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Recovering Feminist Lessons from the Past for a Less Carceral Future

In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence.  Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with the rise of what is now called “carceral feminism.”

Gruber begins her book by connecting the dots between the anti-sexual violence activism of the 19th century and today.  In doing so, Gruber centers the role of race in structuring how imaginaries of sexual exploitation and violence occur.  The voices of dominant groups (including white feminists) constructed the larger social narrative of sexual violence. Their ideas of sexual exploitation were shaped by the racialized ideas undergirding the political economy of the time, including the anti-immigrant sentiments of Chinese exclusion and the racist ideologies wrapped into slavery.

In Gruber’s account, the narrative of sexual violence was deeply connected to racialized ideas of purity.  This began early in American history.  The image of the exploited woman forwarded in early Twentieth century movements to end the traffic of “white slavery” was a young white woman who was lured into a relationship with a trafficker.  Drawing on the work of Jessica Pliley, Gruber shows how white slavery played into ideas of racial hierarchy, as stories of white slaves often involved women trapped into slavery by “foreign men, low-class criminals, or ethnic minorities.”   The idea that women were being sexually exploited also helped to reify ideas of sexual deviance.  In the context of Chinese Exclusion, first wave feminists sought to rescue Chinese immigrants perceived to be prostitutes.  Onto Chinese women, white “abolitionist” women projected a range of constructs, including the idea that Chinese women had an innate degraded status and that Chinese culture fueled this.  The voices of Chinese women, and their own experiences, were disregarded.

Black women who suffered sexual violence were not given the same status as “victim.”  During slavery and after, Black women were often hypersexualized.  The institution of slavery did not allow for the recognition of sexual violence faced by Black women as violence.  While the plight of Black women drew some white women to their cause, white nationalists used the trope of innocent white women to galvanize the anti-Black violence documented by Ida B. Wells and Fredrick Douglass.  To white nationalists, Black men were the primary cause of the stolen innocence of white women.

Moving forward in time, Gruber shows how these racialized ideas of sexual violence set in motion in the past adapted to the contours of the political economy of the day.  In the 1980s, neoliberal ideas of personal responsibility began to dominate policy-making, spurring the retraction of the welfare state.  And, as the welfare state retracted, the carceral state expanded.  As security came front and center in national debate and dialogue about American life, a new politics of victimhood emerged that gave new life to old tropes about the criminality of racial minorities.  Black men and black communities were, once-again, cast in the role of the serially criminal—almost pathologically predisposed to crime.  Black women continued to struggle to be seen as true victims, as stereotypes from the jezebel to the welfare queen were thrust on them.  There was little room for Black and other women of color in the growing and conservative victim’s rights movement in the 1980s that remained fixated on the white woman as innocent victim of crime.

Just as they had in earlier moments, as Gruber describes, feminists divided.  Some feminists focused on welfare and poverty, fought to prevent the dismantling of the welfare state, and demanded a structural approach to intimate partner violence.  Others did not.  While some feminists held their noses and joined forces with the police because they lacked any other funding or opportunities to bring about structural change, other feminists ran with the idea that prosecution, policing, and imprisonment should be the first—if not, only—resort. These feminists offered fodder for the rising push of security and anti-crime measures that would result in what we now call mass incarceration.  As Gruber points out, like in the 19th century, Black women’s experiences with violence were erased as feminist activists flattened women’s experience of violence into talking points supporting a criminal law-oriented approach

Our current moment can be defined, in part, through the ongoing, national conversation on criminal law reform.  Activists march through the streets demanding the abolition of the prison system and the defunding of police. It is becoming increasingly difficult to be considered progressive and see the criminal legal system as a solution to a social problem.   Yet, once again, feminist advocates find themselves at the cross-hairs of this fight.  As advocates fight for raising consent standards in the context of #metoo advocacy, for example, they run up against the idea that we should be making it harder for prosecutors to punish people.  Again, feminists grapple with how to end sexual violence, but now with a sense of how punitive approaches do more harm than good.

Understanding our contemporary moment, and the choices activists are making in calling for criminal justice reforms, requires a sense of the past: the decisions that have come to shape contemporary anti-sexual violence organizing and what feminists could have done better.  As Gruber powerfully shows, to find a path forward we cannot simply rely on the dominant feminist visions of prior moments, which often were mired in a racial and carceral feminist politics.   Instead, advocates should unearth the dissenting feminist voices that long argued that it was possible to have a world free of sexual violence and without the cruelty of the carceral state.

Cite as: Aziza Ahmed, Recovering Feminist Lessons from the Past for a Less Carceral Future, JOTWELL (April 20, 2022) (reviewing Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (2021)), https://crim.jotwell.com/recovering-feminist-lessons-from-the-past-for-a-less-carceral-future/.

The Politics of Penal Expertise

Benjamin Levin, Criminal Justice Expertise, 90 Fordham L. Rev. __ (forthcoming 2022).

Much of Benjamin Levin’s prolific work in recent years is concerned with what might be called the history of the criminal justice present; understanding the many intellectual and activist currents that are shaping the remarkable current moment when criminal justice reform in many states is happening (although in fits and starts) and claims of abolition not heard in a generation are also being raised. In Criminal Justice Expertise, perhaps his most intellectually venturesome work, Levin steps back from the frontlines of emerging law (topics like “wage theft,” “mens rea reform,” and “progressive prosecutors”) to look at the nature of expertise about criminal law and justice as it figures in debates about criminal justice reform. In doing so, I believe Levin helps many of us thinking and acting in this space to locate ourselves in ways more enabling of cooperating and conflict (when necessary).

For a long time, one of the dominant strains in criminal justice reform scholarship from academics has argued for a more administrative law model of criminal law in which the power of police, prosecutors, and prison administrations would be subjected to greater procedural transparency and scrutiny by expert analysis of objective data. This expert reform logic, sometimes referred to today as “evidence based criminal justice reform,” relates to an even more seasoned narrative about mass incarceration, that described it as a product of the success of a politicized punitive populism over an earlier consensus behind expert-based rule over criminal justice (David Garland’s The Culture of Control: Crime and Social Order in Contemporary Society 2001 is perhaps the most influential version of this account).

