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Monthly Archives: October 2016

More Data in the Debate on Colorblind Justice

A new book by Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court, does for criminal courts what cameras have done for police brutality. African-Americans and Latinos have been sharing their stories for decades about the terror of police harassment and brutality in their daily lives. Despite these claims, the notion of unarmed men being unreasonably and pretextually stopped, brutally beaten, and even shot unnecessarily, were regularly denied, minimized, or justified by police. At best, these instances were believed to be rare or accidental in what has been branded as our new “colorblind” or “transracial” society. In this colorblind world, discrimination—if and when it existed—was structural and unintentional. Law enforcement were not agents of racial discrimination but were trying to do a difficult job in an imperfect system. Citizen bystanders armed with cellphone cameras and police department regulations requiring officers to wear cameras have changed our perceptions in ways that personal voices and narratives by the victims themselves never did.

Similarly, racial discrimination in the criminal justice system is not a new claim. The racially disparate “outputs” of the criminal justice system—the grossly disproportional incarceration and criminal supervision rates of people of color—are impossible to ignore. In the face of alarming statistics, scholars, activists, and social critics alike have turned to explanations of structural and unintended racism. The myriad explanations put forth by critics are varied, but most have one thing in common: they support the notion that the legal decisionmakers tend to be colorblind. If racism exists, it exists outside of the criminal justice system and can be blamed on structural inequalities such as poverty and unemployment in communities of color, sentencing guidelines, racial profiling by law enforcement, or ineffective legal representation. One common explanation has been that the criminal justice system is impacted by race discrimination and inequality in other areas of society like education, housing, and healthcare, but that the criminal justice system does not itself produce racial disparity. The explanation that has lost traction over the last several years is the notion that individual professionals in the criminal courts behave in racially biased ways: that they treat black and Latino defendants differently from whites as a response to their race. With good reason, we have been reluctant to point the finger at the well-meaning and well-trained professionals in our criminal courts. This is not the type of claim one should make without proof.

Van Cleve’s book can be understood as part of the dialogue about racial disparity in criminal courts: colorblind procedures with discriminatory impacts versus intentional and discriminatory acts. It is an attempt to garner the proof of individual racist behavior in courts, one of the few facets of modern life where cameras and cellphones remain widely forbidden. She questions the claim that our courts and the professionals who inhabit them are generally colorblind. As she puts it, “this book is an empirical answer” to the question of how formally colorblind due process procedures are undermined by the legal professionals. (P. xii.)

Her book is a plea to mobilize citizens into amateur social scientists who can join her efforts to document and substantiate the narratives of discrimination of people of color in criminal courts. Consider Crook County the first installment in what she hopes to be more citizen oversight. The book is an empirical ethnographic study of Illinois’ Cook County criminal courts. Over the course of several years, Van Cleve worked with over 100 court watchers and collected over 1000 hours of observation data. The court watchers, many of whom were trained research assistants, examined the behavior of courtroom professionals. Van Cleve supplements this data with her own in-depth observations during her time working closely with prosecutor and defense attorneys’ offices. With this she can differentiate what sociologists call “front-stage” behavior from “back-stage” behavior of legal professionals.

Many of the vignettes she describes are shocking and disturbing. Van Cleve does not approach the subject with objective neutrality. Nor does she claim to. The data are presented from her own scholarly perspective and marshaled to demonstrate her anti-colorblind hypothesis. However, a strength of the book is that, like an image or video, the reader can review the material provided by the primary witness and draw her own conclusions. What happens to black defendants in Cook County criminal courts is harrowing. Van Cleve describes the “niggers by the pound” contest formerly played by prosecutors who won by maximizing convictions for the heaviest defendants and being the first to reach a tally of 4000 pounds. (P. 54) She tells the story of a judge who seemed to relish the public show of humiliating and screaming insults at an elderly black woman charged with killing her abuser. The sobbing woman begged for leniency and clung to the pole of her oxygen tank while the judge screamed at her and onlookers watched open-mouthed or laughing. (Pp. 51-52.) In another story, a defense attorney vilified his client to the judge and prosecutor, explaining that he wouldn’t represent him but for a favor to the defendant’s mother. The defendant got a plea deal based on sympathy for the attorney himself. (Pp. 106-07.) Many of these stories have racist undertones. They can be viewed as the modern criminal justice versions of the auction block in slavery, public lynchings in Jim Crow, or the post-industrial commodification of white privilege. Others may view them as examples of gallows humor, sadistic cruelty, and strategic advocacy. Every witness can decide for herself how to understand these stories, but the real benefit of Van Cleve’s book is the aggregate effect of tale after tale of these undeniably racialized events. The compilation makes the simple case that legal professionals—judges, prosecutors, defense lawyers, court officers—dispense justice in ways that are not blind to differences of race and color.

