The Journal of Things We Like (Lots)
Select Page

Reconciling Risk and Equality

Deborah Hellman, Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning, 98 Wash. L. Rev. __ (forthcoming, 2020), available at SSRN.

States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act,1 which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of low risk individuals.

These assumptions about the benefits of risk assessment tools are all contested. But critics also argue that, even if these instruments improve overall accuracy, they are constitutionally suspect. While no instrument explicitly uses race as a “risk factor” (which in any event is probably barred by the Supreme Court’s decision in Buck v. Davis2), several do incorporate sex (with maleness increasing the risk score) and many rely on factors that are highly correlated with race or socio-economic status, which is said to violate equal protection principles.3

In Sex, Causation and Algorithms, Deborah Hellman, a philosopher and constitutional law scholar, provides some provocative food for thought on this issue. The article focuses on the Supreme Court’s Fourteenth Amendment caselaw on sex as a classification. But the approach to equal protection that Hellman develops could also provide a response to many of the other discrimination and disparate impact challenges aimed at risk assessment instruments.

Hellman proposes what she calls an “anti-compounding injustice” theory of equal protection, which presumptively prohibits use of sex as a classification when, but only when, the classification would “compound” sex-based injustice. For instance, while she agrees with the Supreme Court’s decision in Frontiero v. Richardson,4 which held that the military may not use sex as a proxy for whether a member of the service is a financially dependent spouse, she would adopt a different rationale. The Court looked at the “fit” between sex and spousal dependency (which, at the time, was fairly good, and thus did not obviously support the Court’s conclusion). Hellman would instead look at whether the fact that women tend to be the dependent spouse was the result of sex-based injustice (which it was, given society’s longtime privileging of male domination). Hellman’s analysis of United States v. Virginia5 is similar. While the Court in that case held that denying women admission to a military college would reaffirm demeaning stereotypes even if only one woman had the “will and capacity” to enter, Hellman points out that this type of reasoning is, in effect, strict scrutiny, not the more relaxed intermediate scrutiny supposedly applicable in sex cases. Hellman argues that the better rationale for the case is that preventing women from entering the academy would be compounding the sex-based injustice that has made women less likely to be willing and qualified to enter such schools.

Hellman contends that her anti-compounding injustice theory is consistent with most of the Court’s cases, at the same time it is less confusing than the Court’s current focus on whether a sex classification closely fits the state’s goals, exacerbates stereotypes, or reflects “real differences” between the sexes. She also argues that her approach is more morally compelling. She is persuasive on both points. But what does this have to do with risk algorithms?

Hellman starts the paper with a reference to Wisconsin v. Loomis,6 where the defendant was sentenced to six years after the trial court considered testimony based on the COMPAS, a risk algorithm. Loomis argued that the use of the COMPAS violated due process, because it considers sex as a risk factor. The Wisconsin Supreme Court demurred, noting that “any risk assessment tool which fails to differentiate between men and women will misclassify both genders;” in other words, as an empirical matter, if sex is not taken into account, a woman whose risk factors are otherwise identical to a man’s will be rated as higher risk than she actually is. While Loomis lost his due process argument on accuracy grounds, he might well have won had he framed his challenge in equal protection terms, because the algorithm’s explicit consideration of sex violates the Supreme Court’s current anti-classification approach to the Fourteenth Amendment.

Hellman suggests that result would be wrong. Taking sex out of the algorithm would harm women, which would be compounding injustice, because “the bulk of gender-based injustice has harmed women.” Although Hellman doesn’t explicitly say so, she likewise seems to disagree with the outcome of Craig v. Boren,7 where the Court struck down a statute that set the drinking age at 21 for males and 18 for females, despite evidence that men were 10 times more likely to drink and drive than women. Her approach thus seems akin to anti-subordination theory.

That observation raises the question of how Hellman would treat disparate impact challenges against algorithms. Many algorithms use risk factors that correlate with race, including employment status, location, and criminal history, the latter the predominant risk factor in every risk algorithm. Current equal protection doctrine would consider such correlations irrelevant unless intent to discriminate can be shown. While Hellman does not directly address this issue, she suggests that anti-compounding theory would approach these cases differently and could even be “revisionary.” She poses a hypothetical in which the state enhances the sentence of an offender who was abused as a child because an algorithm indicates that child abuse is a risk factor, and argues that, regardless of whether discriminatory intent is present, her anti-compounding injustice theory would call such an algorithm into question. One might make the same argument against including a risk factor such as unemployment or criminal history on a risk tool if it correlates with race, given the likelihood that unemployment and criminal offending are higher among people of color because of race-based injustice.

However, Hellman also says this: “Compounding injustice is not a decisive reason to avoid an action in all contexts, nor is the duty to avoid such compounding injustice a duty that trumps everything else,” and adds, in connection with the victimization hypothetical, “[t]he interests of other people – those whom [the individual] may harm if he is released – count as well.” In other words, as is true under traditional equal protection theory, a strong state interest can override compounded injustice. As applied to risk algorithms, this caveat might mean that use of a risk factor correlated with race is permissible if it is a robust predictor. That may not be true of unemployment status, but it is certainly true of criminal history.

Risk algorithms surface a real tension between traditional equal protection law and the goal of ensuring that predictions are as accurate as possible (a tension that exists, by the way, whether prediction is based on algorithms or on subjective judgments, which rely on the same factors as algorithms, only more opaquely so). Hellman’s anti-compounding theory may help courts and criminal justice scholars figure out how that tension should be resolved.

  1. 18 U.S.C. § 3261 (2018).
  2. Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan. L. Rev. 803 (2014).
  3. 137 S.Ct.. 759 (2017).
  4. 411 U.S. 677 (1973).
  5. 518 U.S. 515 (1996).
  6. 881 N.W.2d 749 (Wisc. 2016).
  7. 429 U.S. 190 (1976).
Cite as: Christopher Slobogin, Reconciling Risk and Equality, JOTWELL (July 2, 2020) (reviewing Deborah Hellman, Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning, 98 Wash. L. Rev. __ (forthcoming, 2020), available at SSRN), https://crim.jotwell.com/reconciling-risk-and-equality/.

Does Video Evidence Make A Difference in Excessive Force Cases?

In happier times, shortly before the vise of COVID-19 descended, I joined a conference room full of veteran defense attorneys from New Jersey and New York. The topic for the training convened by the National Association of Criminal Defense Attorneys and the Federal Defenders was missing body camera videos.  My co-panelist Benjamin West, a brilliant civil legal aid attorney, writer, and public defender, and the defense attorneys in the audience, had powerful accounts of battling for videos of contested police encounters that should have been available from the police but were missing, partial, or not disclosed.

An article I carried on the flight to share with the defenders was Mitch Zamoff’s study of the impact of police body camera evidence in excessive force cases. Unusual bedfellows, including civil rights activists, bereaved parents, and police leaders, drew together to call for police-worn body cameras. One of their hopes—and hypotheses in need of testing—was that video would provide powerful evidence in excessive force cases. Aiming to investigate that hypothesis, Zamoff’s study found another related, important issue. Nearly a third of body camera recordings in the cases he collected failed to capture the entire contested encounter. Summary judgment in favor of defendants was more likely to be granted if a complete recording is available than if there was no video available at all. The effect was the opposite where only a partial recording was available—plaintiffs were more likely to survive summary judgment than if there was no recording at all. Recordings matter—and the effect is modified by whether they are partial or complete.