More recently, critics of mass incarceration have offered a second view on expertise, arguing that the problem may not be too much popular say over criminal justice, but too little real democracy. One version of this is the late William Stuntz’s influential article, “The Pathological Politics of Criminal Law,” in which he argued that once tolerably effective forms of popular democratic local control over criminal law had broken down due to the racial politics of urban control and the intervention of the federal government through the war on crime and the Warren Court’s criminal procedure. Among academics, until recently, it seemed the question of expertise was a debate between these two camps (which I’ve been on both sides of).

A third account is only now receiving academic attention, the reemergence to academic and public view of dedicated abolitionist discourse among activists and community members. Levin’s primary contribution is to flip the debate about expertise v. politics into a discussion of different kinds of expertise and the inevitability of politics as part of that expert role.

One important divide, often surfacing in the administrative law analogy, is the conflict between vocational and scientific or educational expertise. This division within the “expert” camp, goes back to the very birth of the university based social sciences which often positioned themselves as the solution to failed decisions by frontline police, prosecutors, and prison officials. Levin does not question the reality of punitive populism as a historical reality, but he does challenge the strong bifurcation between educational or scientific expertise and the politics of crime control. This administrative law model presumes that there is a values consensus on what we want from criminal law that is not in fact in evidence. Second, it presumes that politics in the conventional sense can be walled off. One of the biggest reasons to support Levin’s skepticism about an administrative law solution is the history of reforms by science-based experts. As recent histories of criminal justice have suggested (see Simon Balto, Occupied Territory: Policing Black Chicago from Red Summer to Black Power), scientific elites have often reaffirmed and hardened lines of racial discrimination.

Levin’s other contribution is to set this vocational/scientific expertise into a discussion with the emerging discourses of abolition and activism, not as a new populism (although interestingly it is that as well) but as a new or at least original form of expertise, one based on lived experience and standpoint subjectivity. While some of this new experiential expertise is abolitionist, it cannot be assumed that it will always align with pro-decarceration policies. Indeed, in other ways it strengthens the political authority of crime victims, and crime as a category of meaning. Ultimately, if we are entering a period when criminal justice expertise is associated with power, it will not so much push politics away as transfer it from the point of discretion to the selection of experts. This is a very helpful clarification of conflicts that we can avoid and those we cannot.

Cite as: Jonathan Simon, The Politics of Penal Expertise, JOTWELL (March 10, 2022) (reviewing Benjamin Levin, Criminal Justice Expertise, 90 Fordham L. Rev. __ (forthcoming 2022)), https://crim.jotwell.com/the-politics-of-penal-expertise/.

Time’s Wounds: The Criminal Process’s Accounting for Past Wrongs

Michelle Madden Dempsey, Coercion, Consent, and Time, 121 Ethics 345 (2021).

Michelle Madden Dempsey is one of the foremost contemporary analytic philosophers of criminal law, someone whose work engages in deep and important ways with issues of power and oppression located in and expressed through the criminal process. In past work, she has explored the ways in which the institutional role of the prosecutor operates to entrench the victimization of survivors of sexual violence. Another line of inquiry, and one to which this work returns, is the nature of consent in the criminal law and in moral theory, especially consent to sexual relations.

In her article, Coercion, Consent, and Time, Dempsey engages with the #MeToo/#TimesUp movements to “provide conceptual tools for making sense of (and understanding the limits of) three distinct responses commonly offered by those accused of past sexual misconduct: ‘But that used to be okay!’ ‘But everybody used to think that was okay!” and ‘But that was so long ago!’” In separating out these three responses—the claims of justification (I was permitted to do it), of excuse (it was impermissible, but I reasonably believed I was permitted to do it), and of accountability (I knew it was wrong when I did it, but the so much time has passed that I cannot now be held to account)—Dempsey taps into important issues for criminal theory and law more generally. Of particular interest is Dempsey’s focus on the importance of the passage of time.

Criminal law teaching generally pays scant attention to the role of the passage of time in cutting off accountability. Dempsey demonstrates just how strange is that oversight for our notions of criminalization. One, currently popular way to think about criminal law is as embodying the serious condemnation of the polity (represented by the state) for some moral wrongdoing. If the wrongdoer is still around, and if the act was neither permitted nor their conduct excusable, then why should the passage of time make a difference to the community’s power to hold the wrongdoer accountable and demand they make amends? Why is it that on the front end, if the state does not charge an offender within a few years of committing the crime, the offender may evade accountability or amends, whereas if the charge comes within that time frame, accountability and amends may stretch for years through various forms of direct and collateral sanctions?

The passage of time also plays a role in both the (moral and legal) permissibility of conduct and beliefs about the permissibility of conduct. Dempsey points out that conduct that was socially permissible at one time may become impermissible (and vice versa). The wrongfulness norms that guide and explain our conduct change over time. In the context of the #MeToo/#TimesUp movements, the issue is the evolution of wrongfulness norms that structure heterosexual relations. The brilliant insight Dempsey offers us is that these norms are used by people in dialogue with other social norms to structure their lives.

We often think about wrongfulness norms by taking a static snapshot of contemporary and prior norms of conduct. At different times, the same act, considered in light of that norm, may have different meanings. From our contemporary standpoint, we consider the criticized norm—Dempsey considers a norm of seduction in the now-maligned song, Baby it’s Cold Outside—in light of our contemporary mores. That does tell us something: it tells us whether the conduct in conformity with the criticized norm would be acceptable today. But it doesn’t tell us the whole story.

Dempsey’s critical insight is that people act not by simply applying a norm mechanically to guide conduct, but by playing with norms in complex ways. This norm-using activity takes place against background moral, social, and institutional norms which structure our interaction with the criticized norm and between people. Thus, what is from our perspective a morally wrong norm of social interaction, one that from our contemporary perspective should be avoided, might in the context of the norms of the time, take its place in what Tommie Shelby has called in his book, Dark Ghettos, an “impure” act of resistance. That changes not simply the social meaning of some act, but the activity itself.

