This article was originally published ///

ABSTRACT 

Anthropologists have long understood that a society’s ideas about who or what is risky depend on how meaning and worth areattributed to objects, people, and processes in a given place and time. However, until recently, little consideration has been given to the ways race and other hierarchical relations of power and difference shape how risk is constructed and deployed in social life.This article explores how race and criminal status intersect to shape the perception and management of risk and vulnerability in the United States by chronicling the lived experience of one young African American man who was prevented from obtaining an emergency medical technician (EMT) license because of his felony convictions. His pursuit of the EMT license and a career in firefighting exposes how risk, as a purportedly value-neutral concept, builds on racialized ideas about threat and vulnerability and further entrenches racialized social exclusion. Whereas many have decried racism as an unfortunate by-product of actuarial practices, I argue that racism and antiblackness are among risk’s core animating logics. Challenges to risk evaluations must therefore go beyondpolitics of deservedness, rehabilitation, and inclusion to confront the foundational premises of risk head-on.

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Keywords: criminalization; criminal record; conviction; prisoner reentry; employment; captivity

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                                     on the south side of the I-10 freeway in Southern California’s Inland Empire region, I waited for Royal Ramey, a young African American man I had met in 2015, shortly after his release from prison.1 As customers exited the coded-entry bathroom, a steady succession of unhoused people in need of a place to refresh themselves ducked inside. Ella

Fitzgerald and Louis Armstrong’s “Dream a Little Dream of Me” played loudly in the background.

I was anxious to hear how Royal’s dream had unfolded. Last we had spoken, he was determined to become a firefighter with Cal Fire, California’s premier state agency. He had first been introduced to firefighting work during a four-year prison sentence, when he had discovered both that he liked the work and that he was good at it.

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Before long, he breezed through the double doors, sporting black athletic shorts and a T-shirt silk-screened with the famous motto “Just Do It” in white letters. A calm confidence surrounded him, contrasting somewhat with my memory of the frazzled young person I had known. He took a seat across from me at the small square table I had managed to wipe free of crumbs, and as he began to update me on his recent activities, it became readily apparent that beyond fashion, Royal

had been using the Nike corporation’s “No Excuses” slogan to organize each of his waking moments. In just two years, he had graduated from a local community college with an associate’s degree in fire technology, amassing nearly three dozen

professional certifications for things like basic life support, vehicle extraction, and rapid intervention crew operations. He had also developed his practical knowledge by serving three seasons as a wildland firefighter with the US Forest Service. As the California Department of Corrections and Rehabilitation

(CDCR) would soon quote him saying, “If you apply yourself and have a good, positive attitude, you can make the cut and have the future you are looking for.”

There was a hitch, however, blocking Royal’s ultimate dream to land a permanent position with Cal Fire: most of its positions, especially those in the urban and more populated areas of the state, require an emergency medical technician (EMT) license,2 and the California code of regulations requires that EMT certificates be denied to persons with two or more felony convictions or one serious conviction for 10 years after release from prison.3 Having been convicted twice in the past

decade on felony charges, Royal would be denied by either of these measures. Additionally, to even apply for the license, one must first pass a certification test administered by a national review board for EMTs, which has its own criminal records–based stipulations.4 Despite these formidable barriers, Royal Ramey refused to be dissuaded. You see, alongside his full embrace of the personal responsibility ideal, he was also drawing inspiration from the 30th anniversary version of the Nike campaign, the Kaepernickian impetus to take risks in pursuit of one’s goals.

“I found a loophole,” he whispered, lowering his tone and leaning in from his seat. “Cal Fire just wants you to have the county card, but the card can be from any county.” Royal had discovered that while practically required for getting hired in

a competitive county or advancing to more highly paid and prestigious assignments, the EMT license was not technically required to get started. Rather, the minimum requirement was a first responder credential (since renamed safety first aid), and these are administered by local medical directors who have

some discretion in determining the standards in their counties. The discovery had prompted Royal to begin browsing online for the criteria in different counties, and when he came across an advertisement for free first responder certification in a remote part of the state making no mention of a background check, he asked a friend to make a call on his behalf. “We’re just looking for the bad-bad guys,” they explained over the phone. “Felonies within the past five years, multiple convictions, arson, murder, etc.” Encouraged, Royal put on his best suit and drove

eight hours north, where, to his delight, a refreshingly candid discussion about his past and future unfolded face-to-face with the medical director. Deeply impressed with his combination of practical experience, classroom training, and evident determination, they said, “I have never met someone so remarkable. We’re gonna give you a shot.” With that, Royal was granted a two-year probationary credential and an assurance that he would later be granted the EMT license upon successful completion of the certifying test. California’s uneven political economy, it seemed, meant that in some counties, the need for skilled firefighters produced a more generous interpretation of the law.