Zamoff collected all published summary judgment decisions between 2015 and 2018 in the federal courts on excessive force claims brought under 42 U.S.C. § 1983 in which there was police-worn body camera evidence. Excluding pro se prisoner petitions challenging events during incarceration, Zamoff gathered 66 cases involving body camera evidence. He identified a pool more than a thousand-fold larger of summary judgment decisions from which he could draw a comparison group of § 1983 cases alleging excessive force with no body camera evidence. He ended up selecting 66 cases from that pool, matching his no-recording controls and recordings-available cases by judicial district.

Delving into his dataset, Zamoff made an important discovery: nearly a third of his body camera cases involved incomplete recordings. Various reasons were proffered for incomplete video, such as officers not activating the camera in time, officers arriving at the scene at various times, field of vision being obstructed, and poor video quality.

Zamoff found that summary judgment motions were granted in just 31.8% of cases with partial body camera evidence. In contrast, where there was complete body camera evidence, summary judgment was granted in 77.1% of cases. In his comparison group where there was no recording at all, judges granted summary judgment about 53% of the time. Zamoff ran chi-square tests and found significant associations between the likelihood of a grant of summary judgment and having partial or complete video.

If body camera cases are not stratified by whether video is partial or complete, then the impact of complete body camera recordings are obscured by effect modification in partial video cases. In other words, if we crudely compared cases where there was no recording to those with a recording, we might erroneously conclude there was no impact because we would be lumping together the partial video cases where judges are less likely to grant summary judgment with the complete video cases where judges are more likely to grant summary judgment.

Zamoff concludes that judges are more comfortable dismissing excessive force claims on summary judgment where the judge can see the whole contested encounter on video for themselves. In contrast, judicial willingness to let a case go to a jury appears heightened if a recording is only partial.  Zamoff posits that judges might not give officer testimony the same weight if there is a partial recording than if there is no recording at all and that partial video may just magnify the factual disputes that are the jury’s province to decide. Commentators who predicted that body camera evidence recording the officer’s view would benefit law enforcement defendants appear correct, but only where the recording is complete rather than partial.

Zamoff’s findings bring to mind another debate among commentators after the U.S. Supreme Court decided Scott v. Harris, an excessive force case with a dash camera recording. Prominent commentators, including Erwin Chemerinsky and Dan Kahan, contended that the majority of justices succumbed to the allure of video and the temptation to decide a matter in lieu of the assigned fact-finder, the jury. Perhaps where video is literally partial—incomplete—judges are more alert to how videos are not merely transparent, unbiased windows into what happened. In contrast, complete video may lull judges into thinking they have the full story, missing the subtle framing effects, single-perspective, and other hidden partiality in video.

Zamoff’s study is a laudable first foray into an important empirical question. He investigates issues about which more empirical research would be illuminating. One can always critique methods, such as the construction of the comparison group, multiple comparisons issues, and whether investigation into effect modification was pre-specified, and so forth. The bigger picture is that there is much fertile ground to explore.  Thanks to Zamoff’s work, we know that future inquiries should be sensitive to effect modification by partial or complete video—perhaps even by reason for partial video, as the dataset of cases with body camera evidence grows larger over time. From the experience of litigators in the trenches, the issue of missing or partial video—and the larger question of whether having video matters, and how—are practically important and worthy of further investigation joining Zamoff’s work.

Cite as: Mary Fan, Does Video Evidence Make A Difference in Excessive Force Cases?, JOTWELL (June 4, 2020) (reviewing Mitch Zamoff, Assessing the Impact of Police Body Camera Evidence on the Litigation of Excessive Force Cases, 54 Ga. L. Rev. 1 (2019)), https://crim.jotwell.com/does-video-evidence-make-a-difference-in-excessive-force-cases/.

The New Rap Sheet: Prosecuting Crimes, Chilling Free Speech

Erik Nielson & Andrea L. Dennis, Rap on Trial: Race, Lyrics, and Guilt in America (2019).

With the Fourth Amendment gone, eyes are on the First,
That’s why I’m spittin cyanide each and every verse

These lyrics from Paris’ 2003 album, Sonic Jihad, seemingly anticipate a future of curtailed free speech for African Americans. The growing practice of using rap lyrics against criminal defendants represents one way this is occurring in the United States today. In the song, the reference to the Fourth Amendment’s absence refers to policies that include aggressive stop and frisk campaigns, the proliferation of “no-knock” warrants, and police shootings of Blacks, among other afflictions. Simply living in a “high crime” area—what is often the hoods, ghettos, and barrios of the United States—is a factor that works to the detriment of the defendant when it comes to police establishing reasonable suspicion to stop, and possibly frisk, an individual. For Paris, this gutting of the Fourth Amendment has cleared space on the chopping block for free speech.

Rap on Trial: Race, Lyrics, and Guilt in America, by Erik Nielson and Andrea L. Dennis, explains how prosecutors use rap lyrics against criminal defendants at trials and sentencings. The book highlights a modern legal tactic that reads like a magic trick. In the hocus-pocus, a prosecutor introduces an author’s poetry into evidence against the author himself, in order to disappear the author into the criminal justice complex. Nielson and Dennis spill the secrets behind this trick, arguing that this “evidence” should be excluded under evidentiary rules. Using lyrics as evidence in this way is bewildering. It effectively treats the defendant’s lyrics as a biography for whatever purpose the prosecution needs. Even more mystifying is that a product of free speech, rap, is being used to curtail free speech itself, which has stark racial implications since the tactic focuses almost exclusively on minority defendants and a predominantly Black art form.

Generally speaking, this book is an interdisciplinary venture that may be situated in the area of studies known as “hip hop and the law.” As such, the book displays sophisticated expertise in both hip-hop culture and the substantive criminal law and evidence law. The foreword by hip-hop artist Killer Mike adds a dose of authenticity and reality, particularly since what is at stake here is not some theoretical musing—for him it is personal. As an artist and activist, he too risks suffering legal consequences for his own writings.

Scholars working at the intersection of hip hop and the law have underscored a number of issues. On the music side, the rise of electronic sampling in hip hop has spawned copyright issues, litigation, and developments in law and policy, including changes to the way artists create music. Copyright issues have also arisen in the context of D.J. mixtapes and their distribution by hip-hop D.J.s. Moreover, hip-hop artists have had other run ins with the “law” and have had an uphill battle to speak freely. For example, when the group N.W.A. performed on tour, police were notorious for shutting down the group’s shows if they performed “Fuck the Police.” A few years later, police and their unions would fiercely lobby to have Body Count’s 1992 release, “Cop Killer,” removed from record shelves.

The book outlines the various ways that prosecutors use rap lyrics in criminal proceedings. One tactic is to treat the writing as a diary, which is when prosecutors treat a defendant’s lyrics as “rhymed confessions.” When the lyrics were written before the crime, prosecutors treat the lyrics as demonstrating the defendant’s state of mind about the crime and its commission, including motive, intent, and knowledge. Prosecutors have also introduced lyrics to demonstrate evidence of threats made by the defendant. These various strategies of using rap against defendants show a number of ways to exploit the lyrics. The authors give the reader a useful rubric for analyzing court cases described throughout the text. Moreover, they make clear that the treatment of rap as evidence of a threat is somewhat disingenuous, given the nature of hip-hop culture and its historical pedigree of battling and dissing.

