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With cliffs, abysses and deadlines on every front, the New Year’s shaping up to be a dangerous place for justice. Consider the pressure to do “something” on gun violence. Spurred by the horrific slaughter in Newtown, President Barack Obama has tasked his administration to get serious about legislation before the end of next month. “This time, the words need to lead to action,” he said.

But what action? On gun control, a battle royal is shaping up. On mental illness, action may come more easily, but it may be just the wrong sort.

We still don’t know if the gunman in Connecticut suffered from mental illness but the killer of four firefighters in Webster, New York, was clearly disturbed. (In the note he left, he pledged to burn down the neighborhood and “do what I like doing best, killing people.”) The moment invites politicians and pundits who are jockeying for limelight (and scared of the NRA) to call for increased mental health screening and treatment, even of the mandatory sort.

PBS broadcast a piece this week about California’s “Laura’s Law” which provides court-ordered outpatient treatment for the seriously mentally ill. It was passed in 2002 but generally shunned since for civil liberties reasons. Nationwide, forty-three other states have laws permitting some form of involuntary outpatient commitment, and as PBS reported, the recent killings “have raised once again the issue of forcing the mentally ill into treatment.”

Author activist Dean Spade, a professor of law at the University of Seattle, says that incidents like the Virginia Tech and Newtown shootings are often followed by calls for increased surveillance and involuntary treatment of people with mental illness.

“This is not surprising—for decades we have been told that locking more people up and building more walls and metal detectors and installing more cops and cameras will make us safer, so we are used to that response,” said Spade this week.

The problem is, it does not work, and instead the people who are targeted are not those who are actually most dangerous, but those who are already considered “suspicious” in culture that’s racist, xenophobic and anti-immigrant.

“We have a long history in the US of giving people involuntary medical treatment and using mental institutions to lock up people who are “different” or threatening to social norms,” says Spade. What will actually make us all safer is more accessible, voluntary mental health care. About one in four adults suffers from a diagnosable mental illness, according to the National Institute of Mental Health, but millions of those who report needing mental health services don’t receive care because of its cost or its negative stigma.

“So many people who could use mental health care do not reach out for it because they are afraid that they will be locked up involuntarily if they reach out to a provider,” says Spade.

At his press conference announcing the task force to reduce gun violence, President Obama said, “We’re gonna need to work on making access to mental health care at least as easy as access to a gun.”

Yet, exactly as the shootings debate is playing out, funding for mental health services are teetering on the fiscal brink. Obama and Speaker John Boehner are considering long-term cuts to Medicaid, which underwrites services for more than 60 percent of people in the public mental health system, according to the Department of Health and Human Services. And that’s on top of state cuts amounting to some $5 billion from public mental health spending in the past four years, even as ten percent more people have sought services.

It takes us back to the same old story: we’d all be healthier under a free national healthcare system not subject to the Congressional football match. Meanwhile, we’re likely to see action for action’s sake, and that’s served us—especially some of us—very poorly.

I had a chance to talk recently with Spade, about “trickle-up, rather than “trickle-down” justice. Trans activist and founder of the Sylvia Rivera Law Project, Spade is the author of Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law. An edited transcript is below. The video is posted in two parts, here and here.

PART ONE: The Most Imprisoning Society in the World:

Laura Flanders: Let’s start with Sylvia Rivera, The Sylvia Rivera Law Project which you founded ten years ago was named after a very special person, but not someone who is well known. Can you tell us a little bit about Sylvia?

Dean Spade: Yes, Sylvia Rivera was a trans women of color activist who was extremely active in the sixties and seventies. She was one of the people at the Stonewall rebellion. Some people credit her with being the first person to throw something at the cops. So she’s kind of a historical figure of great import for that reason. But for the Sylvia Rivera Law Project, the reason she is so important to us is throughout the course of the mainstreaming of the gay and lesbians rights movement in the seventies, eighties, nineties and today, she was a voice saying that we cannot keep marginalizing people of color and poor people.

She stood up against the way that trans people were kind of kicked out of the movement and the way that the “gay and lesbians rights” frame came to center white people, people with wealth, people who met traditional norms; gay and lesbian identities that look as much as possible just like straight couple identities, and she died in 2002, the year that I started the project. We do our work with her as one of our key inspirations for what it means to build racial and economic justice and our struggle for trans resistance.

And what is a poverty law center? What does that mean?