Dempsey proposes, for example, that the act of seduction in Baby it’s Cold Outside is not the act of sexual predation, coercing an unwilling and less powerful woman into sex. Instead, and understood against the 1949 legal and social prohibitions against fornication, the act is (as the duet format might suggest) a joint, conspiratorial act seeking sexual intercourse despite the social mores of the time. It is, in that case, a joint act of sexually liberated resistance to the norms of sexual pleasure in that society. To be sure, it is an impure act of resistance: we cannot just wish away the structures of sexism and misogyny that determine who has power in this setting and who does not. Nonetheless, sometimes things are a little more complicated (although, on the alternative, predatory reading, sometimes they are not).

Under pressure of space, I shall leap over Dempsey’s fascinating discussion of excuses. The less familiar issues—for a criminal law audience at least—are raised by accountability delayed. These difficult questions revolve around whether the victim of a sexual assault has a duty to call her assaulter to account, and when. One version of time’s importance is to blame the victim for not acting quickly enough. Dempsey addresses these concerns under the heading of the doctrine of laches.

If the statute of limitations provides a formalistic separation of crimes into those that are serious and persistent and those that are not; then the doctrine of laches applies to victims, and separates them into those who act with appropriate expeditiousness and those who “sleep” on their duty to call a wrongdoer to account. Laches, Dempsey suggests, applies, “if the victim was unaware of the wrong, and her lack of awareness was reasonable.” That can happen, Dempsey suggests, when survivors have “suppressed memories of past sexual trauma or did not perceive themselves as experiencing sexual misconduct in the distant past, and yet now recall the abuse and/or finally recognize the conduct they experienced as wrongful”

Another way to think about the laches idea of sleeping on one’s rights focuses on power. When we think about what happens to victims of sexual violence or other forms of oppression, the idea of “sitting on their rights” covers a multitude of activities (or inactivities), some of which may be morally culpable, some not. For example, trauma can be expressed in ways other than not recognizing that one has been injured: it can come in the form of recognizing but not feeling capable of seeing through the criminal or moral process of calling one’s victimizer to account. Perhaps the survivor does not have access to the sorts of personal resources Hobbes calls the “faculties of the body and mind”; perhaps alternatively or in addition, the survivor is disempowered by lack of “riches, reputation, and friends” that the wrongdoer possesses.

When the balance of resources changes, either in civic society or through government, then perhaps so too does the power and perhaps the responsibilities of survivors. What the #Metoo/#TimesUp movements do (in part) is change the context in which survivors can speak up and call out. Before, survivors lacked allies who would protect them for calling out the wrongdoing, and social and legal institutions that would protect them from retaliation. #Metoo/#TimesUp creates a novel environment that hopefully empowers some survivors to speak up and challenge their wrongdoers.

A core way in which people push back against accountability is to argue that it is unfair to hold people responsible for past wrongdoing when “the rules have changed on them.” Dempsey notes that this is one way in which people defend the men who engage in misogynistic conduct or sexual assault, but it is a feature of a variety of forms of oppression. Her article usefully disentangles three ways in which oppressors argue that time’s passage renders irrelevant their past wrongdoing—it wasn’t wrong back then though it is now (justification); if it was wrong back then, then we all believed it wasn’t (excuse); and even if it was wrong and we knew it, you can’t prosecute me now (unaccountability). Dempsey’s article thus enables us to place the passage of time within the context of our central criminal defenses. Ultimately, she demonstrates that times’ passage may not create the ruptures that the guilty use to evade the consequences of their wrongdoing, but also that charting continuities between the present and the past may be more complicated than we sometimes think. The simple fact of (non)consent cannot be understood apart from the social, moral, and legal norms that structured the world in which that consent was given, and may explain why victims might wait so long before seeking accountability for the wrongs done to them.

For the most part, the United States legal system ignores the ways in which it has contributed to oppression in the past, and does so in the present, so that past oppression structures present harm. A theme of Dempsey’s work is that criminal prosecutors overestimate their power to protect survivors from harm, and underestimate the social costs they impose upon those survivors when they force them to come forward. Dempsey argues elsewhere that this is a failure of governance: it is how the state and society participate in the harm to survivors at the time of their injury and over time. Dempsey’s current article examines what happens when traumatized victims do come forward and are told that it is now too late. She powerfully argues that time does assuredly not heal all wounds, and that the criminal process’s inaction can impose some new ones of its own.

Cite as: Eric J. Miller, Time’s Wounds: The Criminal Process’s Accounting for Past Wrongs, JOTWELL (February 7, 2022) (reviewing Michelle Madden Dempsey, Coercion, Consent, and Time, 121 Ethics 345 (2021)), https://crim.jotwell.com/times-wounds-the-criminal-processs-accounting-for-past-wrongs/.

The Promise of Radical Crime Policy

Jessica Eaglin, To "Defund” the Police, 73 Stan. L. Rev. Online 120 (2021).

To the surprise of no one, the Defund the Police campaign has been subject to attack on several fronts—by political conservatives, police unions, and any number of Democratic Party politicians. How did Defund proponents respond to this high leverage moment? As the national debate about police budgets reached its apex, the Defund campaign seemed to scatter in several policy directions while clinging to the Defund mantra.

In To “Defund” the Police, Jessica Eaglin tracks these directions and draws a conceptual map of the various ongoing political projects designed to stem the flow of public money to police departments. To this end, Eaglin delivers a four-part typology of recent initiatives that plausibly fall under the Defund mantle: Police Abolition, Police Recalibration, Police Oversight, and Fiscal Constraints.

She describes the Police Abolition wing as pushing for the gradual elimination of police from public life and framing the effort in 2020 to slash police department budgets as a “first step” toward this end. Alternatively, the Police Recalibration wing considers Defund a call for municipal governments to channel a portion of police budgets to other fields of public administration such as mental health services. (P. 127.)

Police Oversight and Fiscal Constraints represent more moderate policy initiatives that also implicate police funding. Police Oversight is meant to characterize policies that condition police funding on the police department’s adoption of designated police regulations (P. 129), while policies falling within the Fiscal Constraints category reduce police budgets as a cost-saving measure. (P. 132.) Constraints policies flow from a normative commitment to minimalist public governance, having little to do with social biases in criminal enforcement. (P. 132.)