This point highlights one of the book’s main strengths, the tracing of hip-hop history and how this cultural development helped to quell gang violence. In addition to the various elements that embody hip hop, the authors highlight the rap and musical aspects as critical, since these elements created novel arenas of musical and oratorical competition. This no-holds barred approach to art was a way of sublimating violent gang rivalry, substituting symbolic violence over real violence through modes of “battle.” In the music, rap offered a new space for artists, particularly young black artists, to experiment and express themselves freely—the good, bad, and ugly. And of course, it was a way to make money and possibly escape poverty.

By detailing the sociological importance of rap to black culture and the voice it gave to urban youth, the book provides an informed context for considering the malignant impacts of prosecutors using lyrics in criminal cases. Hip-hop music once may have been the ultimate space for freedom of expression. Today, however, that space is under attack like no other art form. “No matter that the music provides public commentary. No matter that punishing it, even indirectly will undoubtedly chill it. No matter that courts are not applying their same faulty logic to other art forms.” (P. 114.)

This book is laudable on other counts as well. In its treatment of these complex legal and sociological issues, the work shines with an engaging writing style that is accessible to a general audience. Its thorough research will be welcomed by academic audiences as well, including professional, graduate, and undergraduate students. Not only does this work expose the constitutional and evidentiary flaws in the way the law treats underclass defendants, it also demonstrates the limits of “free speech” for the underclass.

The work’s conclusion is plain and simple: rap lyrics have no place in criminal court. From this work’s perspective, the exclusion is necessary to neutralize the onslaught of aggressive prosecutors and questionable “experts” on gangs and rap lyrics who, together, tip the scales against defendants. Although the authors recognize the possibility of reform to these various problems piecemeal, a more effective and efficient solution would be to eliminate the use of lyrics altogether.

Among other avenues of redress, the authors propose rap shield rules: legislation that would protect free speech by banning the use of lyrics, videos, and other materials as evidence in criminal proceedings. They espouse expressive speech privileges: legislation that would limit the use of evidence that receives First Amendment protection. They also advocate for more rigorous judicial oversight, such that courts perform their actual function as gatekeeper of inadmissible evidence. Finally, the authors propose an abridged notion of nullification for jurors, such that jurors of a criminal case should refuse or nullify consideration of rap lyrics introduced in criminal court. (Pp. 157-60.)

This book is as fascinating as it is frustrating. In pointing out this legal double standard in the prosecution of ethnic minority defendants, the text likely leaves readers indignant about these prosecutorial practices and court laxity. This is especially true when considering that other musical genres—like country, rock, and death metal—are known for graphic and violent lyrics, yet prosecutors have focused nearly exclusive attention on rappers: “Within the criminal legal process, it has become apparent that rapper defendants are not considered legitimate artists and rap music does not merit the artistic recognition granted to other forms of art. This perspective helps courts justify weaker First Amendment protections.” (P. 114.)

Cite as: SpearIt, The New Rap Sheet: Prosecuting Crimes, Chilling Free Speech, JOTWELL (May 7, 2020) (reviewing Erik Nielson & Andrea L. Dennis, Rap on Trial: Race, Lyrics, and Guilt in America (2019)), https://crim.jotwell.com/the-new-rap-sheet-prosecuting-crimes-chilling-free-speech/.

Theorizing Mobility

Leanne Weber & Jude McCulloch, Penal Power and Border Control: Which Thesis? Sovereignty, Governmentality, or the Pre-emptive state?, 21 Punishment & Society 496 (2019).

With immigration and border control as issues dominating public and political discourse worldwide, it is no surprise that a lot of scholarship addresses these issues. Through various theoretical lenses, scholars across the globe are trying to make sense of the upsurge of nationalistic and punitive legal and policy measures that cater to keeping out the unwanted “other” who could threaten national security or the economy. A new field even seems to be emerging: that of Border Criminology. The field is bringing together criminologists, criminal justice scholars, legal sociologists, and many others working on matters of penal power and immigration control. Weber and McCulloch’s article demonstrates the diversity and the interdisciplinary nature of this emerging field. Ironically, it also illustrates the importance of theoretical integration and looking over disciplinary boundaries to understand the processes and practices of bordering.

In their article, Weber and McCulloch address three main theoretical lenses (to be further) explored by scholars of border criminology. They highlight how these three lenses aim to understand different aspects of immigration and border control, as well as how further integration of these lenses can lead to deeper knowledge of the dynamics and the dialectics of the how, why, and when of immigration and border management. The three lenses they address are: Juliet Stumpf’s “crimmigration” thesis (2006), Mary Bosworth and Mhairi Guild’s adaptation of the “new penology” perspective to the politics of border control (2008), and Susanne Krasmann’s critique of Gunther Jakobs’s “enemy penology” thesis (2007).

The crimmigration lens, according to the authors, accents the how of border control. The concept “crimmigration” sought to address the growing merger of crime control and migration control. As a result of this intertwinement, the immigration process has grown to resemble the criminal process, and the powers of immigration and criminal law enforcement agencies have become almost indistinguishable. Despite these developments, there has been no commensurate transfer of due process protections for individuals from the criminal sphere into the immigration sphere. By describing and analyzing the emergence of this new hybrid of rules and practices, the crimmigration thesis shines light on the mechanisms and processes of immigration and border control, while also drawing attention to the exclusionary effects of it.

In explaining the need to manage and control mobility, the new penology accents the why of border control. By illustrating how (in line with the governing through crime perspective) modern society increasingly addresses all sorts of social problems through the lens of migration and mobility, the new penology perspective shines light on the underlying socio-political and socio-cultural forces that drive the notion of increased migration and border management. Migration, mobility, and those who are “on the move” are framed as potential risks that need close monitoring, in order to avert any threats to national security and national identity.

The enemy penology, lastly, explains the when of border control. Using the language of risk (national security) and by speaking of the “War on Migration,” the adage, “all is fair in love and war,” seems to be explicitly applicable to migration and border control. By introducing all sorts of proactive and preventative measures, state control and penal power are used to identify potential “threats” in the earliest stage possible, even before crimes are committed or laws have been broken. The language and practice of risk assessment and profiling to identify the dangerous other is, therefore, part and parcel of these measures as well. A clear example of this would be the growing externalization of border control where migrants seeking to enter the European Union are already stopped and detained in so-called “third countries.”

Although the topic is not centrally highlighted by the three theoretical approaches, the authors also acknowledge the importance of looking at the multilayered (infra)structure of immigration in border control. The multilayered nature is visible as we see influences of both globalization and glocalization in issues of border control and the management of cross border mobilities. On the one hand, the “voice” and agenda of the (supra)national government is strong and influential. On the other hand, in applying the state perspective, local actors seem to play an important role as well, due to the dynamics of the local context where the measures are implemented—and thus felt most directly. Therefore, in order to answer more completely the how, why and when questions that are central to these analyses, the authors suggest the need to consider the dynamics between the variety of actors and organizations involved at the local, national, and supranational level, and to address the political struggles over values, agendas, and interpretations that result from these dynamics.

By bringing together the different theoretical lenses, the authors show how the penal power of the state at the border is expressed through coercive tools, including deportation, detention, and criminalization. Each of the lenses also consider the question of who is subject to exclusion. This reveals the need for border criminology to further, and more consistently, consider questions of race, citizenship, gender, and neo-colonial relations of power. While we do see some works in the field of border criminology addressing these matters, it is rather limited, especially when looking at non-U.S. and non-U.K. based scholarship. With nationalism and nativism on the rise all throughout the European continent in response to the so-called migration crisis, it seems fair to expect more critical race-oriented reflections on matters of migration and mobility from scholars studying that region.