[A poverty law center] means that one of the main things we do is we provide free legal help to poor people who are facing a bunch of different issues. In the context of our work, trans and gender nonconforming people experience really specific, difficult conditions inside the systems where poor people are concentrated.

Homeless shelters, juvenile facilities (like foster care group homes), jails and prisons: all these places are gender segregated: men’s, women’s, girls and boys. They are places of extreme violence for gender outsiders and also for a lot of trans people there’s a lot of exclusion.

Our clients can’t get placed in drug treatment, can’t get placed into a shelter because they are going to be placed incorrectly and they’re going to face a lot of violence. So, we’re looking at the specific, really intense conditions of violence and poverty that trans communities are facing and we are providing free legal assistance, from things like deportation proceedings to welfare hearings.

How has the economic crisis of the last few years affected the people you work with?

The economic crisis has had huge impacts on our clients. Already the people we work with are criminalized, highly poor and homeless, but cuts to existing programs and benefit systems (really going back to the nineties) have made a major impact on people’s abilities to get basic needs met; to get housing.… And of course the drastic growth in criminalization and immigration enforcement means that more and more of our clients are locked up in various prisons.

[For a trans person] what is the trajectory from maybe having a low-wage job to finding themselves criminalized or locked up?

Most trans people can’t even get low-wage jobs because there is just really widespread discrimination. People are like, “We don’t want to hire someone like that to work in our store…”

Most people are pushed into criminalized economies. A lot of trans people are in the sex worker economy because that’s one of the only places where trans people are allowed to work. That, of course, leads to high levels of criminalization. [Also] there’s a stereotype…that trans women of color are all sex workers.

Tons of our clients are people who whether or not they are engaged in anything illegal are being profiled and policed. There are several sort of routes to criminalization. Also, it’s a crime to be a poor person in the United States. In New York City you can see this every day: sleeping outside is a crime that can get you locked up; sitting on the sidewalk if the cops think you’re poor or homeless can be a crime. Just getting by and being poor can mean going to jail.

Are trans people more likely to be homeless?

Yes. Trans people are more likely to end up homeless. One of the reasons is, it is so unsafe in the existing shelter systems. One of the pieces of work of the Sylvia Rivera Law Project over the last ten years is focused on the treatment of trans women in the department of homeless services here in New York City and this work has kind of ricocheted around the country with a lot of groups concerned with similar issues. In general, in homeless shelters, trans woman are denied access to women’s shelters. So the option is go into the men’s shelter and be the only woman there and face enormous likelihood of sexual assault. Or, stay street homeless because you are trying to figure out what’s the safest thing. If you don’t go into the shelter system in most cities you can’t qualify for other forms of low-income housing.

The problems around job discrimination produce the likelihood of homelessness and poverty, and then there’s the fact that the minimal services we have don’t accommodate trans people.

What about family care? We hear about a lot of people staying much longer than normal with their families, their birth families or going home when they can’t find a job in this economy.

Unfortunately most trans people experience a lot of family alienation because of our identities. There are always counter stories (there’s a lot of hope in that area and I think that there are some changes happening), but it’s a pretty typical experience not having family support if you’re trans, which can contribute to poverty having a deeper impact because there’s not a safety net there.

So we’ve established that you’re dealing with people who are some of the most vulnerable, the most vilified, the most criminalized in our society. You come out with an analysis that isn’t just about them or even about them, it’s about our society. What have you learned, in broad strokes, from this work that has surprised you?

I think the biggest takeaway from the work I have done from the Sylvia Rivera Law Project for the last ten years is the significance of different forms of criminalization in the lives of poor people, and the way that that criminalization is highly racialized and highly gendered.

[It’s racialized and gendered] in terms of who gets arrested and what the police think looks unusual [and in terms of] which neighborhoods [police] spend time patrolling…[also] who’s doing the work, or surviving in ways that are going to give them too much contact with the police. And what actually happens in America’s prisons.

We are the most imprisoning nation in the world. We have 5 percent of the world’s population and 25 percent of the world’s prisoners. And the people in our prisons are primarily people of color and poor people imprisoned for crimes related to poverty.

Inside those prisons there is outrageous racial and gender violence, in all of them: the women’s prisons and men’s prisons.… All of that picture, plus the additional picture of how much our immigration system has grown (and especially within the last ten years). We are deporting more people than we’ve ever deported, our immigration prisons have also grown by about four-fold; [they] are privatized and run at a profit. When you look at all of that, [the prison system itself turns out to be] one of the biggest sources of violence in the lives of Americans in my opinion.