Eaglin’s typology is a critical clarification of some of the discrete ideologies and policy proposals designed to reduce police budgets. But the most compelling part of Eaglin’s article may be its embrace of the ambiguity of the Defund policy platform within political discourse. Observing the “jarring confusion” (P. 136) regarding the platform, Eaglin argues that its various interpretations and iterations actually serve to “denaturalize” the police department. (P. 140.) Put another way, the lack of clarity as to the full implications of the Defund policy platform has the effect of displaying the range of possibilities for the design of public security administration. The uncertainty over Defund may serve to highlight the fact that the police institution is itself a social construction, (P. 124) eminently malleable and thus whatever we as a society want it to be. In this spirit, Eaglin calls on the public to “embrace the uncomfortable space where we cannot rely on preconceived ideas” about how to best achieve public safety. (P. 139.)

There is, however, more than progressive politics within this uncomfortable space where the public debates the Defund policy platform. In a bit of a twist, Eaglin traces the history of the term defund to the conservative political movement in the 1980s to broadly degrade the public sector. Eaglin describes the discursive tactic as part of a larger effort to “subject the U.S. population to market forces,” making the term defund “the embodiment of neoliberalism.” (P. 138.)

Eaglin’s brief etymology leaves a looming question: to what extent is the political history of the term defund relevant to the current political moment? The Defund the Police campaign represents a political response to the growing evidence in the public record of police abuse of racial minorities and pathological excess in American penal administration. And while the defund campaign of the 1980s was steeped in a very different politics, there seems to be at least a degree of resonance between the defund campaigns past and present.

Consider one example. The billionaire Koch Brothers have spent lavishly in recent years in support of a diminished role for penal administration.1 The Brothers—libertarian stalwarts—are thought to be motivated in part by a general hostility toward public spending. For this reason, it seems safe to speculate that the two would have enthusiastically endorsed 1980s defund politics.

Scholars such as Michael Fortner find much of the African American community at the other end of the spectrum. Fortner points to polling as recently as the 2010s showing substantial African American support for greater police presence.2 This position would seem to align with the African American community’s longstanding contention that the state has not lived up to its responsibilities vis-à-vis African American individuals and communities. In this sense, any sort of state withdrawal from African American city neighborhoods via public funding reduction could be perceived as an extension of neoliberalism—in plain terms, state neglect.

The tension between the Defund the Police campaign and the African American community’s longstanding protest of state neglect may ultimately be addressed and resolved in public debate. But in the absence of successful mainstream efforts at Defund policy interpretation—efforts similar to Eaglin’s—it seems almost as likely that this tension will be lost in the conceptual fog. In which case, the reform community would have missed an opportunity to secure robust minority support for the substantial reduction of police budgets and with it the fundamental transformation of public security administration.  

  1. Molly Ball, Do the Koch Brothers Really Care About Criminal Justice Reform?, The Atlantic (March 3, 2015).
  2. Michael Javen Fortner, Reconstructing Justice: Race, Generational Divides, and the Fight Over “Defund the Police”, Niskanen Center (October 1, 2020).
Cite as: Trevor Gardner, The Promise of Radical Crime Policy, JOTWELL (January 11, 2022) (reviewing Jessica Eaglin, To "Defund” the Police, 73 Stan. L. Rev. Online 120 (2021)), https://crim.jotwell.com/the-promise-of-radical-crime-policy/.

Decolonizing Criminology and Its Relevance to Understand the Birth of the Prison in Latin America.

Libardo José Ariza and Fernando León Tamayo Arboleda, El cuerpo de los condenados. Cárcel y violencia en América Latina (The Body of the Convicted. Prisons and Violence in Latin America), 73 Revista de Estudios Sociales 83 (2020).

In criminology we are used to reading brief and ‘filtered versions’ of the history of the prison. Despite recent works that provide useful summaries (Rubin, 2019),1 our main knowledge about the emergence of the prison still comes foremost from the liberal or ‘Whig’ histories or from revisionist accounts (represented by Rothman, Foucault, and in a distant third place on the podium Spierenburg, Rusche and Kirkheimer, Ignatieff, and Melossi and Pavarini). The liberal version asserts that the emergence of the prison was the product of the ‘Enlightenment’ in the eighteenth century, and that this new form of punishment was a progressive triumph of humanitarian ideals which opposed corporal punishments and public executions. The revisionist version questions this benevolent explanation and, in the most influential Foucauldian version, declares that prison is also a cruel but ‘hidden’ punishment addressed to the soul (instead of the body), with the goal of disciplining and creating ‘docile bodies’, and destined not to punish less but better. Both the liberal and the revisionist versions have also been subject to criticism. Ariza and Tamayo’s paper El cuerpo de los condenados. Cárcel y Violencia en America Latina (The Body of the Convicted. Prisons and Violence in Latin America) provides a good example why both accounts need to be reconsidered.

As so often happens in criminology, and in general in the social sciences, our accounts derive mainly from the countries that produce them, the US, and the UK. In the social sciences, this generally means that even in Spain we explain the history of prison comparing ‘the system of Auburn and Philadelphia’. This is logical, to a certain extent, because the main scholarship has been developed there. However, this sometimes misleads us because the chronology of the birth of the prison, its principal ideas and influences, and also finally the main actors might obviously be more diverse in different countries. In her fascinating paper Mary Gibson (2011) summarizes the birth of the prison in three other continents to explain that not all countries followed the sources or tempos of the birth of the penitentiary. There are countries where the emergence of the prison ‘was introduced by a colonial government (Vietnam, Africa), by indigenous rulers under imperialist pressure from Western powers (China, Japan), or by postcolonial leaders (Peru).’2 This literature produced from the margins allows us to capture new elements surrounding the origin of the prison institution, like racism, European imperialism, the brutal pre-modern conditions of the prison, and the substitution of less violent punishments existing in these societies before the prison, composing a more complete picture of the birth of the prison.