In conceiving coercive border control as arising from similar sources of power as traditional punishment, the authors illustrate the increasingly porous boundaries between the civil, administrative, and criminal fields generally, and the particular pertinence of this development to the study of migration, borders, and “preventive” interventions.

The article is therefore an important read for anyone interested in matters of migration, bordering, and state control. It gives rise to a series of thought-provoking questions that deserve further theoretical and empirical exploration on the how, the when, the why, and also the who of immigration and border control.

Cite as: Maartje van der Woude, Theorizing Mobility, JOTWELL (April 8, 2020) (reviewing Leanne Weber & Jude McCulloch, Penal Power and Border Control: Which Thesis? Sovereignty, Governmentality, or the Pre-emptive state?, 21 Punishment & Society 496 (2019)), https://crim.jotwell.com/theorizing-mobility/.

Why Does Gun Control Work in Europe?

As a reminder, from Wikipedia: “The Sandy Hook Elementary School shooting occurred on December 14, 2012, in Newtown, Connecticut, United States, when 20-year-old Adam Lanza shot and killed 26 people, including 20 children between six and seven years old, and six adult staff members. Lanza committed suicide by shooting himself in the head. The incident remains the deadliest mass shooting at either a primary or secondary school in U.S. history. The shooting prompted renewed debate about gun control in the United States, including proposals to make the background-check system universal and for new federal and state gun legislation banning the sale and manufacture of certain types of semi-automatic firearms and magazines with capacity for more than ten rounds of ammunition.

Although Congress passed no new federal laws, several of the strongest gun-control states did pass new ones. This is what prompted Professor James Jacobs and Zoe Fuhr to ask what could be achieved by the passage of New York’s 2013 SAFE (Secure Ammunition and Firearms Enforcement) Act, which, according to New York Governor Andrew Cuomo, is  “the toughest gun control law in the nation.” The book traces—in a very lively way—how the SAFE Act was drafted, passed, and signed in thirty days without any compromises. It then analyzes what each of the dozen of the Act’s initiatives achieved. These initiatives include universal background checks, tighter bans on assault weapons and ammunition feeders (magazines), mandatory reporting requirements for mental health professionals who encounter patients who present substantial risks of violence, gun license forfeiture for persons subject to domestic violence restraining orders, license renewal every five years, and numerous criminal offense and sentence enhancements for regulatory violations and gun crimes.

But the authors’ case study concludes that not much, if anything, has been achieved because the SAFE Act has not been effectively implemented and its provisions are easy to evade. The authors warn that gun control laws, like most laws, are not self-executing. Jacobs and Fuhr write: “Gun control proposals are usually promoted as if they are self-executing and self-enforcing,” but they are not. (P. 3). The New York legislature failed to provide more than token funding to implement and enforce the law. And there is no state level agency responsible for implementing and enforcing the law. In exposing the chasm between law on the books and law in action, this “gun control book” makes an excellent contribution to  “sociology of law,” putting the reader in the mind of Murray Edelman and Stuart Scheingold.

Jacobs and Fuhr’s book provides a fascinating example of how gun control laws function to attract and energize political support. In effect, the SAFE Act is best understood as a “symbolic law,” not as a serious crime control initiative. As Franklin Zimring explains, in his Foreword to The Toughest Gun Control Law in the Nation, gun control laws are passed in blue (liberal Democrat) states, whereas red (conservative Republican) states pass laws reinforcing the rights of gun owners. Thus, where gun controls are easy to pass, they are often operationally redundant or marginal.

The Toughest Gun Control Law in the Nation led me to question why Europeans, such as myself, so easily believe that U.S. gun violence could be cured by passing more laws. In Spain, a would-be gun purchaser must obtain a license for a gun from the Guardia Civil. That involves stating a particular need, such as hunting, police work, or protection of self and property. The law is almost the same in New York, especially New York City. A New York City resident needs a license to possess a firearm and must pass a background check to purchase a firearm from a federally licensed dealer. And licensing authorities in both jurisdictions rarely approve applications. Few licenses are issued in Spain or New York City. But these regulatory controls can easily be avoided by purchasing a gun from a private party on the secondary market or on the black market. It is easy for a non-licensee to acquire a gun in New York. Maybe this is not so easy in Spain. If that is so, what accounts for this difference? How are European gun control laws effective in keeping guns out of the hands of dangerous persons? Probably the stringency of gun controls, and different cultures, explain the difference of the estimate of civilian firearms between Europe and the U.S.

In sum, The Toughest Gun Control Law in The Nation raises many challenging questions about the regulation of weapons and, more generally, about the promise and limits of law. Professor Jacobs’s and Fuhr’s research is a forerunner and raises relevant comparative research questions—When is gun control effective? What is the relation of guns with crimes? How active is the black market?—that European criminologists could find extremely important to research.

Cite as: Elena Larrauri, Why Does Gun Control Work in Europe?, JOTWELL (March 6, 2020) (reviewing James B. Jacobs & Zoe Fuhr, The Toughest Gun Control Law in The Nation: The Unfulfilled Promise of New York's SAFE Act (2019)), https://crim.jotwell.com/why-does-gun-control-work-in-europe/.

Do Abolitionism and Constitutionalism Mix?

Dorothy Roberts, Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019).

Dorothy Roberts’s Abolition Constitutionalism is a monumental achievement and certain to become required reading on prison abolition. With little hesitation in calling the U.S. prison state an extension of slavery, the article is thoroughly and unapologetically abolitionist. It eschews criminal justice reform to “improve” the system in favor of “nonreformist reforms—those measures that reduce the power of an oppressive system.” It makes the case that “new abolitionists”1 should instrumentally utilize constitutional arguments in their efforts to eliminate imprisonment. This radical article is the foreword to the Harvard Law Review’s 2018 Supreme Court Term issue. Yes, that Harvard Law Review. Yes, this Supreme Court.

Abolition Constitutionalism will doubtlessly have wide readership within the academy. I hope that it will also be widely read by nonacademics. Roberts writes accessibly and beautifully, and as evidenced by her meticulous citations, she has encyclopedic knowledge of the racial history of policing and punishment, the modern American prison abolition movement, and the Supreme Court jurisprudence on the reconstruction amendments. But, at 120 pages, the article is an undertaking for those unaccustomed to law reviews. Here, I offer a truncated overview in the hope of sparking even greater readership. I will pepper the overview with my impressions and analyze Roberts’s conclusion that “instrumental” constitutionalism is helpful to abolitionism.

The article begins with the most frequently asked question about prison abolitionism: What is it?2 Roberts traces new abolitionism to a 1998 Critical Resistance conference at Berkeley and adopts its concept of a “long-term political vision” toward ending the “prison industrial complex.” She outlines three main tenets of abolitionism: “First, today’s carceral punishment system can be traced back to slavery and the racial capitalist regime it relied on and sustained. Second, the expanding criminal punishment system functions to oppress black people and other politically marginalized groups in order to maintain a racial capitalist regime. Third, we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems.”

Roberts’ historical analysis makes a compelling case that the American prison state was born of the desire to repress formerly enslaved persons—and all blacks—and has served its purpose well. Less clear is why this ignoble history necessitates jettisoning policing and punishment altogether, rather than reforming, and in some places strengthening, them. Roberts herself notes that “criminal law treats prisons as essential to prevent or redress crimes committed by economically and racially marginalized people but unnecessary to address even greater social harms inflicted by the wealthy and powerful.” A stark example is that, “after Emancipation, white southerners began ritualistically kidnapping and killing black people” with impunity. Current capital punishment studies demonstrate this legacy of impunity, as those who kill black victims are far less likely than those who kill whites to receive capital punishment. Why not make the system better for “marginalized people” while using it instrumentally to get at “the wealthy and powerful?”

