Journal of Social Justice, Vol.

6, 2016 ( 2016)
ISSN: 2164-7100

Penal Abolition as the End of Criminal Behavior1

Michael J. Coyle2

In this paper, I argue for penal abolition on the grounds that the logic, practices
and justification for the criminal justice system derive from ideas of
criminal deviance and people as criminals, which are revealed to be
fictional. I present evidence for the ubiquity of violent and non-violent
crimes in everyday life and the participation of most people in transgression,
which together nullify the notion that such behavior is abnormal and void the
concepts of criminal deviance, crime and criminal. In the face of a world
suffused by transgressive acts and transgressive actors, the penal system daily
functions to label certain transgressions as criminal behavior and to sort
certain transgressors into the category of criminals. In this sense, the purpose
of the penal system is exposed as preoccupied with the management of only
certain transgression. Consequently, penal abolition can be seen for what it is:
a call to end the criminal behavior discourse which hides the ubiquity of
transgression. The implications for penal thinking are severe, as the penal
system is based on the felt necessity to respond to deviant, criminalized
behavior and deviant criminals. When it is revealed that transgression is not
deviant but is in fact the norm, one must conclude (1) that the penal system is
not (and never will be) able to effectively address the transgression of social
norms, (2) that it should therefore be abolished, and (3) that we re-
conceptualize and re-design our social response to the transgression of norms
as the management of difference (and not deviance). [Article copies available for
a fee from The Transformative Studies Institute. E-mail address:
journal@transformativestudies.org Website: http://www.transformativestudies.org
2016 by The Transformative Studies Institute. All rights reserved.]

KEYWORDS: Penal Abolition, Ubiquity of Crime, Criminal, Deviance, Social

Norms, Transgression, Language, Criminal Justice System, Social Construction
of Crime.

1 This paper draws on my extensive work on the central role of language in criminal
justice. For example, see Coyle 2010a, 2010b, 2013, 2014, and 2015.
2 Michael J. Coyle, Ph.D., is Associate Professor in the Department of Political Science

and Criminal Justice at California State University, Chico. In his research, teaching, and
activism he examines language, public policy, and everyday life to expose the social
construction of discarded persons, that is, those identified for their difference from
promoted norms and who are characterized as unlike us, dangerous, or punishment-
worthy: the so-called deviant, imprisoned and excluded. Address correspondence to:
Michael J. Coyle, e-mail: mjcoyle@csuchico.edu.

2016 Transformative Studies Institute

 Michael J. Coyle

Words have lives of their own. However much

sociologists insist that the term deviant does not diminish
the worth of the person or group so-categorized, the
implication of inferiority adheres to the word. majorities
usually categorize persons or groups as deviant in order
to set them apart as inferior beings and to justify their
social control, oppression, persecution, or even complete
destruction.
Thomas Szasz. The Manufacture of Madness, xxv-xxvi

INTRODUCTION

I begin this essay with two arguments designed to disrupt normative

perceptions of what we call criminal justice. The first is that, because
language plays a central role in shaping the thought and practices of
criminal justice, studying criminal justice language highlights the
mythological character of crime, criminals, and criminal behavior.
The second is that what we call crimes are not, as widely supposed,
deviant acts, but are actually common and ordinary behaviors for human
beings. Next, I trace the implication of these two arguments: that
categories such as crimes, criminals and criminal behavior are by
necessity fictions. Finally, having distinguished the constructed fiction of
crime, I argue that the penal system itself propagates a multitude of
harms even as it constantly creates crime categories (law) and chases
crime (police, courts, prisons, etc.); therefore, it is necessary to abolish
penal thinking and the practices of the penal system and replace them with
intellectual constructs, institutions and practices that respond to the
conflicts and harms of interpersonal relationships without further
increasing harms.

LANGUAGE AND CRIMINAL JUSTICE

Language and Everyday Life

As we go about our everyday life, words are more often thought of as

tools that we use to describe things (language as a tool for describing
human action) than they are thought of as habits that create things
(language as generating human action). For example, the phrase his
crime is serious may be understood as a neutral, passive characterization
(serious) of a fact (crime). However, careful consideration may lead us

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to recognize that invoking crime is an active assessment with particular