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The prison-based program in which Royal had gained his first firefighting experience—Conservation (Fire) Camps—is jointly operated by the CDCR and Cal Fire. Carefully selected prisoners whose behavior has been exemplary and whose convictions are not considered overly egregious are trained in camp-like settings from which they are deployed to clear brush and “cut lines” to prevent wildfires and, as needed, to suppress wildfires alongside free-world firefighters. As wildfire seasons have grown longer and more intense, the reliance on imprisoned

people has grown. By 2019, one-fifth of the state’s wildland firefighting personnel was made up of people who were imprisoned.5 Because the pay rate was $1 per hour while working at the camps and an additional $1 per hour when actively fighting fire (compared with the average of $75,000 per year earned by Cal Fire firefighters), savings to the state have been estimated at $100 million per year. This double standard—an insultingly low rate of pay for imprisoned fire workers and massive savings to the state, coupled with exclusion from the profession—became a hot-button issue in the news media in the mid-2010s and, by 2017, a concerted focus of policy advocacy and raging public debate.

The regulatory agencies that birthed the restrictions now staunchly defend them through fear-based public safety frameworks. For example, as Samuel Stratton, legislative director for the Emergency Medical Services Authority’s (EMSA’s) Association of Medical Directors, said in a September 2018 news interview:6

EMTs often are entering the homes of vulnerable people—often older widows or older widowers who are at high risk for having things stolen from their home. We have a large number of children who are not protected when the EMTs show up. There’s a risk that the child would be assaulted or molested. We really have to have someone who is not prone to anger, who is able to control their emotions.

The agency’s justification is emblematic of the interweaving of predictive risk regulation with the criminal legal system that legal scholar Carol Steiker (1998) first named “the preventative state,” in which a range of surveillance techniques

are used in an “attempt to identify and neutralize dangerous individuals before they commit crimes by restricting their liberty in a variety of ways” (774). The related concepts “new penology” (Feeley and Simon 1992) and “actuarial justice”

(Feeley and Simon 1994; Garland 2001; Robinson 2001) signal a shift in the criminal legal system in the late 1900s from concern with the punishment and control of dangerous individuals to the categorical management of risky populations. In this approach to crime management, individuals need not be

identified as dangerous; it is enough that they be identified as part of a risk population and measures implemented to prevent future violations. Such risk prevention approaches are increasingly used to determine policing priorities, set bail policies, determine sentencing length and eligibility for release from prison, and justify techniques such as electronic monitoring, preventative detention, forced registration, and civil commitment (Garland 2003; Harcourt 2007). They also arguably animate tens of thousands of legal restrictions limiting criminalized people’s access to housing, government assistance, parental rights, civic participation, and employment.7 While conviction-based restrictions may feel punitive to those experiencing them, their logics, legal scholars argue, are definitively preventative in nature. As Sandra Mayson (2015) writes, “Most

collateral consequences of conviction purport to control and restrain people not for what they have done, but for what they might do” (303).

In this article, I examine this risk logic at close range, interrogating its premises, reasoning, and purported value neutrality. As will become plain through Royal’s effort to obtain the EMT license, at no point did the evaluation of his suitability

hinge on observed or verifiable evidence of his potential threat to the public. In fact, as I documented Royal’s journey to become a firefighter, cataloging his dogged and unqualified sincerity in the pursuit of each and every skill and credential, it became harder to imagine a person better suited to come to the

rescue in an emergency. Royal’s exclusion may not have been about punishment, as Mayson (2015) insists, but neither was it very convincingly about risk.When, over time, the gulf between his perceived riskiness and demonstrated trustworthiness became ever more wide, the contrast raised a question that I ultimately found hard to ignore: If not an objective issue of risk, what, then, was the insistence on his exclusion about?

RISK'S VANTAGE POINTS

While early notions of “risk” were linked to maritime navigation, trade, and insurance (Dua 2019; Levy 2014), contemporary Western notions are associated with the attempt to address the advent of modernity and its attendant anxieties

about the future. The advance of probability statistics and computer technologies enabling the manipulation of large data sets, combined with the expansion of the insurance industry and establishment of institutions and regulatory agencies

charged with risk management, worked to solidify the idea that through scientific expertise, risk phenomena could be calculated and avoided (Lupton 2013). This increasing preoccupation with the management of future hazards and insecurities

led European sociologists to diagnose the emergence of a “risk society” (Beck 1992; Giddens 1991), while scholars in the governmentality tradition began to describe a broad shift in governance from the regulation of individual conduct to the management of whole populations, using risk frameworks to steer and plan public affairs (Dean 1999; Ewald 1991; Foucault 1977; Rose 2000). Risk quickly became a core social organizing principle whose logic and vocabulary were used to conceptualize, assess, and control potential threats across fields as diverse

as insurance, medicine, public health, land use planning, disaster management, workplace violence, psychiatry, child welfare, and corrections (Bouk 2018; Harcourt 2007; Horan 2021; Lee 2016; Levy 2014). Given this orientation toward governance and social problems, much of the emergent literature has focused

on practical matters of how to identify, assess, measure, and mitigate future danger. Less attention has been directed (even in anthropology)8 to questions of how societies articulate and manage risk and uncertainty and the role of risk in shaping social life (Alaszewski 2015).9 Still, anthropology’s contributions to the study of risk have been foundational to research agendas in a range of fields

