Abstract

Excerpted From: Ely Aaronson, Transnational Configurations of the Criminalization – Racialization Nexus and the Origins of International Cannabis Prohibitions, 72 American Journal of Comparative Law 743 (Winter 2024) (221 Footnotes) (Full Document)

Processes of criminalization and racialization constitute each other in multiple, consequential ways. As Dorothy Roberts points out, “race does more than predict a person's propensity for committing neutrally defined offenses ... race becomes part of society's determination of what conduct to define as criminal.” In this context, criminalization provides a pretext for the development of practices of policing, sentencing, and punishment that perform direct and indirect functions of racialized social control. However, from a social constructionist perspective, criminalization does more than simply reflect predetermined racial attitudes. It also shapes common narratives and widely held assumptions about the collective traits that presumably distinguish different racial groups from one another. In this vein, the frequent cultural conflation of race and criminality serves as a primary mechanism for “defining whiteness through hierarchical opposition to deviant racial others.”

In an era when the mass criminalization of racial minorities and migrant communities affects unprecedented numbers of people, questions about the historical trajectories shaping the mutually constitutive relationship between criminalization and racialization have attracted growing scholarly interest. However, for the most part, this burgeoning literature has focused on tracing the historical evolution of domestic configurations of the criminalization-racialization nexus. For example, recent works have shown how current patterns of racialized crime governance in the United States were shaped by institutional developments created by the slave patrols of the colonial era, the vagrancy laws of the post-Reconstruction period, and the racialized policing structures that emerged in Northern cities during the Great Migration. Yet while the predominance of national scales of analysis in this literature provides another illustration of the parochial inclinations often attributed to American legal scholarship, the reliance on methodologically nationalist perspectives for tracing the historical origins of racial disparities in criminal justice is by no means unique to the United States.

Discussions regarding the disparate impact of criminal laws on Indigenous populations in Australia often place such issues in the context of the nation's history as a settler colony and its longstanding reliance on repressive forms of social control to govern marginalized youth of Aboriginal and Torres Strait Islander origin. Scholarship examining contemporary patterns of racialized mass criminalization in South Africa often shows how continuities with legislative models that served to keep blacks out of white areas during the apartheid era shape present-day patterns of hyper-incarceration of Black South Africans. Similar examples abound in the literature exploring the historical intersections of race-making and crime-governance projects in other national legal systems.

One might assume that the predominance of national scales of analysis in scholarly discussions of the criminalization--racialization nexus arises naturally as a result of the adoption of a social constructivist conceptualization of race by scholars in this field. According to this line of argument, when we accept the premise that racial categories do not reflect inherent biological differences but rather represent the contingent products of discursive practices of racial labeling, then it is imperative to expose the cultural specificity of such categories by tracing the historical processes through which different societies have produced their own systems of racial classification. This approach resonates with the view that racial categories do not travel across time and space because they are bound to lose their original meaning throughout such journeys.

This Article is premised on an opposing approach, which argues that the adoption of a constructivist perspective does not necessarily justify the privileging of national scales of analysis over transnational ones. This approach is informed by a broader critique of the analytic bifurcation between domestic and transnational spheres of legal practice. The term “analytic bifurcation” is offered by the sociologist Julian Go to describe the social scientific praxis of conceptually dividing political relations into discrete units of analysis and reifying the putative separateness of such units despite their being deeply entangled with one another. According to Go, the propensity to reify conceptual units such as “international” and “national,” ““metropolitan” and “colonial,” “Global North” and “Global South,” among others, obscures important questions about their intertwined histories. The critique of analytic bifurcation provides a fruitful basis for illuminating how racialization processes interact with global flows of people, ideas, commodities, capital, and technologies. The connections between racialization processes across different geographic and temporal contexts can often be traced to historical trajectories set in motion by the global slave trade and the legacies of European settler colonialism.

As David Theo Goldberg observes, a research agenda oriented toward investigating the colonial origins of the entangled histories of racial formations in different domestic settings “enables one to see how the [colonizers] ... planted racisms' roots in place, designed their social conditions and cemented their structural arrangements.” This research agenda has its intellectual roots in the work of W.E.B. Du Bois. As part of his pioneering conceptualization of the “color line” as a global structure of domination, Du Bois interpreted the oppressive racial laws enforced during the Jim Crow period as a local expression of a transnational phenomenon shaped by the legacies of the forced migration of African slaves to other continents. This approach does not deny the distinctiveness of national institutionalizations of the global color line. However, it invites us to consider how racial formations in one jurisdiction are linked with those prevalent in other places and how such links were shaped by colonial encounters and postcolonial entanglements.

