Yearly Archives: 2016
Jul 27, 2016 Angela Harris
Margo Kaplan,
Rape Beyond Crime, 66
Duke L.J. (forthcoming 2017), available at
SSRN.
Not long ago, I was indulging in one of my favorite lazy-day pastimes – standing in my local bookstore, reading. The book was Girls and Sex, Peggy Orenstein’s latest, and I left the bookstore considerably more unsettled than when I walked in. Suddenly it seemed like a good idea, if not to forbid her to go to college altogether, at least to walk my 18-year-old daughter to the nearest feminist sex-toy store first. Now comes Margo Kaplan to offer a legal perspective on American “rape culture,” and a new plan for furthering the feminist project of healthy, happy sex lives for everyone.
The idea that men’s sexual desires are insatiable and that women are responsible for keeping them in check has been around for a long time, and in Rape Beyond Crime Kaplan cites abundant evidence that it remains a cornerstone of American beliefs, such as a survey finding that many young men do not see coercing women into sex as wrong. Orenstein’s book, which is based on interviews with young American college and college-bound women, underscores Kaplan’s argument. Orenstein’s interviewees talked about feeling sexually empowered. But their actions attested to intense cultural pressures: to always look “hot” (which, these days, involves Brazilian waxes and, occasionally, surgery to alter the look of one’s labia); to be seen as neither “prudish” nor “slutty”; to embrace a world of casual, ambiguous “hookup” relationships (facilitated by alcohol); and to place men’s sexual desires above their own. (On this last point, for example, Orenstein describes her frustration in trying to convince her young interlocutors that there is something not quite fair about regularly giving blow jobs but seldom requesting, or even being comfortable with, cunnilingus.)
Kaplan concludes that “absent a broader change in this culture, criminal law faces a double bind: rape laws can be either ineffective or unjust.” Because there is such a mismatch between the world sexual equality feminists, at least, would like to live in and the world we actually do live in, scholars and actors in the criminal justice system struggling to apply statutory terms like “force” and “consent” find themselves either confirming social norms that preserve men’s sexual access to women (ignoring the needs of male and female victims), or promoting idealistic norms that feel alien and unreasonable to the ordinary person.
The answer, Kaplan proposes, is to supplement the criminal law of sexual assault with a public health approach to sexual culture. As she notes, “public health law” is a grab bag of doctrines and policies including educational initiatives, data collection, and public-private partnerships among government, nonprofit organizations, media outlets, and advocates, all underwritten by the police power of the states and the federal power of the purse. The cornerstone of a public health approach, according to Kaplan, is its focus on “populations and prevention” – the exact opposite of the criminal justice system, which focuses on individuals and, despite its aspirations to deterrence, requires a violation as a trigger.
Kaplan’s proposed public health approach to rape has two main prongs. First, government agencies would amass detailed data on sexual violence (and where possible, presumably, sexual encounters that are unwanted regardless of whether they are understood as “violent”). Second, government agencies would promote new cultural norms for sexual behavior, challenging the norm of male aggression/female passivity and promoting in its stead an ideal of “good sex—sex that involves communication, mutual respect, and mutual pleasure.” (On the model of Michelle Obama’s work on obesity, I imagine First Husband Bill Clinton traveling the country promoting good sex for all.) In addition, Kaplan would encourage rape prevention campaigns to look “upstream” at structural determinants of victimization, such as poverty.
Kaplan is forthright about her ambition to use the power of the law to promote social norms. In her view, “[i]nterventions that encourage empathy and respect, and that reject gender norms that encourage sexual violence, should start at an early age and progress in an age-appropriate way.” But she doesn’t note that such interventions would run straight into the buzz saw UC Berkeley sociologist Kristin Luker describes in her 2006 book, When Sex Goes To School. Luker, studying K-12 sex education curricula in varied American communities, found a deep rift between “liberals” – for whom, in the words of New York Times reviewer Judith Shulevitz, “sex is natural and unmysterious, a healthy, pleasurable, quasi-recreational activity” – and “conservatives” – who (again in the words of Shulevitz) “consider sex sacred but dangerous, transformative when contained by marriage but destructive outside it.” Kaplan’s “public health” approach to sex is clearly a liberal approach. It would likely face the conservative response of thinking that once again, liberal coastal elites are trying to use government power to force a secularist and even immoral way of life on unwilling communities. And just as North Carolina and other states have used “protecting children” and “protecting religious freedom” to push back against laws and policies protecting LGBT people from discrimination and exclusion, I can imagine the pitched battle that would erupt should a future administration decide to help elementary-school children “theorize ‘yes.’”