Abolitionists’ answer lies in a distinction between instrumental and institutional analyses of the criminal apparatus. Indeed, I have previously queried why progressives respond to discrimination against black victims in capital punishment by calling for less punishment (abolition) rather than executing more killers-of-blacks, while at the same time, they respond to a perceived bias against female homicide victims by calling for more punishment (eliminating provocation and elevating manslaughters to murders). The answer, I asserted, is the tendency to view death sentencing as an inherently racist institution but prison sentencing as something that can be used instrumentally against privileged bad actors (woman-killers, racist cops). New abolitionists regard not just capital punishment but the entire criminal (in)justice system as an endemically pernicious, irredeemable institution. As Roberts puts it, “Efforts to fix the criminal punishment system to make it fairer or more inclusive are inadequate or even harmful because the system’s repressive outcomes don’t result from any systemic malfunction…. Therefore, reforms that correct problems perceived as aberrational flaws in the system only help to legitimize and strengthen its operation. Indeed, reforming prisons results in more prisons.”

The last sentence hints at a controversy in abolitionist theorizing. Abolitionists generally applaud efforts to dial back policing, lower sentences, and release prisoners. There is less consensus on “reform”—whether abolitionists can, for example, support New York’s plans to close Rikers Island and open several smaller more “humane” prisons or Texas’s plan to build a new prison ostensibly tailored to women’s (and mothers’) needs. Roberts does not, and need not, fully resolve such controversies. She seeks to show that constitutionalism can be of instrumental use to the abolitionist in the consensus effort to shrink the penal state.

Now, abolitionists critique the instrumental use of criminalization because such serves to legitimate an institution that should be dismantled. Couldn’t the same critique apply to constitutionalism? The constitutional legal apparatus was also forged in the fires of American slavery, and constitutional law has often served as an enemy of, or alternatively a poisoned gift to, racial justice advocates. Roberts faces head on the argument that “constitutional change within formal legal processes occurs only to maintain the look of legitimacy,” such that “the very project of abolition constitutionalism could be antiabolitionist.” Indeed, she lays out a detailed bill of particulars against constitutionalism as a viable path toward racial justice and eradicating the prison industrial complex, which includes the state action doctrine, standing, colorblindness, Adarand and reverse discrimination, McCleskey v. Kemp, Utah v. Streiff, and the list goes on.

What then redeems the institution of constitutional law enough for it to be used by abolitionists instrumentally? Roberts finds promise in two sources. The first is the Antebellum-era Republican’s radical argument that the text of the original constitution forbid human bondage of any sort, even if the Framers intended differently. She hopes that courts will adopt interpretations, like that of Randy Barnett, that this radical abolitionist view is embodied by Fourteenth Amendment, despite widespread “revisionist history.” The second source of hope is Justice Sotamayor, and more specifically, her dissents in cases like Streiff that draw a straight line between Jim Crow and modern policing. “Suppose,” Roberts muses, “a majority of Justices not only ruled in line with Justice Sotomayor’s dissenting opinions in Heien, Strieff, Husted, and Perez, but also applied this reasoning to other claims of constitutional violations in policing, surveillance, sentencing, and prison conditions? Such a series of Supreme Court decisions would deliver a tremendous blow to the prison industrial complex.”

But I do not suppose that will happen any more than I suppose that the fact that a Chicago officer gave a homeless man the boots off his feet last June portends a redemptive future of policing. I fear that constitutionalism will less likely take a Sotamayor-dissent turn than become an even more formidable opponent of prison abolitionism. In turn, the effort to “hold courts and legislators accountable to an abolitionist reading” of the constitution may be so much tilting at windmills. Worse, I worry about strengthening an institution that may be on the verge of Adarand-ing all kinds of constitutional rights—amplifying religious liberty rights to give cover to discrimination and reproductive oppression, minting new rights to life and property that interfere with states’ prerogatives on abortion and depolicing. In more paranoid moments, I worry about the return of Lochner as states make serious efforts to tackle wealth inequality. Perhaps abolitionists’ focus should be on building momentum outside the courts and insulating abolitionist programs from constitutional interference.

In the end, I may not see great promise in constitutional law as an instrument of prison abolition, but Roberts’s article has deeply enriched my understanding of both abolitionism and constitutionalism.

  1. This is quite distinct from “new abolitionism” as it is used in some feminist circles to mean activists who regard pornography and prostitution as “modern day slavery” and advocate for strengthening carceral interventions in those realms.
  2. I have seen this question weaponized: If the abolitionist cannot answer it in a simple, practical, yet all-encompassing manner, then abolitionism is too “vague” to take seriously. Of course, the same is not said of “law and economics,” “feminism,” and “originalism.”
Cite as: Aya Gruber, Do Abolitionism and Constitutionalism Mix?, JOTWELL (February 11, 2020) (reviewing Dorothy Roberts, Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019)), https://crim.jotwell.com/do-abolitionism-and-constitutionalism-mix/.

Against Punitive Approaches to Animal Protection

In the United States, we often rely on criminalization as a way (sometimes the only way) of communicating social value. We purport to communicate the value of those who are harmed or injured by criminalizing the conduct that harmed them and prosecuting those who engage in that conduct. In recent years, scholars who study the criminal legal system have raised questions about this carceral approach to communicating social value. These critics have argued that harsh, punitive approaches to social problems frequently fail to solve those problems, even as they reliably replicate old patterns of injustice and generate a host of unintended consequences. The criminal legal system may also produce carceral “solutions” at odds with the actual wishes of the individuals harmed by the criminalized conduct.

In Beyond Cages: Animal Law and Criminal Punishment, Justin Marceau applies this critique to the carceral turn within the animal protection movement. Marceau uses the term “animal protection movement” as an “imperfect shorthand” for the “disparate groups and philosophies” that make up a “multifaceted” movement. He notes that leaders of the movement “have made clear that carceral animal law policies are a critical strategic priority.” (P. 2.) He then proceeds to explore, in a systematic way, the accumulation of thirty years of “carceral animal law policies” in mainstream animal protection efforts.

The laundry list of carceral policies catalogued in the third chapter of Marceau’s book will be immediately familiar to anyone who studies today’s criminal legal system. Movement actors have engaged in a widespread push for felony provisions on animal cruelty, often relying on imperfect scientific evidence (roundly critiqued by Marceau in Chapter Six) of a link between violence toward animals and violence toward humans. They have advocated for much tougher sentences for animal abuse crimes. They have pushed for the creation of registries of individuals convicted of animal cruelty. They have argued in favor of laws that provide animals with a dedicated advocate in the criminal process—an advocate who always argues, alongside the prosecutor, for the harsher criminal punishment of the accused. They have filed amicus briefs supporting the treatment of animal abuse as an “aggravated felony” in immigration proceedings—a designation that ensures mandatory deportation and a lifetime bar on return. They have provided significant financial and professional assistance not only to prosecutors’ offices in individual cases, but to organizations like the American Association of Prosecutors and the National District Attorneys Association. Perhaps somewhat exceptionally, they have actually funded prosecutors’ positions to ensure the presence of dedicated public actors committed to prosecuting animal abuse felonies. They have also provided extensive assistance to police officers investigating animal cruelty.