(Alaszewski 2015:208). Of particular influence has been the work of British anthropologist Mary Douglas (1966), whose seminal Purity and Danger examined the symbolic systems underlying ideas about risks and threats and identified a conceptual boundary between purity (associated with order, normality,

and safety) and impurity (associated with disorder, abnormality, and danger). Building on these ideas, Douglas’s (1985, 1992; Douglas and Wildavsky 1982) extensive writing about risk emphasized the maintenance of boundaries between

self and Other as critical to the ways different social groups identify some dangers as risks and attempt to manage future threats and ensure social order (Alaszewski 2015; Lupton 2013). Critical of approaches to risk as merely a technique of technocratic regulation and of psychological approaches centering individual perception and choice (Lupton 1999:53), “risks,” Douglas concluded, are selectively constructed anxieties, culturally embedded in systems of shared meaning and concern. Relatedly, anthropologists and others have insisted on the

centrality of value to concepts of risk. Indeed, “risk means that something of value is at stake” (Boholm 2015:13), and “the process of assessing risk is a particular case of that of ascribing value” (Sales et al. 2018:122). By extension, and crucial to the analysis presented here, is Boholm and Corvellec’s (2011) theorization of risk as relational. Building on Hilgartner (1992), they propose that a “risk object”—something identified or constructed as dangerous—is necessarily linked to an “object at risk,” something identified as valuable, vulnerable, and in need of

protection, such that to be identified as a risk object means to “in some way and under certain circumstances, to threaten the valued object at risk” (186).

Finally, ethnographic approaches have been especially useful for illuminating risk’s socially constructed, relational, and value-charged qualities, as well as the time- and place-specific nature of risk identification and management.10 Far from selfevident, attributing risk “depends on how groups and organisations in society frame an issue, how meaning is created, how arguments are made, how action is mobilised and how social and political processes emerge and develop, driven by,

among other things, scientific facts and their interpretation” (Boholm 2015:13, drawing on Law and Mol 2008). Thus, ideas about risk are constantly in motion and under negotiation as meaning and value attributed to objects, persons, processes, and groups shift over time in different contexts. Curiously, though, this understanding of risk as contextual, relational, and deeply embedded in systems of meaning and value has not necessarily translated to a theoretical focus on the ways race and other hierarchical relations of power and difference shape how risk is constructed and deployed in social life. This blind spot has begun to be addressed by recent analyses locating the origins of risk thinking and technologies within the context of the Atlantic slave trade and plantation economies (Subramani 2022) and demonstrating the centrality of race to the development of risk-based systems of health and life insurance, banking and lending, and government programs (Eubanks 2018; Fishback et al. 2020; Katzenstein 2020; Tillotson 2016; Wiggins 2020). Similarly, critiques of the use of

actuarial methods in policing and criminal sentencing show that not only do algorithmic tools and technologies produce racialized outcomes, but they also fold preexisting racialized inequalities resulting from decades of marginalization and discrimination into supposedly race-neutral criteria (Hannah-Moffat 2013; Harcourt 2007, 2015; Starr 2014; Tonry 2014).11 In this analysis, I think with anthropology’s foundational risk insights—risk as culturally embedded, contextually situated, relational, and value charged—alongside critical race scholarship within and outside the discipline, locating racism and antiblackness

as foundational to and constitutive of ideas of risk and threat (Browne 2015; Burton 2015; Muhammad 2010; Rios 2021).12 Following the lived experience of a Black person trying to get on the other side of the risk relation allowed me to see the ground-level ways that people and groups get constructed as risk objects and how race as “a historical and structural process of value differentiation” (Vargas 2018:42) shapes the construction of risk objects and valued objects at risk. Consider this: the fact that most job seekers who have criminal records are not white and a grossly disproportionate number are Black is an expected outcome of a criminal legal system that has historically targeted people of color as part of larger projects of white supremacy and racial capitalism (Camp 2016; Davis 2007; Haley 2016; Lytle Hernández 2017; Wells 1892).13 Yet rather than serve as a reminder of ongoing legacies of criminalization, the racial distribution of criminal records tends to reinforce the carefully constructed notion that people of color in general (Cacho 2012), and Black people in particular (Gross 2006; Hicks 2010;

Muhammad 2010), have a special propensity toward crime. The argument I advance, in a nutshell, is that while criminal records employment exclusion is indeed properly understood as part of a broad shift toward preventative risk governance, crucially, not everyone fares equally in its implementation. Owing to a long-in-the-making association between Blackness and risk (Hoffman 2018 [1896]; Key and Heard 1949), Black people have a unique relationship to the notion that gets operationalized in risk-based evaluations. By building on racialized valuations of vulnerability and threat and an already racially disparate criminal legal system, criminal records operate as a “racial technology of exclusion” (Inda 2005), reproducing inequality by differentially valuing labor along racial lines. Ethnographic documentation of Royal’s long journey to become a firefighter led me to see racism not as an unfortunate by-product of actuarial approaches, but as one of risk’s core animating logics.