entailments. Finally, some reflection may bring the insight that we
abdicate responsibility for these consequences when we habitually
characterize certain actions as crimes.
In our daily life, we use language to communicate a diversity of
responses to countless circumstances. Most of our waking moments, most
of our work and our play, and almost all our actions, happen in and through
language. Indeed, language is central to almost everything we do.
Throughout these activities we think of language as a tool whose workers
(words) are often readily available (as when words come effortlessly to
mind), while at other times they are found only with effort as we sift
through alternatives for the desirable word to convey our desired meaning.
In all these ways we experience and think of language as a tool for
describing human action.
Given this central and lifelong experience of language as a tool for
communication, it is understandable that daily we largely forget that
language is deeply complex and far more than a user-directed tool. In
important ways, the words we use are seldom so carefully chosen by us to
build descriptions and arguments, as they are a series of habits that
determine the very architecture of our descriptions and arguments (Coyle
2013). For example, we may consider the language that has accompanied
genocide: uncivilized barbarians (Native Americans) and vermin,
parasites and plague (European Jews). A simple explanation would be
that these descriptions reflected what was taught about such peoples, but
built into the habitual use of these words is the argument that we need to
defend ourselves by ridding ourselves of such people (Bosmajian 1983 and
1992). Although nowhere in these words are protection and extermination
directly invoked, everywhere they are implied. Similarly, in the language
of sexism, of war, and of punishment, there exist not only descriptions of
persons, but also the creation of persons in such a way as to invite
unambiguous interpretations and prompt (sometimes require) specific
actions and responses. Certainly, verbal characterizations make otherwise
unsavory suggestions palatable, such as unequal treatment (sexism),
killing (war), and torture (punishment).
The important point here is that the language we use to name and call
our world into existence is made up not only of those words we select each
time to describe it, but also of entire groupings of words (discourses).
These discourses are habitually performed and by their use not only
describe the world, but also generate it. As Sapir phrased it, The fact of
the matter is that the real world is to a large extent unconsciously built
up on the language habits of the group We see and hear and otherwise

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 Michael J. Coyle

experience very largely as we do because the language habits of our

community predispose certain choices of interpretation (1956: 75).
Language, then, fabricates; not because words are false or because they
lie, but because their habitual everyday use is a mostly unregistered act of
creation. The issue, then, is that words not only make the fabric of our
lives, but also its design. To experience and think of language in such a
way is to think of language as generating human action.

Language and Justice

The implications of language as a creative force are varied and deep. In

social and criminal justice situations, the consequences of language
choices are far-reaching, and have been skillfully demonstrated by both
lay persons and academics. For example, George Orwell demonstrates the
power of language as a tool for domination when he shows how moral
entrepreneurs frequently use (and abuse) clever language choice,
metaphor, and meaningless words, in order to deceive publics around
justice issues (2000). Frank Burton and Pat Carlen advance a similar
argument about the language of Official Discourse in government
reports; they expose how the governments rhetorical positions leverage
disproportionate power to that of other discourses on the same topic, and
hence exert a far greater capacity to define situations in social life (1977).
Michel Foucault masterfully demonstrates how the study of dominant
language unmasks not only the capacity of some groups to control the
justice discourses and justice realities of their own groups, but also those
of the public at large, in other words, the perception of reality and thus
reality itself (1977). The work of these authors and that of others across
multiple fields of study demonstrate that the use of language in social life
can privilege certain discourses, while marginalizing alternative
discourses to subordinate positions or even to irrelevancy.
The implications of habitually performed words and discourses for the
study of justice are multiple. For one, we are alerted to the daily use of
words and of ways of talking (i.e. thinking), which tell us that the world is
one thing and not another, that the problems of justice and their solution
are one thing and not another, and that the logics of justice and injustice
are one thing and not another. It also means that daily justice language
choices, that once were seen as deliberate creations and choices, have now
become habits of language, which carry a reality similar to that of bricks
and stones. For example, what was once a deliberate and novel drawing of
certain social situations as the encounter of a criminal and victim in a
crime situation, is hardly ever experienced today as a discourse creation,

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as an option, or as only one of many possible ways of describing such

situations. Today, a long time after that first striking portrayal, the
linguistic distinctions criminal, victim, and crime are now intrinsic to
how publics widely think of, or describe, these social situations. In
particular, the myriad meanings associated with these terms help us to
understand why responses to some actors in such situations belong in the
domain of criminal justice and not social justice, and why criminals are
deemed worthy of punishment while victims merit sympathy. Yet there
are numerous other ways to experience and describe these social
situations, both real and imaginary: some can be found in the literature of
sociocultural anthropology, some in the literature of restorative justice,
some in the imaginings of classical utopian literature and some in the
imaginings of anarchist dystopian visions. Though these may not have a
broad public life, they do exist.
Over time, justice language choices possess enormous power to
support, create and recreate an entire justice discourse that seemingly
describes an inherent social reality. Imagine, for example, how a
discussion about the appropriate sentence, in prison years, to punish the
crime of murder (a logical question in the penal paradigm) would wholly
collapse if any of the normative words prison, punishment, crime or
murder suddenly lacked intellectual standing and/or operational practice.
Seen in this way, a set of justice language choices cumulatively builds
complex perceptions that construct an entire justice paradigm, such as the
penal paradigm. All justice paradigms, no matter how real they appear to
be, are never more than a discourse creation, and importantly, constitute
only one of many available or imaginable discourses and, consequently,
paradigms. Thus, in time, justice (language) paradigms, such as the
retributive/punitive one that is based on the distinctions offenders,
victims, crimes, and the like, become deeply accepted obvious
interpretations of social situations. In the right political climate, these
interpretations then become dominant justice (language) movements, such
as the tough on crime discourse became in the latter part of the 20th
century, or as the smart on crime discourse has become since then
(Altheide and Coyle 2006).

