vagrants and other ‘depraved’ kinds of people, whose only common feature was to be an ‘enemy of society’” (Scheu, 2011).  Thus, the stigmatisation of Indigenous and minority groups has existed since the colonial era, when it was both race and class based and was included in the classification of the ‘dangerous classes’ (Sclofsky, 2016).

In contemporary times, the term ‘dangerous classes’ has become associated with widespread precarity (Standing, 2011), but the concept operates in a colonial setting through the criminalisation of those ‘who belong to a certain social order’ and are still viewed as an ‘enemy of society’; most often Indigenous and minority groups (Hitchens, 2017, Lytle, 2017).  An enemy of society mentality, leads to a ‘state of siege’, which is a state that “allows a modality of killing that does not distinguish between the external and internal enemy” (Mbembe, 2003) and results in whole populations becoming a target (Mbembe, 2003).  The sheer number of deaths of black men and women in settler-colonial countries attests that the ‘dangerous classes’ mentality is still alive and well, specifically with black minority groups (Hitchens, 2017, Sclofsky, 2016, Lytle, 2017).  After all, “[t]he police do not simply ‘enforce the law’ but stand rather as the ‘embodied force’ of the law” (Linnemann, 2017), the seat of necropower.

In necropolitics, the State’s power over death is placed at the political frontier.  To be part of a minority group in countries such as Australia and the U.S. is often viewed as a death sentence (Hitchens, 2017).  For example, in the U.S., “black [people] are 2.5 times more likely as white [people] to be shot and killed by police…and unarmed black [people] are seven times more likely to be shot than unarmed white [people]” (Hitchens, 2017).  It follows then that through the threat of violence, the police produce a distinct social order (Linnemann, 2017), therefore, police necropower gives subjective violence the green light.

Subjective violence is physical violence between two agents with “a clearly identifiable agent” (Žižek, 2009) who can be held accountable.  This physical violence can be bodily force (e.g., stabbing, kicking, punching) or an extension of the body (e.g., shooting) where this physical force strikes the victim.  The end result of subjective violence is also physical, including death, serious bodily injuries, as well the psychological damage to the victim.  Subjective violence in many Indigenous and minority communities has become normalised and, in their minds, reaffirms that “that they are unwanted, third-class citizens” (Pieterse et al., 2018).  This feeling of being on the outside looking in is further compounded by the media who continue to feed the public’s disavowal of police violence by playing on the fears of the white patriarchy in both Australia and the U.S., as exemplified in the case of Rudy Eugene.

Looking the other way: Disavowal of police violence

While members of the public generally have a “liberal tolerance towards Others” (Žižek, 2009), they only do so if the Other does not intrude into their social domain; thus, they do not see the flaw in holding a “respect for the vulnerable Other” (Žižek, 2009) on one hand, while disavowing the consequences of their knowledge of heinous crimes against ‘the Other’.  To acknowledge police violence would be to acknowledge the reality of the “stratified social structures and inequalities” (Rana and Rosas, 2006) in their society.  Therefore, the widespread ‘fetishistic disavowal’ in the aftermath of a police shooting, or a death in custody reinforces social orders that allow police violence to continue unabated (Linnemann et al., 2014).  This type of disavowal involves the “public gloss[ing] over the causes and consequences of state violence so it may continue acting ‘as if it didn’t know’” (Linnemann et al., 2014).

Media in the U.S. and Australia feed this fetishistic disavowal due to their inflammatory, derogatory and fear evoking representations of Indigenous and minority groups, which encourages these state-sanctioned police killings to be accepted by society at large.  Due to its propensity to use negative racial stereotyping and to over-inflate race issues, the media in Australia was found by the Human Rights and Equal Opportunity Commission’s inquiry into racist violence (1991) to contribute to “creating a social climate which is tolerant of racist violence”.   The media in the U.S. and Australia normalise a social order in which they believe ‘whites’ to be at the top (Domke, 2001).

U.S. Republican Senator, Chris Christie, argued that “[Obama] does not support the police, he doesn’t back up the police, he justifies Black Lives Matter (BLM)” (Lytle, 2017).  By doing so, Christie situates the BLM movement as “an antithesis to police or ‘lawfulness’” (Lytle, 2017), and tries to place police necropower in a context of a ‘one rotten egg spoils the whole basket’ scenario.  The sovereign state allows this disavowal to continue, otherwise the connection of state violence to structural inequalities could “necessarily foment rejection of existing socio-economic arrangements” (Linnemann et al., 2014) espoused by the media.

Social movements such as #blacklivesmatter and #handsupdon’tshoot are drawing worldwide attention to the disavowal of police violence, however, media coverage of the death of Rudy Eugene did not raise any criticism regarding police violence or police power in general.  This could be attributed to the media directing the attention from the police by “reporting on the pleas from the citizenry to end cannibalism and to fight against Voodoo curses that were thought to have motivated Eugene’s behaviour” (Gutsche, 2013), effectively stereotyping Eugene’s Haitian heritage.  The failure of both the police and the media to provide the public with a reasonable cause for Eugene’s violence, “effectively depoliticize[d] and normalize[d] his death at the hands of the police” (Linnemann et al., 2014), fuelling the public fetishistic disavowal.

Conclusion

Individuals of Indigenous and minority groups can be said to be born into a life of precarity with the status of homo sacer hanging over their heads. The precariousness comes from knowing that any minor interaction with law enforcement, such as Mulrunji Doomadgee’s, can end in their death, at which point they become homo sacer.  The precariousness does not end with their deaths but continues with the lack of justice for these unnecessary, brutal deaths through the state of exception where there is no accountability for taking those lives because they are already viewed as dead. The precariousness is then further drawn out by the media’s and public’s refusal to acknowledge these deaths for what they are, which are acts of police violence. By disavowing police violence the public and media further embolden the state use necropolitical governance strategies, thereby allowing the police, as a technology of control, to subjugate the lives of individuals of Indigenous and minority groups to the power of death.