As I hope to persuade the reader, the real debate is thus neither over whether people like Royal “pose a risk” in the empirical sense, as the regulators claim, nor over whether they “deserve to be included” in the moral sense, as advocates insist. Rather, not far beneath risk’s stated premises festers a deeper set of dilemmas: Who is seen as risky and who vulnerable? Who deserves to be protected, and who may serve as protector? And of vital importance, who gets to decide? The more fundamental battle, in other words, is over the risk relation itself.

In what follows, I trace key intervals in Royal’s pursuit of the EMT license from 2015 to 2019 to consider how penal risk—as an always already racialized concept—is conceived and negotiated in everyday settings. Three interrelated field observations inform my central argument. First, I scrutinize the substance and details of the review board’s exclusionary criteria, exposing the lack of there-there underlying the agency’s decisions. Rather than consult the available scholarship on recidivism, crime desistance, or workplace violence,14 the agency relies on arbitrary criteria, generalized assumptions, and their own inexpert, subjective reactions. Next, I examine the political nature of risk by contextualizing Royal’s exclusion within broader public debates on firefighting, labor, and imprisonment. The history and contemporary dynamics of this issue reveal how risk becomes

a container for the competing investments of multiple stakeholders whose investments collide. As a fluid concept, what is considered risky merges and shifts alongside other rationalities, absorbing and expressing the priorities of the day (Maurutto and Hannah-Moffat 2006). Risk-based practices, policies, systems, and “talk” serve as containers through which other priorities are circulated, negotiated, and defended. Yet in describing risk as “political,” pointing out the emptiness

of its calculations and highlighting its bureaucratic incongruities, I do not mean to suggest that risk is meaningless or simply a hollow cavern for the play of vested interests. To the contrary, Royal’s ascendance within the white, male, working-middleclass dominated firefighting profession reveals risk’s inescapable

embeddedness within the hierarchies in which it is situated. Risk’s fidelity to normativity is further explored when, inclosing, I examine the circumstances under which exceptions to the rules are made and contemplate possible challenges to risk’s stranglehold on escape routes from criminalization.

EMPTY ALGORITHMS 

The creation and enforcement of new laws and the reimagining of peoples are mutually reinforcing. Thus, people are arrested because they are bad, and one knows they are bad because they have been arrested. (Gilmore and Gilmore 2008:148)

Probationary credential in hand, Royal enrolled in Cal Fire’s basic fire academy in an even more remote corner of the state; the training academy did not require the EMT license for enrollment, as many entry-level Cal Fire academies do. His outstanding performance and outgoing personality caught the attention of a chief, and in March 2018, the agency offered him a seasonal job. Reluctant to leave his wife and kids but hopeful that the opportunity could eventually lead to a permanent position closer to home, Royal accepted the offer. Knowing that, to make it with Cal Fire over the long term, he would somehow need to obtain the EMT license, he also enrolled in an $850 course that prepares applicants for the certification test and submitted his application to the national review board for EMTs.

Barely two weeks into his new assignment, the form letter arrived by mail. It read: “Thank you for applying for national certification. We have received and reviewed the documentation you supplied. In accordance with review Board rules for eligibility, your application for certification has been denied because of convictions that require more time from the completion of sentence.” Royal was not surprised by the knee-jerk denial, and hungry for more information about the agency’s appeals process than was offered on the website, he emailed an administrator. In particular, he wanted to know, “Has anyone been successful in

the appeal process with a case similar to mine?” When the reply assured Royal that “each application is given individual consideration,” he began, somewhat optimistically, to assemble a portfolio of evidence that would prove he was worthy of the credential. The package he ultimately sent by mail to the agency’s Midwest headquarters contained 32 certificates of specialized training and 15 letters attesting to honorable character, including glowing letters from several fire chiefs and a statement of support from the medical director who had granted the probationary credential. In the meantime, the 2018 fire season continued to escalate. Royal called me from Paradise, California, where the “Camp Fire” was producing the most deadly and devastating destruction the state had ever seen. It was so severe, in fact, that it prompted a visit from Donald Trump to show support

for residents and firefighters, despite his disparaging tweets blaming California’s fire problems on “gross mismanagement.” Coughing and sputtering, clearing his throat, Royal could barely talk.