Criminalized Deviance Language

One of the most central precepts of criminal justice and the penal
paradigm, if not its very foundation, is the idea of deviance. As the word
itself suggests, deviant behavior refers to actions seen as abnormal,
unexpected, unusual, nonstandard, or out of the ordinary. While some of

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 Michael J. Coyle

what we call deviant behavior refers to actions that violate folk customs or
mores, in this essay I am interested in the deviant behavior whose actions
violate formal laws, and are thus labelled crimes and criminal behavior.
Sociologists especially pragmatists, symbolic interactionists, social
constructionists and labeling theorists have long been interested in
criminal deviance and have been responsible for most of its theoretical
development. Their vision is one that sees human beings as constructs of
everyday interactions. William Thomas provided a foundational insight
with his emphasis on the definition of the situation, a straightforward
distinction arguing that people enter social situations which are already
defined (1923). His argument is that human beings are born into
communities that have already defined the vast majority of situations
which any individual will encounter. For example, I was born into a
community where the act of taking things that belong to someone else was
already defined as a crime of theft that carries significant criminal
sanction. George Mead further argues that as individuals, not only are we
born into and encounter such ready-made situations, but we are indeed
constructed by them (i.e. that each of us is a product of all the interactions
we have had and are having with others) (1934).
Emile Durkheim contributes the distinction that naming (labeling) an
individuals behavior, e.g. calling an act a crime, is more accurately seen
as an expression of societys desire to control that behavior, than as an
individuals defiance of penal regulations (1951). In drawing this
distinction, Durkheim launches a way of thinking that has become known
as labeling theory. Howard Becker most clearly distinguishes this power
of naming things in his work Outsiders, a study of marijuana users, where
he demonstrates that marijuana smoking is not seen by users or others as
deviant, until social groups make it so by creating it as an infraction (a
crime) (1963).
The implication of this research is that crime is more significant as an
indicator that someone is naming anothers behavior than it is as a
characterization of a persons behavior. Consequently, a criminal person
indicates nothing more than a person to whom the crime behavior has
been attached. To abandon this central insight is to enter the mythology of
crime, criminals, and criminal behavior out of which criminal
justice and the penal paradigm function (i.e. that criminal acts, persons
and behavior are independent of those assigning such labels).
From the interactionist/constructionist/labeling perspective then, the
study of criminalized deviance language promises insight into three
things: (1) who is labeling criminality, (2) who is being labeled a
criminal, and (3) what behavior is being labeled criminal. Importantly,

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Journal of Social Justice

scholars can use this type of analysis to develop insights that elucidate the
social construction of justice performances: the routines of the criminal
justice system, the development of criminal justice discourse and
policy, and consequently, criminal justice outcomes.
The importance and usefulness of analyzing criminalized deviance
language is easily showcased with examples of studies that examine
justice performances. In Paul Masons, Captured by the Media: Prison
Discourse in Popular Culture, various authors highlight how media reflect
and create a particular discourse about prisons and punishment (2006). The
authors demonstrate that collectively, media performances construct
punitive public attitudes that, in turn, encourage punitive constructions of
offenders, support punitive public policy, and ultimately lead to the
greater use of increasingly punitive prisons. In The Cultural Prison:
Discourse, Prisoners, and Punishment, John Sloop traces media discourse
from a rhetorical perspective to pursue similar themes of cultural discourse
on prisons and punishment (1996). In a fifty-year long study of US media
coverage, Sloop theorizes four, distinct, media periods of imagining
people in prison as either redeemable or criminal: first, in the 1950s, the
person in prison is characterized as a good white male facing challenging
social circumstances, next, in the 1960s as an angry black male, then in
the 1970s as a black male who is unmasked as trapped between his violent
nature and an unfairly racially charged society, and finally, in the 1980s
as an incorrigible bad person whose behavior justifies a tough on crime
attitude. These authors show that the study of criminalized deviance
language gives insight into who is labeling criminal behavior (moral
entrepreneurs, the media), and who is being labeled a criminal (a group
of persons named offenders, a white male lacking opportunity, and a
black male who is alternatively seen as problematic for his color, his anger,
and his violent nature).
The importance and usefulness of analyzing criminalized deviance
language is also showcased by examining how language choices and
distinctions create and sustain entire social discourses about race and
crime that, in turn, seem to describe an innate social reality. While race
groupings reflect phenotypic and genotypic traits, beyond this they are
merely a social construction (Lie 2004; Palmie 2007). As the American
Anthropological Association bluntly states, differentiating species into
biologically defined races has proven meaningless and unscientific
(AAA 2009). Research demonstrates that the interpretation race is not a
matter of biology, as more genetic variability exists within such grouping
than between them (Long and Kittles 2003). Moreover, conceptions of
race and races are not timeless fixtures but social products that are