As Marceau makes clear, the movement has paid a price for its pursuit of more punitive animal protections. Along the way, advocates for these changes to the law have done what supporters of tough criminal law enforcement often do: they have argued for restrictive interpretations of constitutional and common law rights protections. They have called for strict liability approaches to animal abuse that disregard the accused’s lack of intent to harm. They have advocated for the stacking of criminal charges to leverage longer sentences in plea agreements. They have pushed for trying as adults some children accused of animal cruelty. They have argued successfully, in an Oregon Supreme Court case, that a blood draw from a dog fails to qualify as a Fourth Amendment search of the owner’s property. In that case, the blood served as evidence of the owner’s failure to adequately feed her dog, but as Marceau notes, far from affirming the dog’s status as distinct from inanimate property, this holding allows for searches of nonhuman animals in the absence of any oversight from a magistrate, which enhances “the power of the Prosecuting State, not the animals.” (P. 47.)

Proponents of carceral animal protection have also advocated for restrictive interpretations of the First Amendment. Marceau uses the example of U.S. v. Stevens, which involved a law that criminalized knowingly creating, selling, or possessing any “depiction of animal cruelty.” The Supreme Court found the provision overbroad and likely to cover instances of protective speech. Many movement actors decried the decision, maintaining that prosecutors would surely not apply the law in cases involving protective speech. In Marceau’s view, this places the movement “on the wrong side of history,” putting too much faith in the government’s ability to weigh the costs and benefits of speech fairly, and “arguing for a limitation on speech rights even in the face of some of the movement’s greatest allies—media advocacy groups, civil rights lawyer, and free speech experts.” (P. 75.)

Marceau observes that some participants in the animal protection movement are disadvantaged by the broader movement’s alliance with law enforcement. “The very prosecutors and justice system that is reified by the animal protection movement when it seeks to incarcerate animal abuse will treat a foie gras investigator or a journalist exposing factory farm abuse as criminals or terrorists.” (P. 48.) For instance, advocates of animal protection might oppose the Ag-Gag and other laws that facilitate the prosecutions of reporters and investigators who uncover animal abuse on factory farms. However, those advocates have been far less vocal in working against such laws than they have been in advocating for enhancing the punitive capacity of the state against certain kinds of animal abusers.

Marceau also notes that mainstream animal protection organizations have generally moved away from advocacy on behalf of radical activists charged with crimes such as trespassing as an of act of civil disobedience in service of animal protection. Marceau posits that many movement actors have concluded that they are more likely to be viewed sympathetically if they align themselves with, rather than against, the prosecuting state. In Marceau’s biting words, this means that the animal protection movement “is no longer on the sidelines of criminal law; it has chosen a side, and it is not the side of civil liberties or social change.” (P. 72.)

Marceau argues that this choice has weakened the practical and moral power of the animal protection movement in important ways. First, it has pushed movement actors to settle upon a narrow and non-transformative understanding of what constitutes animal abuse. Marceau surveys state animal cruelty laws and finds that, in states where advocates fought successfully for felony animal abuse provisions, they also supported state legislatures’ exemptions of agricultural cruelty from criminal animal abuse provisions. In seeking the “win” of felony animal abuse provisions, advocates agreed to laws that leave unprotected the vast majority of domesticated animals.

Second, the carceral turn of the animal protection movement has divided that movement from potentially powerful allies. For example, Marceau observes that animal protection could be furthered through workplace safety and health regulations that protect both humans and nonhuman animals in agricultural work. Such efforts could align the animal protection movement with other environmental, racial, and immigrant justice movements. Instead, the animal protection movement has pushed for felony provisions that give corporate agricultural interests a general pass for their abuses of agricultural workers and animals  while “working with immigration officials in a variety of capacities in order to facilitate the deportation of persons who have a conviction relating to animal abuse.” (P. 84.)

More broadly, Marceau argues that the decision to embrace carceral animal protection puts the movement at odds with advocates for racial justice who generally seek to constrain, not enhance, the powerful carceral state that is devastating communities of color. As Marceau explains in Chapter Five, rather than aligning themselves with other movements that support shared values of non-violence, dignity, and the protection of vulnerable populations, the animal protection movement is working at cross purposes with those movements.

In making this case, Marceau draws heavily on the work of legal scholars and critical theorists who have diagnosed and criticized the racial bias of the criminal legal system. Their work will be very familiar to readers of this page: Michelle Alexander, Paul Butler, Jack Chin, James Forman, Aya Gruber, Randall Kennedy, Charles Lawrence, Dorothy E. Roberts, Alice Ristroph, and the like. He also draws from Angela P. Harris’s work. Harris has written trenchantly about problems of racial injustice in the criminal legal system, of course. But fifteen years ago, she also analyzed the problems created by an animal rights movement insensitive to racial justice concerns. In one article, she asked Should People of Color Support Animal Rights?—a question that she answered affirmatively, but with caveats. Harris also offered an important articulation of how that movement could and should be more attentive to racial justice concerns. With the benefit of fifteen more years of evidence, Marceau’s work affirms and builds on Harris’s analysis.

Marceau marries the insights of these legal scholars with those of scholars and activists working on issues of animal protection outside of the legal field. Voices from within that movement have raised concerns about the ways that the movement unnecessarily isolates and ignores the needs and perspectives of historically marginalized communities. Marceau incorporates the insights of scholars and activists who might be less familiar to many readers of this page (and certainly were to me), including Julia Feliz Brueck, Michelle R. Loyd-Paige, and A. Breeze Harper, whose anthology Sistah Vegan receives sustained attention throughout Marceau’s book.

Marceau is frank about the limited options that animal protection movement actors often face. He acknowledges that when it comes to enhancing animal protection, the choice usually offered by policy makers and courts has been carceral strategies or nothing at all. Confronted with this (non)choice, advocates have embraced carceral strategies. Marceau’s critique, however, highlights how important it is for all social movements that value freedom and nonviolence to avoid entanglement with the criminal legal system in their quests for social change.

Cite as: Jennifer Chacón, Against Punitive Approaches to Animal Protection, JOTWELL (January 29, 2020) (reviewing Justin Marceau, Beyond Cages: Animal Law and Criminal Punishment (2019)), https://crim.jotwell.com/against-punitive-approaches-to-animal-protection/.

The Long Tail of Eugenics

The search for the precursors to contemporary mass incarceration in the U.S. has become one of the great legal, historical, and sociological debates of our times. Many of us have focused on two particular arcs of penal history in tracing the genealogy of mass incarceration. One is associated with the birth of the penitentiary and the police in the first third of the 19th century in the context of emerging capitalism (both slavery and free labor in the U.S.). From this perspective, mass incarceration has always been a part of the DNA of America’s form of racial capitalism. The other locates the genesis much closer to our own time in the political and economic crises of the late 20th century associated with the neoliberal transformation of the U.S. economy.

Laura Appleman’s article, Deviancy, Dependency and Disability, makes a convincing case for adding a third arc of history: one that focuses on the eugenic period of the early and mid 20th century as a crucial precursor for mass incarceration and that offers a comprehensive treatment of the eugenic influence on criminal justice policy and what she calls its “long tail.” Eugenics refers specifically to efforts to improve society by regulating births, but it also applies to a much broader range of policies influenced by core beliefs that many of the worst social problems facing America could be solved by segregating, sterilizing, or even eliminating the physically, mentally, and morally disabled. Appleman’s article builds on recent work of historians which has underscored the radical nature of America’s embrace of eugenic thinking and its enduring significance in fields like immigration, drug and alcohol policy, and criminal statistics.