Usually when you go in a building, you have a SCBA [selfcontained breathing apparatus]. The wildland-urban interface is a different thing altogether. This here, you have to just do what you can to help the citizens, you have to fight fire without the SCBA on. . . . It’s just too much equipment, we’re carrying close to 75, 80 pounds. . . . These fires are so destructive, they’re just burning houses to the ground . . . the wind is carrying, it’s just too much. . . . This ain’t checkers, this is chess.

The intensity continued for four months straight. Twelve hour shifts often stretched to 24. Then you had 24 hours to get to your hotel, eat, sleep, rehab your engine, and get back to the fire. One morning at 2 a.m., Royal got “toned out” to a medical

emergency where an elderly woman was in respiratory distress. When Royal and his team arrived at the scene, the woman was lying on the ground (see fig. 1).

I asked her if she was OK, tried to get a response, and she

just lay there, her chest rising and falling, but she wasn’t

responding. I put the pulse oximeter on her, and it read 74.

My engineer called the paramedic to let him know it was

urgent. I held her, lifting her up to assist her breathing, and

directed another firefighter to get her some oxygen. I could

see in her face that she was glad to see us there. I helped

her to relax and keep the mask on. . . . She kept saying,

“Thank you, thank you.”

The cruel irony was not lost when, in the midst of this active caring for the very people Stratton was so worried people like him would exploit, Royal received the appeal panel’s second letter, upholding the original decision to deny him permission to take the EMT exam. This letter, signed by the agency’s executive

director, landed like a slap in the face:

After fully reviewing all the documentation you provided and following careful consideration of all facts surrounding this matter, it is my decision that the original ruling of the review Board remains unchanged due to the nature of the convictions.While we appreciate the steps that you are taking towards rehabilitation, these situations are granted opportunity for certification after five years since conviction or completion of sentencing.

By this timescale, Royal would not be eligible for certification until 2021. Scholars have observed that while truly predictive methods are in some forms truly on the rise (e.g., policing, bail eligibility, prisoner placement and potential release), the “actuarial turn” has always included practices that are not truly actuarial (based

on statistical calculation) and is thus to some extent more aspirational than empirical (Feeley and Simon 1994; Rothschild-Elyassi, Koehler, and Simon 2019). For instance, looking back at the late 1980s federal sentencing guidelines, which began to take risk into account through the inclusion of criminal history as one of two axes (the other being the severity of the offense), Lynch and Bertenthal (2016) show how the new sentencing approach did not in fact represent a shift toward risk-based management but, rather, the construction of criminal history as the key characteristic of criminal defendants, relying on logics of “time” to measure both culpability and future risk. As Rothschild-Elyassi, Koehler, and Simon (2019) argue, simply adding past criminal history to a matrix for determining outcomes

is not truly a prediction about future offending but, rather, a way to regularize judicial practice while leaving regulators with plenty of discretionary power.

Such a quasi-actuarial scheme informed the review board’s adverse decision vis-à-vis Royal. There was no algorithm underlying the decision but, rather, a set of assumptions: a criminal record signals risk, felony stands for severe, and a set

number of years after conviction indicates rehabilitation. In lieu of empirical assessment of any future risk via rigorously collected, observable evidence, the agency instead relies on loose logics of prevention, identification, and control to regularize its decisions. Furthermore, the judgment was also not “clinical,” in that there was no observed assessment of Royal’s fitness, ability, or skill, all of which he was demonstrating unequivocally, in real time. In fact, it was becoming clear that no quantity or quality of evidence would have satisfied the board because the

promise of “individualized assessment” amounted to little more than rigid adherence to an arbitrary timescale.15 Royal’s quickly advancing career caused him to press the issue. He needed to obtain the credential before its absence

raised a red flag.He picked up the phone and called the agency’s certification officer directly. When the first dial went to voicemail, rather than leave a message, as most of us might, he hung up and dialed again. This time, the officer picked up, and Royal

said something along these lines:

I am calling to ask your advice. I am on active fire duty in Northern California and need to be EMT certified as soon as possible. I am wondering if it is in my best interest to continue to appeal the current decision, or whether it would be best to end the appeals process now and reapply next year. I also wonder if you could give me a sense of how many applicants are successful in their appeals and whether the time passed from completion of sentence is a hard rule, or if the board is open to significant evidence of rehabilitation. Thankfully, the officer was not put off by the call, as Royal had feared. While reiterating the rules, he also said things like “due to your circumstance” and “given what you’ve got going on,” adding that while it would go against protocol to give his opinion about any particular case, people had indeed been successful in overturning adverse decisions. Royal felt especially encouraged when, in closing, the officer confirmed, “You work for Cal Fire, right? Be safe. We’re praying for you.”