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 Michael J. Coyle

invented, maintained, and eliminated as they serve an age and a society

(Delgado and Stefancic 2001). As such, race belongs to the study of
history and sociology that interprets all human inventions (language) used
to negotiate the imaginings called perceptions and experiences of
difference (Smedley 1999). Put differently, the creation race, reflects a
linguistic device to express intellectual and popular beliefs about human
groups and to justify ideologies with definitive historic and economic
purposes (colonization, slavery, etc.).
The implications of race are far reaching. In the human and social
sciences, scholars face a call to use sharp and critical eyes to identify not
just the constructed nature of race, but also the hegemonic role that the
distinction itself supports (Zuberi and Bonilla-Silva 2008). This is a call
to observe and decry racism, but importantly it is also a call to recognize
that modern social environments are hyper-racialized and necessitate that
scholars examine the color of social theory, the color of analytic frames,
and the color of practice. Some scholars have found color in the
unconscious racism of law (Lawrence 1987), and some have found
evidence of color in the petit apartheid practices of jury nullification and
racial profiling (Milovanovic and Russell 2001). Yet others, encouraged
by the postmodern turn, point to the usefulness of examining narratives
and storytelling, analyzing the construction of subjectivity and viewpoints,
as well as re-imagining methodology through which knowledge is
validated all to locate the oppression inherent in racist discursive
activities (Arrigo, Milovanovic, and Schehr 2005).
In the study of crime, race is more commonly encountered as a
research variable that endless generations of bean-counting criminologists
take for granted and accept as unproblematic. Here race is encountered
as a construction whose very study perpetuates and encourages racist
criminal justice thinking and practices it purports to deconstruct. Karen
Glovers Racial Profiling: Research, Racism and Resistance, calls for a
critical race criminology that specifically addresses traditional and
contemporary examinations of race in criminology and contests the ways
the discipline produces and represents race by focusing on and indeed
validating experiential knowledge via the social narrative of marginalized
communities (2009:2).
Glovers call denotes the point of entry for the study of language as it
contributes to a critical race criminology and the study of racism which
resides in the discourse and practices of the criminal justice system. My
point here is that to study the specific language of criminal justice
discourse is to visit the site where race and racism infuses criminal
justice discourse. Indeed, it is in everyday language (reality) that people

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Journal of Social Justice

of color are criminalized; it is in everyday word choice, word use, and

word control that the racist criminal justice system discourses and
practices are built, maintained, and reproduced (even while the problem of
race and racism in matters of crime and criminal justice is being
fully acknowledged).
Racism reflects the ways in which social relations are constructed to
advantage and disadvantage human groups that are distinguished as
belonging to disparate racial categories (Bonilla-Silva 2003). More
important to my project here, racism reflects the ways in which social
relations are continuously maintained, recursively reconstructed, and
creatively innovated to advantage and disadvantage human groups that are
distinguished as belonging to disparate racial categories. To accomplish
the latter, it becomes important to expose the mechanisms that sustain
racist discourse and racist practices even amidst a discourse and
practices that claim to recognize and contest such racism. Thus, the
study of justice-related language provides for the study of mechanisms that
sustain racist discourses and practices.
Further support for the value and importance of studying criminalized
deviance language is a series of works examining language in the legal
process. In Is it Sex or Assault? Erotic Versus Violent Language in
Sexual Assault Trial Judgments, Janet Bavelas and Linda Coates examine
the language used to describe sexual offenses in British Columbia trial
judgments (2001). Their findings reveal that descriptions in judgments are
more frequently likely to use sexual (erotic or affectionate) language than
they are likely to use language indicating violence or force. The authors
argue that sexualized descriptions hide both the violence of sexual assault
and the experience of the (usually female) victims. Language is here being
used to hide an offense. In Baby or Fetus?: Language and the
Construction of Reality in a Manslaughter Trial, Brenda Danet
demonstrates how words do not so much describe, as they construct, facts
and intentions in the trial of a doctor who performs a late term abortion
(1980). She shows how opposing lawyers create opposing realities through
their word choice. Depending on the intent to prosecute or defend, the
lawyers either used baby, child, person, and the deceased (in an
attempt to create a crime), or employed fetus, embryo, and products
of conception (to show that no crime occurred). Finally, in Just Words:
Law, Language, and Power, John Conley and William OBarr examine
how power and ideology pervade the legal process (2005). They
demonstrate that the work of law is done through careful and intelligent
manipulation of language to the distinct advantage of some and to the loss
of others. In one example, the authors detail the use of language in court