Comparative legal and political scholarship has identified a number of routes through which legal tools of racialization travel across jurisdictions. One strand of literature has documented the movement of racialized technologies of governance across colonial jurisdictions in both intra-imperial and inter-imperial settings. For example, in their recent analysis of the development of laws governing free people of color in colonial Louisiana, Virginia, and Cuba, Alejandro de le Fuente and Ariela Gross show how legislatures in these jurisdictions drew heavily on French, English, and Iberian precedents to design domestic legal frameworks of racial classification. Other scholars have deployed the concept of imperial boomerang effects (originally coined by the Martiniquais poet Aimé Césaire) to consider how the racial governance technologies that empires deployed in overseas colonies were brought back to the imperial metropolis and used against marginalized populations in the domestic sphere. In a classic discussion of this pattern of legal transfer, Hannah Arendt argues in The Origins of Totalitarianism that the origins of Nazi and fascist laws cannot be understood within exclusively national historical frames but must instead be contextualized as extensions of earlier practices of racialization and territorial expansion that were originally deployed by imperial European powers in colonial settings. Another body of comparative scholarship traces the movement of legislative and doctrinal models between countries with racially differentiated systems of citizenship. In a fascinating example of such research, James Whitman shows how race laws that emerged in the United States during the Jim Crow era served as inspirational models for the series of legislative acts and jurisprudential doctrines that shaped the anti-Jewish legislation of the Nazi regime during the 1930s.

Studies tracing the global circulation of legal tools of racial governance represent an important effort to carve out the distinctive contribution of comparative and transnational scholarship to the study of the contours of racialization processes within an interconnected world. Resonating with the transnational turn in comparative legal scholarship, these studies go beyond the traditional comparativist stance of juxtaposing the race policies of one country against those of another. Instead, these studies help create a research agenda that analyzes the interactions and counterinfluences of racialization practices across legal systems.

This Article aims to contribute to this effort by examining how a particular type of transnational legal process--one focusing on the circulation of criminal prohibitions across jurisdictions--serves as a vehicle for the propagation of racialized frames of cultural representation and legal practice around the globe. It also contributes to recent efforts to theorize the ways in which practices of criminal lawmaking in different countries interact with one another. This emerging scholarship has effectively problematized the methodologically nationalist tendency to study domestic criminalization processes as if they were completely contained within the borders of individual states. It has also offered new ways of theorizing the impact of foreign and international legal actors on national criminal lawmaking processes. The Article moves this discussion forward in two interrelated respects. First, it examines how conceptions of race shape (and are shaped by) the diffusion of criminal prohibitions across jurisdictions. Second, it provides a distinctive lens for assessing the colonial roots of contemporary forms of transnational criminalization processes, which are often interpreted as products of the relatively recent wave of transnational interconnectivity associated with the post-1970s phase of globalization.

In Part I, I develop a theoretical framework for analyzing how practices of criminalization and racialization constitute one another within imperial and transnational political spaces. This theoretical framework seeks to characterize three processes shaping the contours of the criminalization-- racialization nexus within political spaces that transcend state boundaries. First, it considers the role played by transnational epistemic networks in promoting the cross-jurisdictional diffusion of racialized discursive frames used to justify the enactment of criminal prohibitions. Second, it investigates the processes by which these discursive frames become embedded in international legal norms and practices. Third, it examines how such discursive frames are translated into local vernaculars and how their domestic institutionalization interacts with preexisting mechanisms of governing marginalized racialized populations.

In Part II, I apply this theoretical framework to analyze the case study of the international diffusion of cannabis prohibitions during the late nineteenth and early twentieth centuries. The recent proliferation of liberal cannabis reforms around the globe has sparked interest in the history of cannabis prohibitions. This rapidly expanding literature includes works focused on diverse national contexts, including Colombia, Jamaica, Mexico, Palestine/Israel, South Africa, the United Kingdom, and the United States. However, for the most part, the current literature in the field has remained confined within methodologically nationalist approaches and has not considered how domestic cannabis policymaking in one country interacts with related developments in other jurisdictions. This Article brings such interactions to the forefront of the discussion, examining how the spread of ideas linking cannabis consumption to racial backwardness facilitated the initial diffusion of laws criminalizing such behavior across colonial jurisdictions in the nineteenth century.

At the same time, the discussion shows how these early diffusion processes did not aim to establish unified models of criminalization across entire empires. In fact, at the dawn of the twentieth century, efforts to introduce cannabis prohibitions encountered resistance in various colonial jurisdictions, where policymakers favored nonpunitive strategies of governing cannabis markets, such as taxation, regulation, and state monopolization. I argue that the trend toward universalizing a prohibitionist approach in cannabis policy was a product of changes that took place in the production and diffusion of racialized frames of knowledge during the early twentieth century's heyday of scientific racism. The discussion demonstrates how these discursive shifts shaped cannabis policy debates in the League of Nations, both before and after the Second Opium Convention. It then examines their impact on cannabis criminalization debates in the United States, challenging the conventional portrayal of the United States as a pioneer of drug prohibitions and emphasizing how American policymakers borrowed policy frames from foreign jurisdictions.