What does it have to do with our model of change? Often our stories of change in this country have been, well, if you could just criminalize certain kinds of behavior—things like discrimination or violence against women or hate crimes—that will improve society. Will it? What do you think about hate crimes and the legislation that has tried to criminalize discrimination?

One of the really interesting contests inside trans communities and more broadly in queer and trans politics is whether or not hate crime laws actually work. Whether or not they are a good way to try to deal with violence against queer and trans people. And a lot of us are saying that this strategy doesn’t really work. It definitely doesn’t prevent violence against us.

Nobody has ever argued that when people are thinking who to beat up or kill tonight they look through some book and say, “Oh, there’s a higher penalty if I do it for this than that.” That’s not how violence works. There is no argument that it prevents our deaths or beatings, but what it does do is it enhances the punishing power of the system that is actually the main perpetrator of violence against us.

In the lives of SRLP clients the most common perpetrator of violence is the police, corrections officers or immigrations officers. What does it mean to add power to that system?

Part of the way we see it is that the system has been desiring growth very intensely for at least the last forty years and that growth has been motivated by profit (prisons are privatized, etc.). So, the real reason that the system wants to pass hate crimes laws is not because it is going to save our lives, but because the system wants to grow in any direction. We’ve really been looking carefully at whether or not that strategy has any benefit for preventing violence.

When you look over the ten years of the Sylvia Rivera Law Project—and congratulations on your ten years—what do you see? There is certainly more visibility, there’s more inclusion, there’s more “tolerance” [of trans people.] What else?

I guess I would say that in the last ten years you see more gay and lesbian organizations put “T” in their mission statements. There’s some more visibility in the media of certain kinds of stories about trans people, yet the actual conditions on the ground for trans people are worsening with the growing criminalization and immigration and the growing wealth divide in the United States, which the Occupy Movement has made very visible.

That’s one of the questions I am asking in the book: How come certain kinds of visible inclusion practices don’t result in material gains? I think you could ask that more broadly looking at the last forty or fifty years in the United States. There has been so much work to declare us more equal in law, to say that racism and ablism and sexism are illegal, and yet you see the actual conditions of racialized violence and of the growing apparatus of criminalization worsen. You’ve seen the wealth gap worsen, you’ve seen women still experiencing an enormous wage gap; you’ve seen the attacks on reproductive health worsen. You’ve got to ask what is it about legal inclusion or legal equality frameworks that don’t deliver the goods on the ground?

So what is it?

I think part of what I think I’m learning from my own experience in trans resistance and other movements is that those promises of legal equality that allow state apparatuses of violence to grow in our names don’t actually deliver what we need. To actually get what we need [we need to understand] that grassroots struggle has been whatever has won anything material in terms of material change in the US.

I think the question is how can we turn our attention away from just getting our names on hate crimes law or our names on antidiscrimination laws that aren’t going to deliver the goods, and towards actually building meaningful strategies for dismantling criminal and imprisonment regimes, for getting rid of these violent border regimes that we have and for actually addressing poverty.

PART TWO: “Trickle-Up Social Justice”

How did you get involved in all of this? How did you grow up?

I grew up in central Virginia with a single mom and then later with some foster parents. I grew up as a poor person. I think that that had a lot of impact on my understanding of the world, and also with a single parent and seeing the sexism my mom experienced as a low-wage worker trying to get by in the welfare system. I think I was heavily politicized by the mid-nineties welfare reform, which really helped me understand the stakes of some important policies that I really cared about. I was also really politicized by feminist and queer movements in that same time period. I think that led me to sort of formulate the politics that said, How can we have racial and economic justice be the center of queer-trans resistance, instead of an afterthought or something that is entirely left behind?

Do you have success stories you want to share? I know you are involved heavily with fights to stop the building of a new youth prison in Seattle and similarly involved with the stop-and-frisk campaigns in New York.…

I think some of the most exciting strategies I see around the country are strategies to stop the expansion of criminalization and immigration enforcement. That looks like a lot of different things on the ground. It looks like people in local places like what we are doing in Seattle, trying to stop to stop the building of new prisons and jails—that’s huge. The system keeps expanding, it keeps sucking more people into it and hurting them while they’re there and not solving any of our problems.