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 Michael J. Coyle

by a lawyer constructing a rape victim as being interested in her

attacker (in other words, making an attempt to argue no crime was
committed). In another example, they show how language work resulted
in the advantageous positioning for one party in divorce mediation. These
studies of language in the legal process demonstrate the work required to
employ a label (such as crime), and the work involved to avoid such a
label. In this work, crime, criminal and criminal behavior language is
understood to not refer to the quality of persons or their behavior, but to
the actions of those naming the person or their behavior.
A final example is taken from my own work a series of language
studies driven by a variety of goals (2002, 2010a, and 2010b). Each study
is an investigation into a word or a phrase commonly used in criminal
justice discourse (evil as it relates to crime, victim, etc.). I argue that
such everyday language takes place within a body of interpretations,
metaphors, rhetorical frames, and ultimately ideology, that are rarely
acknowledged and are, instead, mostly accepted as self-evident. These
language studies get to the language habits that we have forgotten are
generating (and not just describing) our criminal justice system. In this
research, I discover that the language of criminal justice is designed to
generate encounters with people of color, as well as those of lower socio-
economic status and of certain gender (Coyle 2013). In another project, a
colleague and I demonstrate that the currently occurring discursive shift
from tough on crime to smart on crime does not reflect any change in
criminal justice ideology (despite the wish that the shift somehow
recognizes the racist consequence of the tough on crime movement)
(Altheide and Coyle 2006). Instead, the shift to smart on crime denotes
a rhetorical device that is designed to mask the political and economic
infeasibility of sustaining funding for what has become a gargantuan
criminal justice system (see Kappeler and Kraska 1999 for a similar
analysis of the shift from law enforcement and crime control, to
community policing).
This literature demonstrates the interactionist-constructionist-labelling
understanding that crime does not refer to a quality of a persons
behavior, but to the actions of those naming the persons behavior; that a
criminal is nothing other than the person to whom that behavior has been
attached; and that criminal behavior is only the behavior that has been
labeled as such. The above examples of studies that examine the everyday
language of criminal justice performances demonstrate the power of
studying language to elucidate the social construction of these
performances in a way that does not participate in a mythological creation
of crime, criminals and criminal behavior as separate from those

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Journal of Social Justice

assigning it. Finally, the research examined in this section also

demonstrates the power and importance of asking the key question of how
our crime-making and criminal justice-making work corresponds with
our supposedly commonly accepted values, such as equal justice for all3,
(i.e. who wins with such language and who loses). Importantly, this type
of analysis elucidates the social construction of justice performances: the
routines of the criminal justice system, the development of criminal
justice discourse and policy, and consequently, criminal justice
outcomes.

THE UBIQUITY OF TRANSGRESSION

In the above discussion of deviance theory, I reviewed the broad history

of how sociologists become interested in deviance as the study of aberrant
behavior. For them, the very notion of deviance entails the study of
behavior that deviates from the norm: abnormal, unexpected, unusual,
nonstandard, or out of the ordinary behavior. Deviance sociologists are
interested in people whose behavior somehow places them on the fringe,
the border, the edge; they are interested in the acts that place people on the
perimeter or outskirts of normalcy; they are interested in people defined
as somewhere on the sidelines or the periphery of typically behaving
human beings. As a consequence, deviance sociologists are often
examining marginalized behavior (uncommon sexual expressions),
marginalized situations (mental illness), and, of course, marginalized
actors (the criminal).
With its emphasis on the marginal, the concept of deviance has had a
very specific impact on the study of criminal behavior. As demonstrated
in the previous section, this emphasis can fruitfully be employed to
deconstruct the mythology of crime, the criminal person and criminal
behavior. As seen above, with its emphasis on the marginal, the concept
of deviance also allows us to analyze some disturbing trends in modern
criminal justice performances, e.g. how the work of law is done through
careful and intelligent manipulation of language to the distinct advantage
of a privileged few, how criminal justice practices in general are
designed to encounter people of color (especially black males), and how
in courtrooms language is used to transform the violence and force of

3 By equal justice for all I mean the popular American (constitutionally protected)
understanding of equality of all citizens under the various systems of social control (law,
policing, imprisonment, etc.). For example, The US Department of Justice webpage
includes a description that it is an office charged to ensure fair and impartial
administration of justice for all Americans (The United 2012).

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 Michael J. Coyle

sexual assault on women into an erotic and affectionate encounter.

However, the emphasis on the marginal has also come at a cost because
the full study of criminal behavior shows that such behavior is more a
deeply shared human expression than it is deviant one.
My argument here is that those acts which we call crimes are not
deviant as we imagine them to be, but are actually widely common
behaviors. To demonstrate this, I will dissect the logic and arguments of
the ultimate, liberal, criminal justice worker who, in a career that
spanned more than three decades, recognized the constructed and
mythological character of criminal justice probably more than anyone
else in the US.4 Nonetheless, as I will show, Michael Hennessey, the
Sheriff of San Francisco County until his retirement in 2012, operates out
of a mythology that views criminal behavior as deviant.
In an interview with Michael Kransky in the year of his retirement,
Hennessey reveals how the everyday operation of criminal justice occurs
in an environment that is founded on the conceptions of responding to and
managing criminal deviance and criminal deviants (Kransky 2011).
The interview begins with a discussion of the countys jail population.
Asked about what kind of people go to jail, Hennessey is quick to agree
that it is the rabble, or drunks and homeless, petty criminals, and
petty thieves that Kransky suggests, but he also adds that 40% of people
in jails are there for drugs, 25% are in for a violent crime, and a
smaller percentage for public nuisance. While he admits that to some
degree county jails keep the undesirables out of the view of the public
eye, he stresses that jails are also a place where people who are charged
with very serious violent crimes await disposition of their case as society
fears violent criminals more, and rightly so.
When Hennessey is asked to comment on the fact that African
Americans constitute only 5% of the general population in the county but
constitute more than ten times that percentage (55%) of the jail population
for the county, he claims that the disparity is one of the most troubling
issues that I have had to deal with and had to look at during my entire 32
years as sheriff and labels it just scandalous and a real tragedy. His
rationalization for why, in a county that is only 5% African American,
more than half the jail population is African American is that it comes
down to a lot of social factors such as unemployment and unemployment
leading to people going to the underground economy to make a living
selling drugs and many African American families having had
generations of people incarcerated and therefore it sort of seems