The case study of the diffusion of cannabis prohibitions allows for the exploration of a range of questions crucial to understanding how criminalization and racialization processes mutually shape each other in the transnational sphere. What are the mechanisms driving the international diffusion of ideas about the connection between race and criminality? How do these diffusion processes shape debates about the need to define particular behaviors as crimes of international concern? What factors influence the reception of racialized discourses of criminalization in domestic legal cultures? By engaging with these questions, this Article aims to explore the role that racialization processes play in shaping the contours of transnational criminalization projects in our interconnected world.

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In his 1906 article “The Color Line Belts the World,” W.E.B. Du Bois observed that the tendency to analyze racial formation processes through a nation-centric perspective hinders the ability of racialized groups across the globe to acquire knowledge about their shared history. Du Bois stressed that a better understanding of the interconnectedness of local manifestations of the global color line is crucial for forging solidarities among racialized populations in different countries. In an era when questions regarding the mass criminalization of racial minorities have attracted growing political interest worldwide, owing to the transnational awareness-raising effects of the Black Lives Matter movement, the challenge of explaining how transnational processes of criminalization shape the evolving relationship between local and global racial hierarchies has become increasingly important.

This Article has contributed to this conversation by developing a theoretical framework for examining how the diffusion of criminal prohibitions serves as both a product of and a vehicle for broader circulations of racial stereotypes and social control practices. This framework considers how the participation of members of transnational epistemic communities in criminalization policy debates within different countries and international forums facilitates the transmission of interpretive frames, legislative models, and institutional practices across jurisdictions. It also investigates how racialized crime frames that circulate globally are translated into local vernaculars and become embedded within the cultural discourses and institutional structures constituting domestic systems of racial governance. This theoretical framework can facilitate historical inquiries about the international diffusion and domestic implementation of racialized crime frames in other areas of transnational criminal law, and the ways in which such processes reflect continuities with colonial projects of racial governance.

The theoretical framework introduced in this Article has provided a new interpretation of the internationalization of cannabis prohibitions. The decline of the League of Nations dismantled the institutional framework established during the interwar period to promote the global spread of prohibitionist cannabis policies. However, as in several other areas of global governance, the normative infrastructures established by the League laid the foundations of the international regimes that developed under the auspices of the United Nations. Throughout the post-World War II decades, the alleged links between cannabis, violence, and insanity became widely contested, and the racialized scientific theories underpinning these claims were largely discredited.

Nevertheless, the prohibitionist paradigm that emerged during the League of Nations era has continued to exert considerable influence on both domestic and international cannabis policies. In the Global North, this continuity was largely shaped by migration patterns from former colonies. The perception of cannabis as substance associated with the migrant “Other” imbued the drug with symbolic meanings that were strategically exploited by law-and-order crusaders. The increasingly aggressive enforcement of cannabis bans in the post-World War II decades exemplifies the broader pattern of the imperial boomerang effect, in which racial governance measures that first emerged in distant colonies were eventually imported into metropolitan jurisdictions and deployed against marginalized minorities within the domestic sphere.

The political dynamics leading to the early cannabis decriminalization efforts of the 1970s and the subsequent wave of liberal cannabis law reforms in the post-1990s were driven by the popularity of cannabis use among middle-class white populations. However, rather than dismantling the association between cannabis use and racialized perceptions of inherent criminality, these liberal cannabis law reforms have often resulted in bifurcated enforcement mechanisms, wherein racialized groups continue to face disproportionate enforcement of the remaining criminal provisions within decriminalization and legalization frameworks. For example, a recent report analyzing data from all fifty states in the United States between 2010 and 2018 found that African Americans were 3.64 times more likely than White individuals to be arrested for marijuana possession, despite similar rates of usage. The report indicates that racial disparities in marijuana arrests have persisted over the last decade, despite the enactment of liberal cannabis law reforms in many states. These disparities have been linked to the fact that decriminalization and legalization reforms have been implemented within broader policing landscapes that sustain the disproportionate targeting of racial minorities by law enforcement agencies.

The discussion in this Article helps “provincialize” the ostensibly universal moral discourses that have legitimized international cannabis bans. This perspective sheds light on some of the complexities currently under consideration amid growing global debates over the future direction of cannabis policy. The development of legal cannabis markets at national and transnational levels provides new opportunities for dismantling repressive cannabis policies and establshing regulatory regimes that are informed by values of human rights, global health, Indigenous rights, and environmental justice. This Article has illuminated the crucial need to redesign these regulatory regimes in a way that addresses the colonial legacies so deeply entrenched in the prohibitionist-oriented agenda that has long dominated this policy terrain.

Senior Lecturer, Vice Dean, and Co-Director of the Center for the Study of Crime, Law, and Society, University of Haifa Faculty of Law, Haifa, Israel.