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Risk Politics in a Fractured Penal State

Competing stakes in prisoner firefighting—those of prisoners and former prisoners, reformers, and distinct branches of the state of California—make it difficult to realize significant change. California’s Conservation (Fire) Camps were established during World War II, when a shortage of forestry personnel prompted the Conservation Camps to redirect their focus from roadways to fire. Through the Fire Camp program, inmates were sent to one of 41 temporary camps throughout

the state to bolster free-world firefighting units; over time, the program became a more permanent arrangement. The stated goal to “provide able-bodied inmates the opportunity to work on meaningful projects throughout the state” (https://

www.cdcr.ca.gov/facility-locator/conservation-camps/; accessed June 21, 2021) fits neatly within the philosophical parameters of the period historians of punishment describe as the rehabilitative era—a period characterized rhetorically, if not always materially (Phelps 2011), by the idea that prisons can and should be institutions of personal transformation. However, during roughly the same post–World War II period in which state corrections departments were chalking up the rehabilitative ideal, other arms of the penal state were busily building frameworks of occupational regulation that explicitly excluded people with criminal convictions.

Occupational regulation via licensing has a long history as an issue of labor economics, independent of the use of criminal records in employment; however, the two are interrelated in that occupational licensing boards have always restricted people with criminal records from becoming licensed (Hunt 1973). Licensing first surged in the United States from1890 to 1910 for professions related to health and law and again following World War II with the emergence of a more service-oriented economy (Kleiner 2000). Since the 1950s, occupations

requiring a license, special clearance, or credential to practice have roughly quadrupled (Department of the Treasury Office of Economic Policy, Department of Labor, and Council of Economic Advisers 2015), while the number of unionized workers has declined (Kleiner and Krueger 2010, 2013). Today, the American Bar Association estimates that there are 24,943 criminal records–related occupational licensure and certification restrictions across the United States.16 These restrictions are especially significant in states like California, where a full third of occupations require a license or credential (Rodriguez and Avery 2016). Critics question licensing’s purported aim to standardize the quality of professional services and protect public safety (Carpenter 2012; Kleiner 2006; Smith and Trudeau 2019) and argue that licensing negatively affects consumers and exacerbates overall wage inequality even as it increases wages for those who are licensed (Kleiner 2015; Kleiner and Vorotnikov 2018). Licensing is of particular economic significance to communities whose members have been targeted historically and contemporarily for criminalization (Black, Latinx, and Indigenous) and thus disproportionately blocked from access to stable, well-paid,

and career-advancing jobs. Case in point: California firefighting jobs requiring the EMT license pay roughly twice as much as those that do not (see appendix, available online; Burch and Smith 2021).

The California regulation restricting people with criminal records from EMT licensure derives its legal authority from legislation passed in 2008 amending California’s Health and Safety Code.17 This legislation required local authorities to

establish standardized procedures for conducting background checks and called for the creation of a centralized database into which local emergency medical services (EMS) authorities would be required to enter certain “data elements” about EMT candidates and licensees, including fingerprints, criminal records, and disciplinary actions. These new procedures were in part motivated by an investigation conducted by the Los Angeles Times and Sacramento Bee in 2007–2008 that detailed incidents of misbehavior on the part of California EMTs. The newspapers exposed a few dramatic cases in which EMTs who had been dismissed were subsequently able to secure employment as EMTs in other areas of California. Rather than address this accountability problem directly—as a centralized database for tracking professional misconduct could have accomplished—the EMSA made a giant leap, arguably going beyond its authority to establish a categorical lifetime exclusion from EMT licensure for people with two felony convictions, regardless of how old or irrelevant they were. The EMSA is not alone in its desire to keep people with criminal records out of EMS-related professions. Restrictions are also supported by the firefighters union—California Professional Firefighters—made up of local affiliates representing more than 30,000 members throughout the state. At stake for the union is professional reputation. As communications director Carroll Wills declared in a radio debate:

California firefighters are conducting patient care, and they are trusted by people to enter their homes in life-and-death situations. As a result, firefighters are held to the highest standards of skill, professionalism, and integrity. Just as with law enforcement, nursing, education, and other positions of public trust, that background, skill, and character is paramount. Those standards, in our view, need to be maintained. . . . There’s no shortage of men and women aspiring to be firefighters who are working hard and who meet those high standards. At bottom, it’s not right to the public and it’s not right to the individual firefighters whose lives

depend on how their colleagues operate. . . . It goes back to the public trust. (Airtalk 2019)