But let’s say that, as in the war over same-sex marriage, liberals can win the war over sex education with the help of social media, Oprah, and Hollywood. Kaplan also passes over a more subtle objection from critical legal theory. Queer scholars like Janet Halley and feminist scholars like Aya Gruber (whom Kaplan cites approvingly in her critique of the criminal justice approach to rape) might ask whether alliances between feminist advocates and the state to change social norms are necessarily a good idea. Halley’s concept of “governance feminism,” for instance, encapsulates the idea that feminists with a taste of power may, like other people, use it to run roughshod over people who don’t agree with them. Gruber might suggest that a generation from now we will look back on feminists working in alliance with government, Facebook, and Google to discover what everyone desires and does sexually, and shudder at the emergence of a new site of surveillance and discipline enabled by Silicon Valley and powered by the state.
Despite these omissions, however, Kaplan’s article is thoughtful and thought-provoking, timely, and well-argued. As a blue-state sexual liberal, I would love for my daughter to go to college secure that she knows what and whom she desires and how to get it, and able to trust that both her “yeses” and “nos” will always be respected. I am also thoroughly persuaded that criminal law alone will never get us there. It’s high time we pursued new approaches to a world of equal access to sexual pleasure and equal protection from sexual danger. Kaplan’s proposal is a terrific place to start.
Jun 28, 2016 Elizabeth Joh
In criminal justice circles, “big data” is the new buzzword: police departments are experimenting with the application of computer algorithms to vast amounts of digitized data to predict the future geographic location of crimes, to identify those people likely to become involved in gun violence, and to assess future criminality for the purpose of setting bond amounts and determining sentences. It turns out, though, that algorithms have problems. They can reflect the biases and choices of the humans who create them. They can also be plain wrong.
Besides algorithms, there is a more basic problem. The data itself can contain countless mistakes, inaccuracies, and discrepancies. While the wrong address, the invalid warrant, and the mistakenly recorded conviction don’t sound like particularly new problems (they aren’t), they represent an urgent but overlooked issue in our information-dependent world. This data determines how the government distinguishes between the dangerous and the low-risk, those who should be arrested and those who should be left alone. However, as Wayne Logan and Andrew Ferguson point out in their insightful and important article, Policing Criminal Justice Data, this “small data” is too often dead wrong. To make matters worse, there is little incentive for government agencies—at any level—to care. Their discussion is a must-read for anyone interested in the increasingly important role of information distribution and control in criminal justice.
Criminal justice information errors have enormous costs in the lives of ordinary people. Consider the problem of an erroneous arrest warrant, wrong perhaps because it is meant for a person whose name is close enough to, but not exactly like, yours. Should that mistake lead the police to arrest you, you may—indeed are likely to–become subject to a search of your person, and perhaps later a strip search in jail and a compulsory DNA sample. A night in an overcrowded and sometimes dangerous jail isn’t just a loss of liberty; it’s an exposure to some very real harms. The resulting arrest record may also harm your future chances of employment and much else.
Should we care? Absolutely. At the individual level, such mistakes can be not only demeaning but ruinous in a very practical sense. Every mistaken arrest hurts the victim, and misdirects government attention to the wrong places. More abstractly, collecting and generating so much information about its citizens obliges a government to make reasonable efforts to guarantee data accuracy. Without that expectation of good faith, the government risks our trust in it.
The legal remedies for these mistakes are weak. Take, for example, the options of a person who has been the victim of an erroneous arrest, because her name was similar to the one on an outstanding arrest warrant. Police have considerable latitude to make mistaken arrests. In addition, recent U.S. Supreme Court case law has narrowed the scope of the exclusionary rule in cases of “good faith” mistakes. Civil suits against the police are no better, since qualified immunity typically protects them from liability in most cases of informational mistakes. Even where legal avenues are formally available for victims of the government’s data errors, few people have the time, resources, or expertise to challenge the black box of most government databases. The federal and state governments have little incentive to change the situation.