The paper by Ariza and Tamayo therefore helps with ‘decolonizing the birth of the prison’. Following the lead of other South American historians like Aguirre (2009),3 we can learn how in Latin America the prison did not play such a central role in the 1800s because of the existence of other form of punishments, such as conscription into the army or the big proprietaries, that served to maintain and reproduce the existing social order. Since the prison was not central, and the state was weak and poor, the conditions of this new institution were brutish (but also paradoxically less ‘disciplinarian’, allowing at least some prisoners a greater degree of autonomy), far from that proclaimed by the reformers and proponents of ‘the well-ordered prison.’4

The inhumane conditions of existence inside Latin American prisons are what form the main thesis of Ariza and Tamayo’s paper. They question if the shift in punishment ‘from the body to the soul’ and the demise of corporal punishments that is represented by the emergence of the prison really took place in Latin America. Their paper on Colombian prisons provides a vivid description that allows this account to be questioned. In the prisons in Colombia the situation is so deplorable and violent, that it is certainly not only the ‘soul’ that is being punished but the body of the convicted. Inside Latin American prisons the risk of contagion from HIV and hepatitis, sexual assaults, not having access to physical space, natural light, or water, all affect the right to life and health. Therefore, the explanation so favoured by the liberal version of prison as a punishment that ‘deprives of rights’ also comes into question, since the punishment impinges on the bodies of the convicted. In sum, ‘Corporal violence is a central part of the imprisonment experience in Latin America.’ (P. 89.)

A final reason why readers might find this paper interesting is its focus on prison reform, and the role played by the courts. All countries have to a certain extent tried to mobilize the law and the courts to produce some improvement in prison conditions and prisoners’ rights. And scholars have soon realized that the law does not seem to affect the profound forces that shape prison life; beneath prisoners’ rights, prison life continues to be quite immune to reform. Finally, criminologists have also noted that most of the prison reforms can only guarantee procedural rights, protections on how decisions are taken which might legitimize this discretionary and sometimes arbitrary power, making it appear as if it is subjected to the rule of law, whilst still being outside the imperium of the law.

The authors provide one example of the intervention of the Constitutional Court in Colombia. Prisoners trust or rely on the possibility of judicial reform, and the Constitutional Court has provided judgments declaring unconstitutional the prison situation and arguing for basic humane living conditions. However, the sad conclusion is that these judgments cannot, and have not, altered prison life. Therefore, finally, the authors reflect upon whether this discourse of hope in judicial reform might deflect from other forms of resistance. The intervention of the courts persists on the discourse of rights, appearing to limit the right to punishment and thus ‘legitimating’ the prison, while at the same time being incapable of altering the conditions that punish bodies. 

  1. Ashley Rubin, Early US Prison History Beyond Rothman: Revisiting The Discovery of the Asylum, 15 Ann. Rev. of L. & Soc. Sci. 137 (2019).
  2. Mary Gibson, Global Perspectives on the Birth of the Prison, 116 Am. Hist. Rev. 1040, 1051 (2011).
  3. Carlos Aguirre, Cárcel y Sociedades en America Latina: 1800-1940, in 209 Historia social urbana. Espacios y flujos (Eduardo Kingman Garcés ed., 2009).
  4. Randall McGowen, The Well Ordered Prison: England, 1780-1865, in The Oxford History of The Prison (Norval Morris & David J. Rothamn eds., 1995), available at WorldCat.
Cite as: Elena Larrauri, Decolonizing Criminology and Its Relevance to Understand the Birth of the Prison in Latin America., JOTWELL (December 2, 2021) (reviewing Libardo José Ariza and Fernando León Tamayo Arboleda, El cuerpo de los condenados. Cárcel y violencia en América Latina (The Body of the Convicted. Prisons and Violence in Latin America), 73 Revista de Estudios Sociales 83 (2020)), https://crim.jotwell.com/decolonizing-criminology-and-its-relevance-to-understand-the-birth-of-the-prison-in-latin-america/.

Debunking the Myth of Democratized Algorithms in Criminal Administration

Ngozi Okidegbe, The Democratizing Potential of Algorithms?, 53 Conn. L. Rev. __ (forthcoming, 2021).

Algorithmic risk assessments, offered as a means to improve decision-making by standardizing the prediction of an individual’s future behavior, present myriad challenges in criminal administration. The tools are inscrutable. The tools are discriminatory. What is to be done? One popular solution is public participation in the design and adoption of actuarial risk assessments. Though not a panacea, jurisdictions across the country – from New York City to Sacramento – are passing or considering laws that require public oversight in the adoption of actuarial risk assessments.

In her article, The Democratizing Potential of Algorithms?, forthcoming in the Connecticut Law Review, Ngozi Okidegbe challenges the assumption that these kinds of initiatives can resolve one of the most deep-seated critiques of pretrial algorithms – their racialized effect on marginalized people disproportionately subject to the carceral state. To the contrary, she argues that such efforts threaten to exacerbate the problem. Because her article questions the compatibility of the algorithmic project with racial justice in a novel way, it is a must read for scholars interested in criminal legal reforms.

While actuarial risk assessments are proliferating throughout criminal administration, particular enthusiasm and momentum exists to adopt these tools in the pretrial bail context. Here, the tools tend to predict the likelihood of an individual failing to appear for court or engaging in crime in the future based on statistical analyses of large datasets. This information ostensibly indicates for judges which defendants should be released before trial and which ones should be subject to more intense forms of state surveillance, whether in jail or not. As states and localities confront the shortcomings of cash bail practices, law and policymakers are shifting toward “pretrial algorithmic governance” by institutionalizing algorithmic risk assessments as a key part of the process.

Yet these tools have been plagued with critiques of their racialized effects, a point that Okidegbe unpacks as layered. She identifies three levels of exclusion specific to marginalized black and brown communities that occur with the shift toward pretrial algorithmic governance. First, marginalized communities most impacted by pretrial detention are largely excluded from the algorithmic construction process. This can lead to the creation of particularly harmful algorithms for that community. Second, pretrial algorithmic governance entrenches marginalized communities’ exclusion from pretrial governance just as effective bottom-up strategies to combat the harms of cash bail detention are spreading. The expansion of actuarial risk assessments in lieu of that flawed practice repositions the most impacted marginalized communities as outside the scope of political influence over pretrial decision-making. Finally, pretrial algorithmic governance perpetuates the adverse effects of the criminal legal system on the ability of system-involved people to realize full participation in a democratic society. By reproducing exclusion in governance, pretrial algorithms threaten to exacerbate the political, social, and economic costs of unnecessary carceral supervision experienced by the most marginalized.