The influence of eugenics on criminal justice was direct and indirect. Directly, eugenics served alongside positivist criminology as a scientific anchor of the so-called “Progressive” era expansions of the carceral state through juvenile justice, probation, and other individualizing mechanisms that determined penal severity by individual traits, especially race. Thus, the punishment of crime became a mechanism for achieving a negative eugenic goal of segregating the dangerous. These mechanisms became important sources of hyper punishment, especially of young Black men, during the build up of mass incarceration. Ironically, we still think of them as oriented toward helping people leave the carceral state, and many contemporary reform ideas are perhaps dangerously lodged there.

Perhaps even more important, and less noted, is the indirect influence that Laura Appleman points to. During this period, pre-existing asylums for people suffering mental illnesses (which had existed since the early 19th century) were greatly expanded and overcrowded with people classified mostly as “feebleminded” (an imprecise term for those considered intellectually disabled). In the eyes of eugenicists, the feebleminded were not simply intellectually limited (itself a dubious proposition given then contemporary measurement standards) but doubly dangerous in their criminality and their promiscuity. Since their traits were understood to be inheritable, the physical segregation of the feebleminded provided a double benefit against crime and other problems. Thus, in the first years of the 20th century, there were more than 10 times as many individuals held in institutions for the mentally ill and disabled as were incarcerated in federal and state prisons. 

In short, mass eugenic incarceration of the disabled in the early 20th century established the basic commitment to using institutions of confinement to achieve the eugenic aim of reducing crime and social problems in American society in a manner unrestrained by traditional legal concerns with legality and culpability. While eugenics as a social policy was discredited, its influence on criminal justice thinking was never redressed. When America entered a new phase of punitive expansion in the late 1970s, prison became the dominant custodial response to an institutionalized understanding of the criminal threat that extended well beyond the boundaries of legal guilt. As I read Appleman’s argument, this is not a claim of simple transcarceration (the people once warehoused in asylums are now in prison) but that an unbroken link to eugenic thinking in our criminal justice policies keeps social policies and institutions fixated on incapacitating those othered by physical or mental difference, disability, queerness, or racialization.

In the second part of her article, Appleman connects this earlier history to the better known modern history of deinstitutionalization and the failure of community care initiatives after the Supreme Court’s due process decisions of the 1970s accelerated the closing of public mental hospitals. While many appreciate the relevance of deinstitutionalization to modern mass incarceration, few connect it to the earlier embrace of eugenics. It is not an accident that our criminal justice system selects for disability; it is the very mark of its eugenic origins. Meanwhile, this highly vulnerable population has been packed into overcrowded prisons that seem almost organizationally incapable of delivering adequate care.

Harder to understand, but crucial to disabling this complex, is why, lacking the powerful but now largely abandoned scientific theories of eugenics regarding the centrality of inheritable traits (an argument that has never entirely gone away but is now marginal), this eugenic merging of disability and crime has been able to stay coherent. Is it largely the way the various organs of the carceral state reproduce the priorities, if not the specific propositional claims, of eugenics (focus on minorities, substance abusers, etc.)? What role is the law itself playing in holding this ensemble together? Hopefully, these questions will be taken up by scholars focusing on the middle of the 20th century.

Laura Appleman provides us with some hopeful directions for thinking about how to combat the role of this long tail of eugenics. One important implication is the centrality of disabilities to the construction of the carceral state and the historical pattern of excluding and incarcerating  people living with disabilities rather than facilitating integration. Asserting the rights of the disabled provides one way to battle for better prisons. Appleman also argues that screening out people with disabilities—at the earliest stages of the criminal process—would avoid a great deal of cruelty while enabling large savings on projected prison health care costs. Diversion programs are certainly necessary, but if the long tail of eugenics is also the framing together of crime and disability into a spiral of causation that exaggerates the danger of each (and the severity of the repressive response), then it may not be sufficient. We may need to go beyond diversion to build common strategies of decarceration across different institutions.

Appleman suggests appreciating the growing convergence between prisons and nursing homes. Prisons are becoming nursing homes for an aging prison population, as a growing number of people living outside prisons with severe physical disabilities join the very old in the nation’s growing body of nursing homes; a new kind of mass incarceration. (P. 458.) Rejecting and uprooting the long tail of eugenics, and its ensemble of stigmatized subjects and exclusionary practices, might require a commitment to abandoning segregation as a goal altogether, whether in criminal justice or in health care delivery.

Cite as: Jonathan Simon, The Long Tail of Eugenics, JOTWELL (November 5, 2019) (reviewing Laura I. Appleman, Deviancy, Dependency, and Disability: The Forgotten History of Eugenics and Mass Incarceration, 68 Duke L. J. 417 (2018)), https://crim.jotwell.com/the-long-tail-of-eugenics/.

An Anti-Democratic Mix of Secrecy, Unaccountability, Technology, and Surveillance

Andrea Roth, “Spit and Acquit”: Prosecutors as Surveillance Entrepreneurs, 107 Cal. L. Rev. 405 (2019).

If you were asked to design a DNA database to help solve crimes in a democratic society, what features would you include?  Legislative debate about the desirability of such a database would be a start. Whether such a DNA database would be justified by a cost-benefit analysis, with all potentially affected constituents having had a voice in the process might be another consideration. Appropriations for this hypothetical database might be conditioned on regulations intended to safeguard against abuse, to protect civil liberties, and to avoid scientific errors. And the mass collection of DNA presumably would not continue without clear evidence of its public safety benefits.

The District Attorney in Orange County, California has maintained its own DNA database since 2007. And it exhibits none of these features, as Andrea Roth’s article demonstrates. While there has been some journalistic and scholarly attention to the Orange County District Attorney’s (OCDA) database, Professor Roth’s work is the first to rely upon original field research, including court observations, public records disclosures, and interviews with all kinds of people familiar with the program, including affected defendants. The piece is remarkable and fascinating, both in its particulars, and what it can tell us about the dangers of other programs that may bear resemblances to it.

First, something on the specifics. For more than a decade, a local prosecutor’s office in California has offered those accused of low level offenses a deal: give us your DNA in exchange for a plea to lesser charges or a dismissal of charges entirely.  Many defendants agree to what appears to be a standard practice in the county, and the result is that the OCDA now holds the DNA of 150,000 peoplepermanently. No legislature has authorized it. And it is paid for largely by private funds (including the seventy-five dollars defendants fork over for processing their own samples).

Like the nation’s linked network of databases known as “CODIS,” the OCDA database also contains DNA profiles for criminal investigation purposes. But the similarities end there. As Roth explains, the OCDA database is the largest non-legislatively created DNA database in the country. Opaque prosecutorial decision-making led it its construction, drives its growth, and helps maintain an operation “largely in the shadows.” (P. 448.)

Roth aptly describes the creation and maintenance of the OCDA database as the work of “surveillance entrepreneurs.” These local prosecutors have been allowed to engage in a vast experiment of genetic surveillance that extends beyond their typical expertise or powers. Indeed, it is hard to imagine that a legislature would be able to justify such a program like the OCDA DNA database: populated largely with low-risk offenders, heavily reliant on private fees, likely influenced by private interests, and amassed without any clear sense of public safety benefit.

In this way, we can draw connections between Roth’s concerns and those highlighted by other criminal justice scholars about how technological advances, private interests, and the withering of traditional accountability mechanisms are raising alarms in areas ranging from bail determinations, street policing, and criminal defense. Surveillance entrepreneurs, as we learn in this important piece, represent one more threat to democratic values in a rapidly changing justice system.