4 This discussion was first developed in Coyle 2013.

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Journal of Social Justice

inevitable. He concludes, It is something that Ive brought to the publics

attention many times but [it] does not seem to be abating.
Hennesseys progressive politics shine through when he discusses the
criminals in his jails as people (that) can change their worldview,
rehabilitate themselves and become productive members of society.
As Kransky congratulates him for his work to transform these persons,
Hennessey says, I do think San Francisco is a compassionate city, and
will continue to support programs that help ex-offenders get back on their
feet. He appeals for giving people in custody education, for getting
the riskier population counselors and therapists, and for helping these
men to first recreate their own life and what has caused them to commit
violence.
Hennesseys discourse about what kind of people go to jail, is so
familiar that most would not recognize its profound inaccuracies. He
characterizes the people who go to jail as criminals, drug addicts, and
those committing very serious violent crimes. However, research
repeatedly and consistently tells a very different story: the full population
of criminals, drug addicts, and those committing very serious violent
crimes, would include the majority of Americans. Most people
habitually violate the law committing a variety of both non-violent and
violent crimes in their lifespan (Gabor 1994). For example, property
crime is a very common occurrence. In 2013, it is estimated that 9.0% of
all households in the US experienced one or more property crime
victimizations (Truman and Langton 2014). In other words, in the last
year, almost 1 in 10 households experienced at least one property crime!
Similarly, a large proportion of people experiment with or regularly use
illegal drugs; more than one third of all Americans have tried an illicit drug
and 22.6 million (1 in 13 Americans) are currently illicit drug users
(Americas Drug 1997 and Results From 2011). Lastly, high numbers of
people commit very serious violent crimes. For example, one in four
college women in the US is sexually assaulted and one in six women in
the US will be sexually assaulted in their lifetime all these usually by
someone they personally know (Fisher et al. 2000, and Tjaden and
Thoennes 1998).
The banality and regularity of people treating each other with a violence
that is categorized by law as criminal is especially worth noting not
only because of how deeply this is collectively denied, but also because
the most popular defense of the entire penal project is responding to and
managing violent crime. In their study of violence prevalence, Patricia
Tjaden and Nancy Thoennes sampled both women and men in the US on
their experiences with violent victimization (2000). These researchers

13
 Michael J. Coyle

surveyed for physical assault, forcible rape and stalking experienced at any
time in the lifespan and by any type of perpetrator. What they found would
boggle the mind of anyone who thinks of violent crime as deviant. As
they write, Physical assault is widespread among adults in the United
States: 51.9% of surveyed women and 66.4% of surveyed men said they
were physically assaulted as a child by an adult caretaker and/or as an adult
by any type of attacker (p. iv). Similarly, their findings report that more
than 1 in 10 adults report being stalked at some point in their life; in
conjunction with the above-reported, extraordinary rates of forcible rape,
the amounts of violent crime committed by those mostly intimately
known to the victims becomes staggering to conceive of especially if one
continues to insist on thinking of violent crime as somehow deviant. As
the report summarizes, The data show that violence is more widespread
and injurious to womens and mens health than previously thoughtan
important finding for legislators, policymakers, intervention planners, and
researchers as well as the public health and criminal justice communities
(p. iii). Indeed, for penal criminal justice communities, this prevalence
will mean thinking of their work as placing more people inside of prison
than out.
Another problem with Hennesseys classic and typical interpretation of
what kind of people go to jail (with the accompanying constructions of
crime, criminals and criminal justice), is that it does not recognize
that the majority of harms (economic damage, violent acts, and death),
derive from and take place in widely ignored contexts: white collar,
environmental, corporate and state crimes. As a result, the many
individuals involved in these crimes are rarely counted, massively under-
policed, and even less frequently arrested, prosecuted, or incarcerated.
Although the cost of a single corporate crime (e.g. Enron) is likely to
be exponentially greater than the sum of a years worth of robberies,
burglaries, larcenies, and motor vehicle thefts, most harms committed by
and in corporations will go as unnoticed and unstudied as they are
unprosecuted (in its first and last study of the kind, the Justice Department
found that approximately two-thirds of large corporations violated the law,
see Clinard and Yeager 1987). Finally, while the FBI reports that the
annual U.S. murder rate is about 16,000 people, more than 70,000 die in
the same time period from product-related accidents (Friedrichs 1996);
these numbers do not include the thousands of annual deaths connected to
corporate pollution, such as the more than 11,000 who die annually from
industrial pollution alone (Steingraber 1997).
The annual cost of white collar crime alone is estimated to be more
than 80 times that of the total amount stolen in all thefts (Reiman 2010).