Cite as: Margareth Etienne, More Data in the Debate on Colorblind Justice, JOTWELL (October 21, 2016) (reviewing Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court (2016)),

The LGBT Piece of the Underenforcement- Overenforcement Puzzle

Jordan Blair Woods, LGBT Identity and Crime, 105 Calif. L. Rev. (forthcoming 2017), available at SSRN.

I have always been fascinated by the underenforcement-overenforcement puzzle. I was thus immediately drawn to Jordan Blair Woods’s fantastic article, which analyzes this complex problem through the lens of LGBT identity. Let me explain the underenforcement-overenforcement issue: Individuals who belong to marginalized groups, such as racial and sexual minorities, disproportionately bear the brunt of crime and law enforcement. When minorities are victims of violence, especially violence motivated by bigotry, liberal advocates tend to support policies and practices that are tough on such crime. When minorities suffer police harassment, revolving door criminal justice, and mandatory sentences, liberal advocates call for police restraint, decarceration, and discretionary leniency. Is this just abject inconsistency? Not necessarily. Let’s say on block A, a white man beats up a black man, while on block B, a black man beats up a white man. The prosecutor charges the white defendant with a misdemeanor and releases him with time served, but charges the black defendant with aggravated assault, resulting in a mandatory ten-year sentence. Everyone should rightly scream foul because similar actors were treated differently on account of race, the racially privileged person received leniency, and the minority was treated harshly.

Difficulties arise when such notions of formal equality and substantive fairness translate into a legal reform agenda. One of the clear drivers of inequity in the above scenario is prosecutorial discretion, so one might propose that prosecutors always bring the most serious charge supported by the evidence. This would surely address the underpunishment of whites, but it might compound the problems of African American overpolicing. Indeed, in response to evidence showing that prosecutors disproportionately seek the death penalty in white-victim cases, race scholar Randall Kennedy once suggested that prosecutors be required to pursue capital punishment in black-victim cases, recognizing the “cost” of executing more black defendants. In my hypo, the crimes are interracial, but most violence is intraracial. Alternatively, we might be concerned with the mandatory ten-year sentence and believe that judicial discretion in sentencing would have produced justice for the black defendant. But such discretion risks disproportionately benefitting whites who harm blacks.

To complicate matters further, the categories of victim and defendant are fluid, and those who experience social and economic marginalization flow in and out of them. A singular focus on minorities as violence victims can lead to myopia about the ways that pro-prosecution reform affects minorities when they, or their loved ones, inhabit the criminal defendant category. This focus can also eschew intra-group differences, including intersections with other identities and individuals’ differing reactions to victimization. Scholars like Kennedy and Alexandra Natapoff have discussed African Americans’ complex relationship with under- and overpolicing. Feminist commentators, including Leigh Goodmark, Jamie Abrams, and myself, have analyzed female identity and criminal law, seeking to find a satisfactory path between concern for women’s widespread subordination and skepticism of the penal state. Discussion of how LGBT identity fits into this puzzle, however, has been noticeably absent from the conversation. That is, until now.

In an article that in my opinion revolutionizes LGBT and criminal law theorizing, Woods sounds a cautionary note about how past fights against homosexuality’s construction as psychopathy and newer anti-violence activism have “left us with flat understandings of LGBT offenders as sexual offenders and flat understandings of LGBT victims as hate crime victims.” Woods builds on the nascent critique of “carceral” LGBT activism set forth by Dean Spade and others (here, I draw a parallel to “carceral feminism,” a concept developed by sociologist Elizabeth Bernstein), and asserts that, after successfully challenging the decades-long regime linking LGBT identity and sexual deviance, activists focused singularly on LGBT people as victims of discriminatory violence. While this focus is understandable and laudable on many levels, it led to an impoverished account of the larger relationship between LGBT identity and criminal law.

Woods provides a genealogy of the current victim-based scholarly view through an “intellectual history” of how LGBT identity (understood historically as gay male identity) and criminal law “travelled together over time.” This history is divided into two time frames, one over a century long (1860s-1970s) and the other only a few decades (1980s-today), perhaps reflecting the rapid evolution of thought on the issue. The hundred-year story is one of sexual deviance. LGBT individuals were invisible in the U.S. criminal law for much of its history, Woods notes, except to the extent that certain same-sex “abominable” acts were criminalized. The psychologizing of homosexuality in the late nineteenth century, the scientific treatment paradigm of crime control in the early twentieth century, the development of theories of immutable psychopathy in the 1940s, and post-World War II moral panic over child sex offenses paved the way for the infamous “sexual psychopath” laws of the mid-century. Facing the choice of psychiatric treatment or criminal punishment, LGBT individuals, Woods observes, had little option but to accept the narrative of homosexuality as psychological deviance. At the same time, well-meaning criminologists supporting non-penal interventions offered sympathetic accounts of homosexuality as a product of “micro-level” problems, such as damaged family and social group dynamics, but they ignored any connections between LGBT persons’ crimes and “macro-level” social inequities like poverty and neighborhood conditions―connections that social structure theorists frequently made for other identity groups. What emerged by the 1970s, according to Woods, was a picture of a group defined by internal sexual deviance, whether such difference was benign or malign.