Also, there’s a major national movement to stop what Obama has called “secure communities,” the framework increasing the participation between immigration enforcement and criminalization.

It’s also seen, obviously, in SB 1070, the famous controversial “show me your papers” law in Arizona. That whole trend towards criminalizing immigration and forcing more and more immigrants to live under worsening conditions is being fought back at so many levels. Also, the campaigns against stop-and-frisk here in New York City that have been very publicized. All of these are efforts to look at what is making this system keep devouring our communities; how do we dismantle brick by brick these really harmful machines that are leading these communities into these prisons, and how do we actually build what we need to be safe?

There are two things that I want to quickly lift up from your book, related to the way you use language. You don’t talk about discrimination; you talk about “life-shortening.” I’d like to ask you about that choice and you talk about an “imprisoning” society and people being “criminalized.” In most texts you read about people engaging in criminal behavior or “criminality” existing in certain communities. Talk about those choices and the thinking behind them.

The reason that I talk about harm and violence facing communities in terms of “life-shortening” (or sometimes I talk about the “distribution of life chances”) is because I am trying to get us to think in a material way on the ground about why some people’s lives are affected by lack of healthcare, lack of adequate nutrition, being exposed to more pollutants.… The kind of material, harmful conditions that face us, which our communities are trying to resist.

I’m trying to talk about that because I want to move away from a conversation that’s solely about whether we can get the law to say good things about us. The government has declared that it’s not okay to beat up trans people; we have the federal Matthew Shepard/James Byrd Hate Crimes Law and people see it as a big stance against violence. [But it won’t prevent the violence that we’re talking about.]

[Instead, I’d like us to be talking about] all the actual, material conditions that are shortening our lives, that are happening all the time and are being exploited and increased by austerity measures—and other moves from that same government that declares that our deaths are a problem.

I think part of what the book is trying to do is shift us away from asking, What does the law say about us to what are legal structures doing to us and how do we actually resolve those material conditions?

In other words, emphasize the active verbs around criminalizing and imprisoning?

Yes. We live in a country where twenty-four hours a day you can watch Law and Order on TV. There’s a lot of propaganda around criminality that tells us that there are these dangerous bad people, serial killers, serial rapists, who’ve got this criminal behavior problem.

In reality or criminal justice system works very differently. The reality is that all of us break laws all of the time, but that only certain people and certain communities are heavily policed and pushed into prisons (usually for very low-level crimes related to poverty).

When we move away from thinking about individual criminals and bad people (which is the fiction that justifies the system) and look instead at these giant nets that are cast over (primarily) people of color and poor people in communities so as to bring more and more people into these private prison systems, where prison guard unions and prison corporations are seeking to influence politicians to pass more criminalizing laws (that will fill the beds and make more money).…

It’s a very different way of thinking about what criminality is, what crime is and what we would actually do to try and have a safer country.

Does it change your perspective on change making? And how social justice increases in society? We are often led to believe that if you let some people forward the rest will follow, but you suggest that it’s the other way around.

One of the ideas that I care a lot about is an idea that I call “trickle-up social justice” as opposed to “trickle-down.” One of the ways of thinking about social change is, let’s get one of the few most charismatic people, the people that look the most like what society already thinks are good people, and have a few really spectacular cases and maybe some New York Times articles about them and people will think that we are good and like us and perhaps we’ll make an advance for everyone.

It turns out that doesn’t really work.…

It turns out if you solve the problem for the people who are the least vulnerable of the vulnerable, usually you end up mobilizing ideas that actually further the stigma of those who are considered outside or not good enough.

The idea of trickle-up social justice is that we should ethically start with those who are facing the worst conditions, those who are most losing their lives, those people in prison and immigration facilities and experiencing poverty and homelessness. We should start by figuring out how to solve the problems for them and inevitably that will solve the problems for everyone. It doesn’t work in reverse. That’s part of the idea. It’s a critique of the gay and lesbian rights strategy of choosing a few really charismatic, white couples and having that be the image of what an anti-homophobic framework is. That hasn’t really worked out for people on the bottom.

Dean Spade, Thank you.

Thank you!

Dean Spade is the co founder of the Sylvia Rivera Law Project and the author of Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law.

Check out Melissa Harris-Perry’s latest column on the dangers of fear-driven policymaking.