Logan and Ferguson, after having explained this abysmal state of affairs, offer thoughtful solutions that address much-needed institutional changes. The federal government, in particular, can be an important driver of reform since federal money has played such a large role in the growth of state criminal justice databases. Federal resolve to improve data quality might take the form of quality assurance measures, such as mandatory audits. States too can play a critical role in providing individual legal remedies for criminal justice data errors. An underlying theme here is the importance of cultural change: caring about data quality is perhaps even more important than the details of its practical implementation.
We live in an age of the algorithm, but we also live in the age of mass information. Nowhere is the cost of mistaken information more tangible than in criminal justice. As Logan and Ferguson so persuasively show in Policing Criminal Justice Data, those data errors are at the core of government trust and accountability.
Jun 2, 2016 Christopher Slobogin
Jane Bambauer,
Hassle, 113
Mich. L. Rev. 461 (2015).
Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.
That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line).
Although to most the distinction between the two situations is intuitive, it is blurrier than it might initially appear. Seizures at license checkpoints are based on suspicion in the sense that the department operating them believes that a certain percentage of drivers stopped will have expired licenses. Thus, while the suspicion with respect to any particular driver is very low, it is still the case that every car stopped at the checkpoint is associated with some degree of suspicion. At the same time, one could say the stop in Terry was based on the same type of “generalized suspicion” involved in the checkpoint scenario, in the sense that Officer McFadden was operating on preexisting stereotypes about the behaviors that are consistent with burglary.
As modern policing increasingly relies on algorithms and profiles, the connection between “suspicion-based” and “suspicionless” searches and seizures will become increasingly obvious. Facial-recognition technology, data-mining algorithms, hot-spot policing, and other predictive policing techniques allow police to scan large segments of the population for suspicious activity or individuals. Although these techniques function like checkpoints, they are based on calculations that the individuals identified are more likely to be involved in criminal activity than those who do not fit the profile.
Enter Jane Bambauer’s article Hassle. Bambauer begins by making clear why the word “individualized” in the phrase “individualized suspicion” obscures the fact that, in both Terry-type cases and checkpoint-type cases, police who conduct searches and seizures are acting with some quantum of suspicion about the person, entity, or item affected. The only difference is that in the situations usually thought of as individualized suspicion cases, courts specifically discuss whether that quantum is sufficient, whereas in “suspicionless” cases (often involving what the courts call “special needs”), they don’t.
Bambauer also debunks the idea that individualized suspicion is somehow more accurate or more desirable than generalized suspicion. Scholars have decried the use of profiles on the ground that they have significant error rates. But so do all searches and seizures. Some factors—such as race—should never appear in profiles, both because using such a factor is particularly repugnant and because race is not a very good predictor of crime. But, as the example with Officer McFadden illustrates, even cases we call “individualized” ultimately rest on profiles.
Others have made this point. As Bambauer notes, Fred Schauer has stated: “[O]nce we understand that most of the ordinary differences between general and particular decisionmaking are differences of degree and not differences in kind, we become properly skeptical of a widespread but mistaken view that the particular has some sort of natural epistemological or moral primacy over the general.” The more innovative part of Bambauer’s article—the “hassle” part—is the explication of how the individualization requirement has inadvertently acted as a break on dragnet searches and seizures. As Bambauer defines it, hassle measures the chance that an innocent person will experience a search or seizure. When courts require the cop on the street to have “individualized,” as opposed to generalized, suspicion for a stop, they are not only requiring officers to have good justification for their actions but also implicitly prohibiting police from hassling large numbers of innocent people. As Bambauer puts it, “individualization has kept hassle low by entrenching old methods of investigation,” methods such as relying on tips and individual conduct rather than technologically-oriented panvasive techniques.