Cite as: Elizabeth Joh, An Anti-Democratic Mix of Secrecy, Unaccountability, Technology, and Surveillance, JOTWELL (October 8, 2019) (reviewing Andrea Roth, “Spit and Acquit”: Prosecutors as Surveillance Entrepreneurs, 107 Cal. L. Rev. 405 (2019)), https://crim.jotwell.com/an-anti-democratic-mix-of-secrecy-unaccountability-technology-and-surveillance/.

The Punishment and Treatment is the Process

Wendy Bach, Prosecuting Poverty, Criminalizing Care, 60 Wm. & Mary L. Rev. 809 (2019).

In The Punishment is the Process, Malcolm Feeley famously documented that in New Haven, Connecticut’s low-level criminal courts, pretrial detention, and its impact on work and family responsibilities, drove plea bargains. In Prosecuting Poverty, Criminalizing Care, Professor Wendy Bach demonstrates that, in Eastern Tennessee’s low-level problem solving court, the threat of pretrial detention may drive access to opioid treatment through “diversion” into drug courts.

Problem-solving courts, including drug courts, are one of the fundamental innovations in criminal justice over the past quarter of a century. These courts purport to change the behavior of offenders by providing intensive supervision and treatment for non-violent offenders whose offending derives from particular social, medical, or psychological causes. Their distinctive approach depends upon the claim that the criminal justice system must respond to the problem of drug addiction, as well as their non-custodial, inter-disciplinary, team-oriented and court-centered model of continuous judicial monitoring.

One reason for the popularity of problem-solving courts is that they provide an opportunity for the criminal justice system to monitor the provision of drug treatment services both directly and intensively. These courts thus enable a sentencing judge to retain control over the process of recovery, rather than simply receiving periodic reports from defense counsel or probation services. The promise of direct supervision and control has proved especially attractive for dealing with drug addicts, who frequently relapse, cycle through courtrooms, and clog up dockets, but who often present a low risk of harm to others.

If the features of problem-solving courts are, by now, relatively familiar, the politics of problem-solving justice remains somewhat opaque. There has been little research discussing the interaction between the substantive criminal law and problem-solving courts. It is at this point that Professor Bach’s research steps in to fill the void, with a study that is both theoretically sophisticated and empirically rich.

The problem-solving model of intensive supervision, Professor Bach reveals, has proven particularly attractive for Tennessee lawmakers seeking to provide some fix for the opioid crisis. In particular, Tennessee prosecutors identified as particularly troubling the number of babies born with Neonatal Abstinence Syndrome, suffering withdrawal symptoms from drugs prenatally ingested by their mothers. Professor Bach persuasively reveals that a major justification for a new law targeting drug addicted pregnant women for criminal prosecution for the crime of fetal assault upon the birth of their children was the availability of problem-solving courts as a core justification for the law. The legislature created the crime of fetal assault to require treatment, but through the criminal justice system rather than an alternative to it.

Professor Bach’s article breaks new ground in the problem-solving paradigm. It builds on prior work showing that the problem-solving courts do not divert from the criminal justice system, or really seek to ameliorate the impact of the criminal justice system. Instead, she suggests that the courts have gone along with generating a new criminal law—or at least operate in the same justificatory space as those criminal laws.

Her study of the Tennessee fetal assault statute shows that problem-solving justice does not simply preserve existing sanctions but is compatible with creating new substantive crimes. Bach’s study fits with the actions of those problem-solving judges who challenged California Propositions 36 and 47 or Ohio Issue 1 (which sought to decriminalize drug possession) as undermining the power of these courts to impose jail time as a form of therapeutic sanction. In California and Ohio, problem-solving judges sought to maintain the penal status quo, rather than accede to new limits on drug criminalization. In Tennessee, problem-solving courts went along with legislators who sought to expand the criminal justice system. Rather than simply fighting a negative or rearguard action to prevent changes in the law (and in the law of sanctions at that), Tennessee problem-solving justice embrace the positive creation of new, substantive criminal law to drive new clients into their courts. Whilst this is not the whole story that Professor Bach tells, it is a novel and important insight.

The politics of problem-solving punishment and criminalization is shocking, but not surprising. Shocking, because the rhetoric of problem-solving justice presents itself as an oppositional alternative to mass incarceration. Not surprising because, soon after the creation of drug courts, judges and academics pointed to their “net-widening” effect: they increased, rather than decreased, contacts with the criminal justice system. Professor Bach has identified a special and insidious type of net-widening: creating new offenses with drug courts in mind.

I believe that the problem-solving court intervention produces an important psychological and political effect for the officials that staff these courts. The intensive, persistent judicial supervision of offenders enables the judge (and other officials) to treat isolated, individualized, episodic successes as representative of systemic criminal justice reform. These isolated successes mask systemic injustice in the way the state uses the criminal justice system to target and control specific communities. One way they do so is by viewing addiction treatment as the business of criminal supervision, with the threat of punishment regarded as a necessary tool of treatment success.

By emphasizing criminality as caused by individualized, micro-social behavioral problems, the court, and in particular, the judge, addresses herself to the rehabilitation of discrete offenders, one at a time. This atomistic approach gives disproportionate attention to the success of individualized offenders, rather than the operation of the program as a whole. The judge becomes dependent upon the individualized, personal success of the offenders appearing before her to mask her participation in a systemically unjust criminal justice system. The success of discrete participants enables the judge to redirect the concept of evidence-based outcomes from the program or the group, to the success individual clients.

Some of that injustice is revealed through the problem-solving courts’ attitudes towards punishment and criminalization as an alternative to medical treatment. Given the limited provision of opioid treatment through the public healthcare system, the Tennessee criminal justice system has colonized the provision of treatment by its ability to prioritize the criminal justice route to accessing limited sources of opioid care. Punishment provides access to scarce treatment resources. On the other hand, state reporting requirements place pregnant women at-risk of criminal charges. Seeking treatment for drug addiction renders poor, rural, pregnant women vulnerable to punishment.

Crucially, Professor Bach demonstrates that punishment and treatment are not alternative modes of intervention, but are strongly linked in the minds of lawmakers and prosecutors. In the new regime of punishment-and-treatment, punishment is internal to treatment. Punishment is the form that treatment takes when treatment is conceived of as behavior-modification for irresponsible mothers. The goal is a form of “responsibilization” (to use a term coined by criminologist David Garland) in which the offender not only alters her behavior, but is made responsible for effecting that change by being held personally accountable for it. Punishment becomes the method of prodding the vulnerable addict to change her ways. Stripped of its negative consequences, punishment-and-treatment becomes a necessary boon to judges and lawmakers seeking to “help” and “treat” addicted individuals.

There are plenty of other interesting insights in Professor Bach’s article, not least in her linking of criminal justice, healthcare, and social services; or in her recognition that the criminal justice system uses indigent, addicted women to pay for its services in deeply problematic ways. Indeed, her research fits within some of the recent work done on the ways poor women are targeted for criminalization by police and prosecutors based on their gender. For anyone wishing to understand the insidious world of problem-solving justice, her article is essential reading.

Cite as: Eric J. Miller, The Punishment and Treatment is the Process, JOTWELL (September 18, 2019) (reviewing Wendy Bach, Prosecuting Poverty, Criminalizing Care, 60 Wm. & Mary L. Rev. 809 (2019)), https://crim.jotwell.com/the-punishment-and-treatment-is-the-process/.