14
Journal of Social Justice

Likewise, the annual cost of antitrust and trade violations is estimated to

be more than 60 times that of the total amounts in all thefts (Cullen et al.
1987). Global fraud studies alone estimate that the typical business loses
5% of its revenues to fraud each year (Report 2012). These acts of fraud
are committed by individuals working in diverse posts (such as
accounting, operations, sales, management, purchasing or customer
service), most of whom are first-time offenders with clean employment
histories (87% have never been charged or convicted of a fraud-related
offense) (Report 2012). The cumulative cost of all these inconceivably-
many, individual crimes is estimated at 3.5 trillion annually, or 5% of the
annual Global World Product (Report 2012).
What is important to grasp about all this harm is its pervasiveness and
that it represents the actions of a majority of us and not the actions of a
special category of criminal persons that the penal system is or could
address.
The words and images that the hyper-liberal for the US Hennessey
uses to discuss the people in his jails are all clichs. The discourse of the
far more typical, conservative criminal justice worker is even more
rooted in this mythology of the criminal. Hennesseys constructions
and for that matter almost all constructions of criminal justice not only
fail to recognize the mythology of the criminal deviant, but in fact
perpetuate it. Hennessey does this most clearly when he speaks about the
need for religion in jail to get people the values they need to avoid future
criminal activity, for getting the riskier population counselors and
therapists, for helping these men to recreate their own life and what has
caused them to commit violence, or the need for rehabilitation, giving
people in custody education, and programs where people can change,
where people can change their worldview, rehabilitate themselves and
become productive members of society. Yet the meaninglessness of his
construction in the face of the ubiquity of crimes, and the targeting of
only some for participation in the criminal justice system appear to
escape him.
As it turns out, the only accurate way to speak about what kind of
people go to jail is to ask about what kind of people are chosen for jail?
This conclusion comfortably fits the interactionist-constructionist-labeling
understanding 1) that deviance does not indicate the quality of a persons
behavior, so much as it indicates the actions of those naming the persons
behavior, 2) that who we call the deviant is nothing other than the person
to whom that behavior has been attached, and 3) that deviant behavior is
only the behavior that has been labeled as such. Indeed, as reported in the
appropriately titled study, Who Gets Caught Doing Crime? (a 1985

15
 Michael J. Coyle

Department of Justice study that has never been repeated or updated), who
gets caught are people who are not high rate, serious offenders, but
rather who are somewhat inept, unprofessional criminals who may be
arrested nearly every time they commit a crime (Chaiken and Chaiken
1985, p. iv). Interestingly, the report goes on to say that The offenders
who are arrested frequently despite their relatively low rate of committing
crimes actually tend to be relatively inexperienced offenders who are
relatively straight, hardworking men who are not involved with drugs or
heavy drinking, and were disproportionately black persons of which
the vast majority had not completed high school (pp. v and vi).5
As it turns out, the majority of what we call crimes are not in fact
deviant acts, but in their majority (despite their harmfulness), boringly
banal acts. The ubiquity of violent as well as nonviolent harms in everyday
life, and the participation of so many in their commission nullify the notion
that such behavior is abnormal or deviant in any way and render the very
concepts of crime and criminal as nonsensical.

THE END OF CRIMINAL BEHAVIOR

As I stated at the outset, my purpose in this essay is to make two

proposals that disrupt normative perceptions of what we call criminal
justice in order to argue against continuing the penal thinking and penal
practices that dominate modern day responses to harms. I began by
examining the theory and language of criminal deviance to make the
argument that criminal justice is less engaged in a process that is about
identifying harms and harm-making, than it is in creating a mythology of
crime, criminals and criminal behavior. I then demonstrated that what
we call crimes are not in fact deviant acts, but behaviors that are so
frequent, common and ordinary, that the very concepts of crime and
criminal behavior as abnormal or deviant behavior lose all meaning.
The implications of these two proposals for penal thinking are severe,
as the penal system is based on the necessity to respond to deviant
criminal behavior, and deviant criminals. At least two implications
instantly emerge. The first is that if transgression is not deviant, but the
norm, then we need to re-conceptualize and re-design our response to
norm-transgression as the management of difference (and not deviance),
and begin the all-important work of figuring out what difference we do not

5 The language of this report is a fascinating case study of the confusion that typically
reigns in criminal justice discourse. The report is immersed in the typical crime and
criminal language, while simultaneously pointing out the meaninglessness and
incongruity of using such language and constructions.