One might react to this point by concluding that the courts’ take on individualization is a good thing. But not Bambauer. She points out that modern techniques can improve policing by reducing error rates, limiting reliance on vague suspicion factors such as “nervousness” or “bulges” (which can often be covers for race), and making policing more evidence-based. Bambauer also recognizes, however, that these techniques come with a cost—a potential for increased hassle. Thus, she argues that the Fourth Amendment requires attention not only to “hit rates” (the suspicion part of individualized suspicion) but also to hassle rates (the number of innocent people affected by a given police technique). She suggests that hassle can be limited through keeping profile programs small or through randomization that reduces the number of people affected by the search or seizure. Another possibility—most likely relevant when, as with checkpoints, significant hassle cannot be avoided—is to ensure hassle rates are explicitly contemplated and authorized by a legislative body representative of those people likely to be affected by the search or seizure.
Bambauer begins her article with a hypothetical. Suppose an officer comes to a judge seeking a warrant based on a methodologically sound study showing that 60% of Harvard dorm rooms contain drugs. The officer also provides the judge with an affidavit listing ten dorm rooms selected through a random number generator and stating that no other dorm rooms will be searched on the basis of the study. The first piece of information provides the hit rate (a high one). The second ensures that the hassle rate will be low. Bambauer thinks the warrant should issue. Whether or not you agree, her article points the way to interpreting the Fourth Amendment in a way that better regulates old techniques and provides a methodology for evaluating new ones.
May 3, 2016 Mary Fan
To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.
Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.
Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity.
Klingele notes the strategic decision to get buy-in from states by offering a technical rather than normative pitch about the merits of evidence-based correctional practices in lieu of human warehousing. While the strategy has been successful, Klingele calls attention to the sacrifice about confronting deeper values questions. She writes:
[P]olicymakers from across the political spectrum have adopted evidence-based correctional practices because they promise financial savings, increased efficiency and “scientifically proven” results – not necessarily because they believe current correctional practices are morally unjustified. . . . The problem is that the cost of maintaining buy-in from a broad range of policymakers has been neglect of a deeper conversation about the goals of the correctional system, and the uses to which new evidence-based tools will be put. . . . But there are no shortcuts to cultural change. (P. 133.)
Fundamentally, evidence-based correctional practices decide the fate of human beings, not “depersonalized ‘risks.’” Klingele argues that we should openly acknowledge moral values such as fairness and kindness and not obscure or try to recharacterize them as evidence-based.
Klingele terms the revival of rehabilitation neorehabilitation and identifies two strains: humanitarian and scientific. Scientific neorehabilitationism supplies the evidence base to identify effective interventions. Humanitarian neorehabilitationists value rehabilitative efforts even if they do not yield measurable lasting indicia of effectiveness because of the signaling about human dignity, worth and the need to mitigate penal harshness. At bottom, Klingele appears to be a humanitarian neorehabilitationist.
She values the dignity of the individual human and worries that the discourse of evidence-based practices will simply be the preservation by transformation of what Malcolm Feeley and Jonathan Simon termed the new penology in the early 1990s. This approach deploys data about populations to better “identify and manage unruly groups” and sort people. Klingele argues that we should aim higher, beyond building better algorithms for managing and sorting people. We should judge the worth of innovations by moral and normative criteria, not just scientific measures for effectiveness.
Klingele’s call to bring values back into the evaluation is all the more noteworthy because she serves as an Associate Reporter on the American Law Institute’s Model Penal Code Sentencing revision. She has an excellent vantage point to help shape future corrections policy. We are fortunate that someone able to elegantly navigate and translate between the worlds of scientific and normative evaluation is playing such an important role in helping chart the future.
Apr 6, 2016 Mario Barnes
“I Do for My Kids” is a timely and thoughtful empirical exploration of racialized access to justice issues with within family courts. Why then, one might ask, should it provide the basis for a jot in the area of criminal law? The answer has to do with the punitive means some jurisdictions are utilizing to enforce the payment of child support obligations.
Using original research, including in-person, ethnographic observations and interviews at multiple sites, the authors detail how “[c]ivil incarceration pursuant to an order of contempt is commonly used as a remedy to enforce child support orders against indigent noncustodial parents.” (P. 3035.) In this work, Professor Brito and her co-investigators, paint a riveting but disturbing portrait of how low-income—and typically black—fathers must negotiate the demands of law and identity within the space of child support enforcement hearings.