In light of the particular harm pretrial algorithmic governance poses for marginalized communities, Okidegbe considers popular public participation “solutions” to this governance problem. These include focus groups, public hearings, and appointed citizen boards, all of which could provide “ex-post input” but do not retain power over first order questions like whether to adopt a tool at all. Such interventions, she argues, do not resolve the particular harm to marginalized populations because they are not “power-shifting” approaches by design. Indeed, those in power can use such symbolic gestures to make pretrial algorithmic governance appear legitimate without redistributing power to marginalized communities, which creates another kind of harm.

Yet power-shifting approaches are feasible, and here is where Okidegbe’s work shines. She argues that localities could create bail reform commissions that intentionally pursue communal involvement. These commissions would need power to make key decisions in the adoption, implementation, and oversight of pretrial algorithms. The commissions would have to be populated with representatives from the most impacted communities, meaning Black individuals with some direct connection to the experience of incarceration or crime. Moreover, the commission would have to be designed to prevent power differentials between technocrats and “marginalized community commissioners.” If these design features were incorporated into pretrial algorithmic governance, then perhaps the algorithms would improve by “mitigating negative externalities associated with the imposition of incarceration on low income communities.” Regardless, it would transform pretrial governance into a space of deep democratization. This would redress the exclusion and political estrangement facilitated by the expansion of the carceral state.

Okidegbe anticipates great resistance to her proposal, so she spends a fair amount of time engaging with various objections. Critics of the democratizing criminal law scholarship may reject her proposal because such layperson involvement reflects “penal populism” that actuarial risk assessments are imagined to combat. Algorithmic reformers may resist these governance changes because it could produce algorithms not tightly tethered to their technical conception of accuracy. Judges may resist using tools built by community members. Marginalized communities may reject her proposal because it contradicts tenets of individual sentencing.

The resistance really makes the point of the paper. After all, if so many people would reject such deep democratization, then algorithmic governance is not compatible with a racial justice agenda. Now, many would say they never committed to a racial justice agenda by embracing actuarial risk assessments. That may well be true. But if that is the case, we must release ourselves of the assumption that this way has to be the way to address racialized mass incarceration. There are other ways to reduce incarceration, many of which those most affected by the carceral state have already begun to imagine. The real question Okidegbe’s contribution raises, then, does not concern whether algorithms can be democratized. It’s why we as a society are not willing to embrace those other possibilities.

Cite as: Jessica M. Eaglin, Debunking the Myth of Democratized Algorithms in Criminal Administration, JOTWELL (November 5, 2021) (reviewing Ngozi Okidegbe, The Democratizing Potential of Algorithms?, 53 Conn. L. Rev. __ (forthcoming, 2021)), https://crim.jotwell.com/debunking-the-myth-of-democratized-algorithms-in-criminal-administration/.

The Fourth Amendment’s Forgotten Free-Speech Dimensions

Karen Pita Loor, The Expressive Fourth Amendment, 94 S. Calif. L. Rev. __ (forthcoming, 2021), available on SSRN.

For over a year, protests and police brutality have been at the forefront of the public mind. In the summer of 2020, people were horrified by the images of officers arriving in armored bearcats, donning military battle gear, lodging projectiles of banned chemical weapons at peaceful Black Lives Matter protesters and walls of moms, and even engaging in dictatorship-style “disappearances.” Those protests, 25 million strong and admirably nonviolent, were themselves a reaction to the police brutality which took George Floyd’s life and was captured in a wrenching viral video. Last summer, there was a clear right-left divide on the desirability and propriety of heavy-handed protest policing tactics. The violent images moved many on the left to call for the defunding, disarming, and even dismantling of police forces. But many on the right felt police were entirely too restrained and offered as evidence the Seattle “CHOP” zone—the apotheosis of anarchic dystopia for conservatives. Then came 1/6 and the storming of the U.S. Capitol, and it was liberals decrying the police’s restraint in handling the pro-Trump rally-turned-riot.

For decades, scholars of policing and criminal procedure have wrestled with the issue of police use of force against protesters. In recent years, and especially after the Ferguson protests, there has been a virtual consensus among legal scholars that the Fourth Amendment use-of-force framework established in Graham v. Connor is entirely too permissive of police violence against protesters—and everyone else. Experts have called for doctrinal reforms ranging from altering Graham’s test for excessiveness to eliminating the qualified immunity doctrine. Also since Ferguson, a number of scholars have weighed in on the First Amendment implications of protest policing, arguing that police management tactics were not mere time, place, and manner restrictions, but serious infringements on free speech. For the most part, these Fourth and First Amendment critiques of protest policing have been siloed: either reform Fourth Amendment law to make it harder for police to use force on anyone or broaden First Amendment speech protections for protesters. In The Expressive Fourth Amendment, Professor Karen Pita Loor offers an important, novel intervention to the ongoing discussions of protest policing.

Loor draws on legal history and constitutional jurisprudence to argue that a policed person’s engagement in speech activities should factor into not just First Amendment analysis but also Fourth Amendment use-of-force analysis. Coining the term “the expressive Fourth Amendment,” she makes the case that substantive speech concerns lay at the very heart of the Constitution’s prohibition of “unreasonable search and seizure.” After outlining current protest policing litigation and how judges apply the Graham test, Loor turns to history. She writes “The very concept of the Fourth Amendment derives in part not just from a concern of government intrusion, but of the power of that intrusion to quell political thought. Freedom of expression was very much in the framers’ minds when constructing these first ten amendments, and its protection was encapsulated within the First Amendment and the Fourth Amendment.”

The article’s fascinating historical discussion begins decades before the Bill of Rights with a British sedition case against a newspaper critical of King George III, The North Briton. Because the publishers were unknown, the crown issued a number of general warrants to discover the culprits. These warrants presaged widespread and invasive searches of people tangentially related to the paper. The North Briton case ultimately led to the ban on general warrants and greatly influenced the U.S. Constitution’s framers. Later, the North Briton case informed the Supreme Court’s Fourth Amendment “papers” jurisprudence. In this line of cases, Justice Douglas asserted that “[t]he Court misreads history when it relates the Fourth Amendment primarily to searches for evidence to be used in criminal prosecutions. . . . [I]t was the search for the nonconformist that led British officials to ransack private homes.” Examining the papers cases and a number of other Supreme Court opinions on the policing of expressive conduct, Loor brings to light a principle that has been all but ignored in today’s use-of-force cases: Courts determining the reasonableness of police force must “examine what is ‘unreasonable’ in light of freedom of expression” and impose a “higher hurdle” when seizures implicate expression, as the Court stated in Roaden v. Kentucky.