However grateful it is for the grunt work performed by imprisoned fire crews, as an agency, Cal Fire rejects CDCR’s attempt to use the profession as a rehabilitative tool and is generally unsympathetic to efforts to expand fire-related employment

opportunities to people with criminal records. In 2020, the agency took an active stand against Assembly Bill 2147,18 which creates an expedited expungement process for some people who served in prison Fire Camps, allowing them to obtain the EMT license. In contrast to CDCR’s investment in highlighting prison’s rehabilitative possibilities, the union aims to promote and uphold an image of Cal Fire as an elite institution by gatekeeping the borders of the profession. As Wills said, “Good for them that they can work to repay their debt to society in this fashion. But that’s not the same thing as a firefighter. . . . Firefighters are sworn officers. They take an oath and can and should be held to the highest possible

standard” (Good Day Sacramento 2019). It is precisely this kind of conflict and contestation among Cal Fire, CDCR, and regulatory agencies like the EMSA that

led Rubin and Phelps (2017) to urge for the “fracturing” of the penal state. Rather than assume consensus, they argue, we must identify and categorize the particular agents who constitute the state in the case at hand and pay attention to

conflict among those actors and power struggles for authority to determine penal policies and priorities. Conversely, while states may be diverse, fractured, and “made up of substitutions that often work at cross-purposes” (Gilmore 2007:28),

they are also, as Gilmore further notes, generally marching toward the same purpose, taking “direction from the prevailing platforms and priorities of the current government.” Thus, the firefighting conundrum is best approached not so much as the effect of truly incompatible philosophical or political agendas, but rather as messy evidence of the state of California’s desire to have its cake and eat it too: save money by using prisoner labor,19 bolster legitimacy by performing protection from criminal threat, and reaffirm the legitimacy of imprisonment and

the rehabilitative ideal by showing that prisoners (and therefore prisons) can do important work.

A similarly partial consensus exists between prisoners (and former prisoners) and critics of the state’s double standard. The fissures come to light in the news media, which of course does not simply “reveal” the public discourse but actively

constructs it (Hall 1993). Sympathetic accounts tend to frame the issue as a matter of moralism and rights (people who fought fires in prison ought to have the opportunity to fight fires professionally), a matter of smart justice (allowing former

prisoners access to good jobs reduces recidivism and thus enhances public safety), and most dramatically, a clarion call about exploitation so severe and racially disparate as to constitute a new form of slavery.20 These arguments have gained considerable traction among the general public, who, while not concerned with occupational licensing restrictions generally, are swept up by the romanticism of firefighting in particular and share a moral distaste for punishment practices that hearken back to the chain gang. The perspectives of prisoners and former prisoners are often invisibilized and sometimes actively squashed, even while their “stories” are frequently used to generate public empathy. Consider, for example, the following excerpt from an interview conducted by reporter Amy Goodman (2018) with imprisoned firefighter Dante Youngblood in September 2018.

Goodman:    How much money do you make?

Youngblood:    A dollar a hour.

Goodman:    When you’re fighting the fire.

Youngblood:    Yes, when you fighting the fire, a dollar a hour.

Goodman:    So, for example, last night, how long were you fighting the fire?

Youngblood:    Probably 20-something hours, so we probably made $20, $22, $24.

Goodman:    What do you think of that?

Youngblood:    Well . . . of course, anybody that got a job, you would think you should make more. I thought we was getting $2 until I came to Fire Camp, but it’s cool though. We makin’ monies for something that we’d probably do for free anyway, just for the time cut, so it’s all right, but, I will prefer, yes, we get more money, anybody in a working position would want to make more money.

Goodman:    You’re saving the state, to say the least, a lot of money. Some say it’s something like 100 million per year.

Youngblood:    I don’t know . . . of course that, I’m sure, but . . . I mean, some people don’t even . . . we look at it as . . . the time cut is more than the money to us.We’d rather make the money for sure cause we could still send the money to our families, but yeah, we only make a dollar a hour on the fires.

While Goodman repeatedly presses the problem of wage exploitation, Youngblood forefronts an alternative set of priorities: public respect, meaningful work, and above all, “time cut”—to get out of cages. His perspective echoes those expressed by other prisoners and former prisoners in a variety of eloquent ways: “Work is more than a wage, it’s an expression of humanity, and that is especially true in prison” (Bozelko 2017; see also Kilgore and Gilmore 2019).

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BOUNDARY MANAGEMENT 

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What black superheroes may lack in mainstream popularity

they more than match in symbolism, meaning and

political import with regard to the cultural politics of race

in America. (Adilifu Nama 2011:9)

Hopeful that his final appeal would be successful, Royal had gone back to work, and at the end of the 2018 season came the moment he had been working for. “I’ll never forget that call,” he recounted. “I was on a wildland assignment in Payson, Arizona, when my phone rang and the person on the other end said, ‘This is Officer so-and-so out of the northern region, calling to offer you a position as a full-time forestry technician in Riverside,California.’” Permanent positions in highly competitive Southern California are unattainable even to some who have worked many seasons with Cal Fire. They are almost never offered to people lacking the EMT credential, much less those who have been imprisoned. It was truly an incredible feat. Yet it did not stop the arrival of the appeal panel’s final letter upholding, again, the decision to deny Royal’s right to take the EMT test: “You have one more option in the appeal process. You may request a hearing before a panel of the Board of Directors. At this hearing, you must appear in person, at your own expense. You may have legal counsel present.” At this point, Royal was frustrated by the myopic insistence on his riskiness in the face of unequivocal evidence to the contrary. “I shouldn’t have to go up there [to the Midwest] and

plead and beg and give a big story,” he objected. “I’m not going up there to ask for favors. I’ve earned this. I’ve worked for it; I should be allowed to take the test!”