16
Journal of Social Justice

want to live with, and how we are going to live with the difference we are
willing to accept.6 The second, which is the concern of this section, is that
since the penal system is not designed to address the numerically
prodigious transgressions of social norms, penal abolition needs to be seen
for what it is: the end of the mythological criminal behavior discourse
which hides the ubiquity of transgression and maintains the mythology of
crimes and criminals.
In the study of criminal behavior, the deviance concept has brought us
to the surprising conclusion that because transgression (crime) is a
ubiquitous social performance, we are all, at least in part, criminal
deviants which is to say that we are all normal.7 If we remain with
Durkheims (1951) distinction that naming (labeling) transgressive
behavior is a healthy expression of a communitys desire to control that
behavior, i.e. that we are socially organized to reject norm violations, then
we need to re-conceptualize the social response to transgression (crime)
with a distinction that recognizes we are all simultaneously maintainers
and transgressors of the social order. Similarly, we need to reconsider how
the routinely present transgressive act reconfigures the insider-outsider
distinction. It is not the case, as Becker suggests in Outsiders (1963) that
social groups create norms by making the rules whose infraction then
constitutes deviance, but that social groups respond to only some of the
deviance that actually all are involved in. In other words, while we are all,
sooner or later, outsiders to the social norms, only some are singled out to
be named as such.
On the face of it, the persistence of the criminal interpretation appears
odd. But as social constructionists argue, interpretations are maintained as
real because we continue to use them and assume that they are valid and
objectively true (Berger and Luckmann 1966). In William Thomas terms
(1923), the criminal interpretation has been remarkably consistent in
defining the situation of what kind of people go to jail despite its
completely fictitious character so successful in fact that moral
entrepreneurs anywhere on the political spectrum employ the same crime

6 This discussion is fully developed in Coyle 2015.
7 As Gottfredson and Hirschi first demonstrated (1986), the concept of career criminals
(also known as chronic offenders, habitual offenders and the like), that claims there
exists a group of offenders whose criminality spans the length of a career, cannot in
any way be demonstrated. In fact, the opposite case (that after 13 years of age offending
rates drop precipitously and continuously), is probably the most clearly demonstrated fact
in the disciplines of criminology and criminal justice. Yet, to this day, the most frequent
justification for incarceration schemes is the argument for imprisoning career criminals,
and addressing this fictional population remains a staple of criminal justice research,
federal funding of such research, and criminal justice policy.

17
 Michael J. Coyle

and criminal interpretations.

If the categories crimes, criminals and criminal behavior are by
necessity fiction, then any system built to respond to these, whether
intellectual or organizational, will be immensely problematic for the
obvious reasons. This is certainly true of the penal project. The work that
the penal project has attempted has been defined by the partiality of its
response to norm transgressions. In the face of a world infused with
transgressive actors and transgressive acts, the penal system (the so-called
criminal justice system) daily functions to label only some transgression
as criminal behavior and only some transgressors as criminals.
In this sense, the purpose of the penal system is exposed as preoccupied
with the management of only certain transgression. Far from referencing
an unusual or non-standard (criminal) other, the criminal justice system
only references attempts of dominance by certain persons over others.
Replayed and repeated countless times in everyday life, criminal
deviance language, like the language of genocide discussed in the
beginning of this essay, becomes a language whose habitual use does more
than simply describe: it constructs and continuously regenerates not only
the very architecture of our descriptions and our arguments about
criminal persons, but when followed, also creates unambiguous
interpretations of them and invites (and often requires) specific actions
toward them: social exile, physical punishment and torture via
incarceration, and the death of their future. But this is, of course, only the
fate of those harms that have not been accepted and that have been sent
through the criminal justice system. All the other harms are accepted, i.e.
they are responded to by reconstructing them into something else (as in
he is a good kid, not a criminal) or by ignoring them (as in the cost of
doing business).
We are forced to shift our sociological analysis of harms from those acts
distinguished within the mythology of the penal system as abnormal,
unexpected, unusual, nonstandard, and unordinary behavior, to an analysis
of transgressions as normal, expected, usual, standard and as ordinary as
the behavior of talking. Sociologically speaking, we now need a concept
to distinguish how certain criminalized behavior is treated differently
than other criminalized behavior. We also need a way to think about
whose harms (and their victims) are being socially tended to and whose
are not.

18
Journal of Social Justice

CONCLUSION

In light of these thoughts, penal abolition is seen as the end of an era

and a beginning of a new one. It is the end of an era because it means
accepting that we have seen the foundation of the penal house (crimes,
criminals and criminal behavior) crumble before our eyes. But we are
also at the dawn of another era because we now need new intellectual
constructs (such as difference) to conceptualize norms, their transgression,
and our response to their transgression. Along the way we will need to
build new cultural institutions and practices that respond to the ceaseless
waves of everyday conflicts and harms that seem innate to interpersonal
relationships and social living. Above all, we need to figure out how to do
all this response-work in a way that the penal project was never able to do:
without increasing harms to ourselves and others.

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