Loor then examines how the framework of reasonableness “in light of freedom of expression” alters the Graham analysis in protest cases. Graham already directs courts to take into account the policed person’s underlying activity—violent felony, misdemeanor, unlawful gathering, etc. The expressive Fourth Amendment framework would add to this analysis whether the underlying activity was also speech related. Now, one may query whether courts should distinguish between unruly protestors and, say, an unruly gathering of pandemic-fatigued partiers on the streets Boulder, CO or Ocean Drive. Loor’s answer, drawing on the Supreme Court cases, is “yes.” Protest policing involves a different state-versus-individual interests calculus because it implicates “an additional and countervailing public interest in ensuring the broad exercise of First Amendment freedoms,” in Justice Brennan’s words.

Loor highlights the Court’s admonition that constitutional protections should be most robust when the risk of police abuse is high. One cannot imagine a higher risk of excessive force than during a protest that condemns the police. By contrast, the police were surprisingly unprepared and restrained during the 1/6 insurrection. This, the author argues, fits with the “data . . . that far-right activists have received a much more restrained, and at times even friendly, reception by law enforcement” and ultimately demonstrates the need to ensure that protest policing is itself content neutral. The article concludes in a novel fashion by offering a rewritten judgment. Loor reimagines White v. Jackson, an Eighth Circuit case involving police brutality against a protester, creating something of a template for applying the expressive Fourth Amendment framework.

In sum, this article has the potential to affect a doctrinal paradigm shift in the analysis of protest policing. I hope it will receive the attention it deserves and move judges to recognize in their Fourth Amendment analyses the incontrovertible principle that they claim to venerate: protesting is not a crime.

Cite as: Aya Gruber, The Fourth Amendment’s Forgotten Free-Speech Dimensions, JOTWELL (October 7, 2021) (reviewing Karen Pita Loor, The Expressive Fourth Amendment, 94 S. Calif. L. Rev. __ (forthcoming, 2021), available on SSRN), https://crim.jotwell.com/the-fourth-amendments-forgotten-free-speech-dimensions/.

The Costs of Privacy

Most scholarship about the impact of technology on policing has been of the sky-is-falling variety. The typical author recites a litany of technological advances, points out how those advances have made policing much more intrusive and pervasive, and then calls for a warrant requirement, some version of “privacy by design,” or perhaps even a prohibition on whatever surveillance technique is at issue. Maintenance of privacy is the main, if the not the dominant, goal.

In Smart Surveillance, Ric Simmons takes a completely different view. Adopting a cost-benefit analysis, he embraces technology that can make policing more efficient. The common scholarly refrain is that maximum Fourth Amendment protection must be imposed whenever technology gives the police a leg up—whenever, as the Supreme Court’s opinion in Carpenter v. United States put it when explaining why a warrant is required to obtain cell site tracking information, new technology makes enforcement efforts “remarkably easy, cheap, and efficient compared to traditional investigative tools.” To Professor Simmons, this stance makes no sense. Such thinking, he says, “turns the cost-benefit analysis on its head by seeking to deter some of the most productive searches available to law enforcement.” (P. 121.)

Professor Simmons plays this idea out in four different settings: reactive searches, binary searches, mosaic searches, and hyper-intrusive searches. Reactive searches are those that use technology to counteract privacy-enhancing technology, such as encryption, high-powered heat lamps (of the type the defendant in Kyllo v. United States used to grow marijuana indoors), and third-party services that enable would-be criminals to carry out their activities under cover of the Internet. Binary searches rely on technology that can discover criminal activity and nothing else, as the Supreme Court has assumed drug-sniffing dogs can do. Mosaic searches are those that use technology to accumulate information from numerous public sources much more cheaply and quickly than through traditional means—for instance, cell phone tracking rather than tailing, or buying information from data brokers rather than tromping from one records office to another. In contrast to reactive searches, hyper-intrusive searches “over-react” to privacy enhancing developments by, for instance, enabling continuous surveillance of phone and email conversations, covert surveillance of the home, and interceptions of computer and phone communications.

In each of these scenarios, Professor Simmons argues that courts need to do a much better job gauging the security benefits and the privacy costs. Ideally, this benefit-cost analysis would be carried out in as quantified a manner as possible. For instance, on the benefits side, Professor Simmons argues that big data can help generate statistics on the efficacy of various techniques—ranging from hit rates for stops and frisks in “high crime” neighborhoods to arrest rates resulting from CCTV cameras and cellphone tracking. On the cost side, he envisions greater use of surveys measuring community views of intrusiveness as a means of calibrating privacy interests.

This methodology is then applied throughout the book. Although he does not reach definitive conclusions on the matter, Professor Simmons suggests that, based on the available data, the stop and frisk practices of many cities cannot be justified, but that predictive policing using algorithms could be, at least when they incorporate or are combined with conduct that gives the police some reason to believe criminal activity is afoot. Additional possible benefits of this data-driven policing—assuming the decision-making algorithms are disclosed and used even-handedly—include more transparent decision-making, a redistribution of privacy toward the disadvantaged, and less racially-based policing.

More confidently, Professor Simmons argues that binary searches will virtually always be justified on a cost-benefit rationale, as long as the technology is accurate most of the time (and thus does not generate a large number of false positives) and does not require suspicionless seizures to operate. He also suggests that some reactive searches (e.g. thermal imaging of the home) and mosaic searches (e.g., tracking of public travels) might be justified on much less than probable cause, give their efficiency and their relative unintrusiveness (compared to, for instance, full searches of the home). Hyper-intrusive searches, on the other hand, might require, as Title III does for electronic surveillance, not only ex ante review and probable cause, but a showing that no less intrusive technique will be productive. However, in contrast to much academic commentary, Professor Simmons agrees with Maryland v. King’s conclusion that suspicionless collection of DNA is permissible, and even gestures toward approval of a universal DNA database, given the ability of junk DNA to identify perpetrators without revealing other intimate facts.