Unsure whether or not to keep appealing to the agency,21 Royal threw himself, full throttle, into Cal Fire’s intensive seven-week firefighter academy for new recruits. On a sunny morning in late April 2019, I took a seat in a cushioned metal folding chair among the audience of 150 or so family members and friends gathered to witness the firefighter academy graduation.

“Forward march!” commanded, from the rear of the auditorium, one of the four white, male captains who had overseen the cohort’s seven-week training. Dressed in the agency’s dark blue polyester uniforms, the 49 graduates filed swiftly into

three rows flanking the right side of the room. “Atten-tion!” Feet together, spines tall, heads lifted, eyes straight ahead. While gender and racial identity is not always apparent, all of the graduates read as male, and, but for a handful of recognizably Latino graduates, the rest appeared to be white. Royal’s wife, two kids, mother, father, wife’s sister and children, and I were the only Black people in the room.

The scene reminded me of another in Frank Wilderson’s (2008) memoir, Incognegro: A Memoir of Exile and Apartheid, in which Wilderson, who is Black, and his white girlfriend Alice are pulled over by the California Highway Patrol (CHP). Alice, the driver, chats casually with the CHP officer. Wilderson is bothered by their easy rapport, which so plainly displays a relationship to the law he has never enjoyed and which in turn painfully highlights a profound chasm between him and Alice. When, in parting, the officer asks Alice, “Are you sure you’re OK, ma’am?” we see how, despite Wilderson’s statistical vulnerability—as a Black man riding with a white woman and pulled over by a white cop on a lonely highway—and Alice’s apparent well-being, the officer’s concern is still and only for Alice.

As in Wilderson’s highway scene, not only were Black people unrecognizable as protectors, but also, on the other side of the risk relation, Black vulnerability went unseen; the glaring absence of Black people in the professional class generally

(Wilson, Miller, and Kassa 2021), and especially in the ranks of professional firefighting (US Bureau of Labor Statistics 2019),22 is irrelevant to the state’s regulatory apparatus. State agencies take seriously their role to protect some while assuming no responsibility for protecting others.

The ceremony began with first-, second-, and third-place awards for academic achievement. The trainees had taken five 50-question tests throughout the academy, plus a 160-question computerized final exam that included 100 questions related to structures, 30 related to wildlands, and 30 related to hazmat.

Additionally, throughout the weeks 14 distinct skill evaluations had been administered in which seven trainees were randomly selected to perform a pass-fail timed event. For example, one drill tests the ability to get up on a roof quickly. In six minutes or less, the trainee must put on their structural personal protective

equipment and SCBA, grab a 24-foot ladder from the side of a truck, run over to a building, set the base down in the exact right spot so as to lean the ladder against the building at a 75-degree angle, lock the ladder and reinforce it with a rope, and climb to the top and back down. Next came awards for all those who had scored more than 400 points in optional physical fitness tests, affectionately known as the “400 Club.” To earn 400 points, the candidate must first successfully run 1.5 miles in nine minutes or less (this counts for 200 points—for every second over nine minutes, half a point is subtracted). The remaining points are earned through push-ups (one point for every push-up completed within one minute), sit-ups (two

points for each sit-up completed within one minute), and pull-ups (two points for each pull-up completed within one minute). Seven of the 49 graduates attempted the challenge. Three were successful. Royal completed the run in nine minutes and seven seconds, 89 push-ups in one minute, 57 sit-ups in one minute, and 18 pull-ups in one minute—a total of 435 points! Amid whistles and cheers, he proudly accepted the award.

Finally, the graduates were called one by one to walk the stage, shake hands with the captains and chiefs, and be pinned with shiny golden badges by wives, mothers, and fathers. “Representing the Riverside unit,” called the captain,

“firefighter Royal Ramey.” Royal’s wife, kids, and father met him on the stage, his entourage noticeably bigger than most. Cameras snapping, Royal grinned, dabbing playfully as he stepped off the stage. In closing, an officer addressed the cohort directly. “I ask you to reflect on three things. Sacrifice, duty, and honor, which is earned through sacrifice to your duty.” Then, chanting in unison, the new firefighters pledged: As a member of the California Department of Forestry and Fire Protection, it is my duty to safeguard lives and property. To be honest in thought and deed in both my personal and professional life. I will be exemplary in obeying the laws of the land and the regulations of my department. I will never act officiously or permit personal feeling, prejudices, animosities, or friendships to influence my decisions. I recognize the bade of this position as a symbol of public faith, and I accept it as a public service. I will constantly strive to achieve these objectives and ideas. Dedicating myself to my chosen profession with the California Department of Forestry and Fire Protection.

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