The second period of the intellectual history is a rapid retreat from the sexual deviance paradigm of the preceding century. LGBT activism, sexual liberationist sentiments, and the progressive 1962 revision of the Model Penal Code undermined the vitality of sodomy laws. The early part of the period also saw the abandonment of sexual psychopathy laws, removal of homosexuality from the DSM, and general move away from defining LGBT identity in terms of mental disease. Woods explains that these conditions “opened space to conceive of LGBT people in the criminal justice system in ways other than as deviant sexual offenders.” What ultimately occupied this space was a conception of LGBT identity defined, not by deviance, but by discrimination. In the 1980s and 90s, progressive criminal law theorists and anti-discrimination activists on the left and prosecutors and victims’ rights supporters on the right turned their attention to the issue of hate crimes, and violence against gays and lesbians was a “key aspect” of this growing movement. The movement proved jurisgenerative, with states widely adopting punitive hate crime legislation, and academically fecund, producing a wealth of empirical information on homophobic violence. Woods stresses that the program adopted an anti-discrimination paradigm, “namely, that a perpetrator’s discriminatory selection of a victim on the basis of the victim’s LGBT identity resulted in unique problems.” Within the criminal law, LGBT identity was again singularly meaningful, but this time its meaning was one of individual victimhood at the hands of violent hate-mongers, now conceived of as the psychological deviants. Woods fascinatingly reveals that in the Lawrence v. Texas litigation, psychological experts filed an amicus brief stressing that anti-sodomy laws reinforce the pathological anti-gay prejudice underlying hate crime.

In Woods’s telling, the frame flipped from overpolicing to underpolicing. One might ask if there is anything wrong with that. One could argue that having won the overpolicing battle against sodomy and psychopathy laws, activists were right to concentrate on battling hate crimes. The problem with that argument, according to Woods, is that it conceptualizes the world of LGBT issues in criminal law as sodomy and hate crime, when in fact there are many other―perhaps more pressing―battles to fight. The sodomy-hate crime binary has stunted the development of data on and theorizing about LGBT individuals as perpetrators of non-sex crimes and victims of non-bias crimes, and Woods devotes substantial energy to calling for more academic capital to be expended on those efforts. He envisions a critical school of LGBT criminology similar to feminist criminology. Woods also draws upon the available evidence to persuasively hypothesize that non-sodomy/hate crime issues abound: LGBT individuals disproportionately suffer from structural conditions―inequality, poverty, lack of social support―that dispose people to be perpetrators and victims of “ordinary” crimes. Moreover, one has ground to reason that, like other marginalized groups, LGBT groups are disproportionately subjected to police discrimination, harassment, and brutality.

By calling for greater breadth and introspection on the relationship between LGBT identity and criminal law and revealing that it is much “murkier” (to borrow Elizabeth Schneider’s word) than the sodomy-hate crime binary allows, Woods has contributed substantially to the scholarly discussion. But I want more. Is there more to the critique of the carceral hate crime project than saying that the project is too narrowly focused and creates an information vacuum? What does Woods surmise these new LGBT criminologists and criminal law theorists will conclude about the hate crime movement and its larger relation to LGBT justice? Should the reader take Woods’s analysis as a critique of the individualist anti-discrimination frame, a critique currently being made by left scholars in the labor context? Do his arguments resound in the feminist rejection of the victim label or progressive criminal law scholars’ objection to the victims’ rights movement? Could there be a burgeoning analysis of “governance” LGBT theory here, akin to Janet Halley’s examination of “governance feminism”? I am excited to hear what Woods and others taking up his call to action have to say about all these issues. For now, it is enough that this article exists. I believe it will be remembered for years to come as the start of something big.

Cite as: Aya Gruber, The LGBT Piece of the Underenforcement- Overenforcement Puzzle, JOTWELL (October 11, 2016) (reviewing Jordan Blair Woods, LGBT Identity and Crime, 105 Calif. L. Rev. (forthcoming 2017), available at SSRN),