Leaving no controversy untouched, Professor Simmons also argues in favor of the third party doctrine, which allows police to obtain data in the hands of banks, phone companies, Internet service providers and the like with a mere subpoena, and sometimes a simple request. If Carpenter is any guide, at least six justices, along with most Fourth Amendment scholars, have serious reservations about the doctrine. But Professor Simmons points out that the personal data maintained by modern companies can be extremely useful to law enforcement and that “millions of individuals already knowingly—and at times, willingly—share this information with third-party companies.” (P. 154.) To Professor Simmons, these high security benefits and low privacy costs weigh in favor of the current regime. He also notes that, increasingly in the past decade, some third parties (e.g., Google, Apple and some DNA companies) have been willing for their own business-related purposes to resist law enforcement investigations, a development that allows those individuals who are concerned about privacy to pay for it.

I do not agree with every point made in this book. But Professor Simmons has provided a very useful counter-point to much of the scholarship about police use of surveillance techniques. His insights cannot be ignored as we race headlong into a new era of policing.

Cite as: Christopher Slobogin, The Costs of Privacy, JOTWELL (September 6, 2021) (reviewing Ric Simmons, Smart Surveillance: How to Interpret the Fourth Amendment in the Twenty-First Century (2019)), https://crim.jotwell.com/the-costs-of-privacy/.

Asking the Right Questions about Police—and Scholarly—Expertise

Anna Lvovsky, Rethinking Police Expertise, 131 Yale LJ. __ (forthcoming 2021), available at SSRN.

Recently, an outstanding anonymized article and exemplar of a law journal student editor’s peer review request landed in my inbox. This reflection covers both the article and the peer review request from the Yale Law Journal because they capture salutary trends in legal scholarship. The article is Police Expertise, which I learned only after submitting my peer review, is by Professor Anna Lvovsky. It tackles an important issue for practice as well as criminal procedure scholarship—deference to asserted police expertise. The peer review request asked astute questions, three of which should be asked more often for such scholarship: (1) whether the author’s account accurately tracks actual practice on the ground, (2) whether the key theoretical labels and distinctions make coherent useful sense, and (3) whether the theorizing is likely to have ramifications in practice, not just scholarship.1

In this time of an acute crisis of trust in law enforcement, the topic of expertise is important—and apparently hot. Within about a week, I received peer review requests from two different leading journals with two different anonymized articles about the issue. The timing was fortuitous—it was about the time I had to select excellent scholarship to feature for this Jot. Professor Lvovsky’s article illuminates this issue, which has sparked debates in scholarship and practice, from a fresh perspective, and with outstanding research that goes well beyond easily accessible, published sources. Lvovsky’s Police Expertise, now forthcoming in the Yale Law Journal, examines the seemingly counterintuitive emphasis on police expertise by the defense rather than the prosecution, and to attack rather than to seek judicial deference to police claims.

The key insight of the article is to shift to the understanding of police expertise. Lvovksy argues that the police are strategic experts, and this kind of expertise can actually undermine the basis for deference to police claims. Lvovsky differentiates between what she terms “technological expertise” and expertise as a “professional virtue.” Expertise as a professional virtue has a normative dimension that encourages institutional deference to the police. In contrast, technological expertise is about police proficiency at certain strategies and tactics, such as trickery to elicit incriminating statements. Lvovsky illuminates how the technological expertise of the police should be cause for caution by the courts in crediting certain law enforcement claims, rather than a basis for the customary deference. For example, police expertise in tricking vulnerable suspects can be a basis for giving more credence to defendants’ claims, potentially addressing the major imbalance of power in police-said, defendant-said credibility contests.

The question posed by the student editors in their review request is one that I hope will be asked by all editors considering publishing a criminal justice piece that advertises some theory or reform of what happens in the system.  Does the polished academic theory and resulting proposal accurately understand actual practice on the ground? Especially in the criminal justice context, a lot of practices that structure the system never make it into published case reports or other forms of laws on the book. To truly understand the phenomenon about which a scholar hopes to opine, the scholar must have actual practice experience—or do some excellent fieldwork or archival work, or some combination of the above. Lvovsky’s piece is compellingly attentive to, and informed by, the pattern of arguments one regularly hears as an experienced attorney with frequent court experience.

Lvovsky’s outstanding research collects common defense arguments before trial judges in motions to suppress and other motions practices. An outstanding historian, she brings her large toolkit of research talent to a contemporary important phenomenon. Reading the article’s quotations of popular lines of defense arguments regarding alleged entrapment, coercion of incriminating statements, and improper use of force brings back memories of hundreds of hours spent in courtrooms doing motions practices and hearing motions while waiting for cases to be called.

It is a pleasure to read a piece that looks beyond appellate opinions to the practices of motions hearings.  Lvovsky illuminates counter-intuitive uses of police expertise by the defense—which is fascinating in itself. Heightening the piece’s impact, Lvovsky explores the implications of these defensive use of police expertise for the broader question of how factfinders should evaluate police expertise. Rather than making a uniform case for deference, the nature of police expertise sometimes argues in favor of judicial caution or suspicion toward law enforcement claims.

A surprising upside of being a peer reviewer in the student-edited law review sphere, in contrast to social sciences journals, is that the astonishingly short deadlines compel you to read the piece nearly immediately. If you agree, you will read the piece at midnight when all the paying work is done, and the other members of the household are soundly asleep. You do this for a combination of reasons: karma, gratitude to amazing student editors running the mind-blowingly massive law scholarship system, and—perhaps most of all—the hope that you will read something outstanding and get to write a glowing review. The best part of peer review is when you get to read a great piece before the rest of the world, and to share your excitement about it.

Another hidden upside is seeing law student editors—the subject of angsting, consternation and even grief in the legal blogosphere—asking important questions about the real-world relevance of legal scholarship that should be asked more often by the scholarly experts.

  1. I took the liberty of paraphrasing questions from the student editor, the excellent Jackson B. Skeen. I am very grateful to the editors at the Yale Law Journal for the permission to blog about Professor Lvovsky’s article.
Cite as: Mary Fan, Asking the Right Questions about Police—and Scholarly—Expertise, JOTWELL (July 26, 2021) (reviewing Anna Lvovsky, Rethinking Police Expertise, 131 Yale LJ. __ (forthcoming 2021), available at SSRN), https://crim.jotwell.com/asking-the-right-questions-about-police-and-scholarly-expertise/.

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