This rich work operates on multiple levels. First, it serves as another example of how civil contempt proceedings and detentions have become increasingly punitive. Second, like the criminal justice system these civil proceedings appear to be mimicking, they deploy identity tropes and unreasonable expectations with regard to the means and opportunities of certain noncustodial fathers. As such, when civil incarceration is ordered, is often seamlessly tied to the race and class status of the obligors. Given the moral condemnation that attaches to “deadbeat dads” and the unbound nature of civil incarceration, these practices become another method punishing or “criminalizing” raced and gendered poverty.
The study referenced in the article investigates the operation of child support enforcement hearings in two states, and focuses upon civil contempt proceedings in State A. Incarceration for contempt in State A involves actions by child support attorneys and family commissioners culminating in recommending a circuit court judge issue a contempt order. Failure to comply with the order results in commitment to county jail, unless the contemnor can meet “purge” conditions. One such condition would be to bring a support arrearage current. Civil contempt proceedings require a determination that a person has “willfully violated” (P. 3036) an order to pay.
Even though the proceeding is civil in nature, willful violation operates as a criminal law mens rea term, with the obligor being found to have scienter of wrongdoing. And while we treat the jailing as if it is not punitive, this becomes another example—similar to certain administrative immigration detentions—of an uncomfortable overlap between civil and criminal deprivations of liberty. According to a forthcoming Seattle Law Review article on new forms of debt peonage by UCLA Law Professor Noah Zatz, “[I]n larger U.S. cities, a shocking 15% of African American fathers are at some point incarcerated for nonpayment of child support.” In one recent example involving disastrous consequences, when Walter Scott was killed while fleeing from an officer in North Charleston, SC, media reports indicate he feared being jailed pursuant to a bench warrant that had been issued because he owed $18,000 in back child support.
“I Do for My Kids” not only raises important questions about the nature and character of civil incarceration proceedings, it explores the racialized consequences that result from the ostensibly color-blind manner in which the proceedings are carried out. This stands as another way in which the civil process mirrors criminal practice. Much like in criminal proceedings, race is rarely, if ever, explicitly referenced in support hearings. The researchers, however, repeatedly observed mostly black men being brought in front of nearly all white judges and commissioners, to be chastised for failing to pay support. Although the fathers would routinely raise issues related to their inability to find work, these narratives were ignored in favor of commissioners and judges directing then toward ineffective jobs programs and requiring them to return later with payment or face civil contempt. (Pp. 3036-3044.)
The researchers tap into a set of rich dynamics in these interactions. First, the court actors seem to rarely listen to or really “see” the fathers. Second, they ignore the ways that race limits the fathers’ work options, especially for black fathers with criminal records. As Devah Pager’s excellent article, The Mark of the Criminal Record, supports, Blacks without criminal records are often less desirable employees than Whites with them.
Within these proceedings, then, “the specific challenges of Black men within the labor market become invisible.” (P. 3041.) Not only do family courts fail to sufficiently grapple with how race shapes the reality of these men, all of the legal actors become coopted in the colorblind narrative, such that counsel for the fathers rarely raise discrimination as an explanation for why a delinquent father has not located employment. As a result, these fathers are presented with a no-win situation: either find funds to pay—which most cannot without work—or be held in civil contempt (jailed). If one concurs that that there is little meaningful difference between civil and criminal detentions in terms of liberty deprivation, the family courts have effectively “criminalized” status.
While I was drawn to the article due to the breakdown it demonstrates between criminal and civil processes, it is also thoughtful and engaging research. For example, in addition to illuminating the disturbing practices within the hearings, the article makes claims about how blindly following colorblind leanings actually instantiates white norms. The existence of such norms, forces advocates on behalf of delinquent fathers to raise race considerations in oblique, indirect and ineffective ways.
To drive home this point, the article presents a particularly stark example in the form of the hearing in Mitchell v. Robinson. This case demonstrates how these proceedings erase reality in favor of a stock story. Not surprisingly, a similar phenomenon has been observed in the treatment of defendants in Chicago criminal courts during another long-term ethnographic project to be published by Stanford University Press in the next few weeks—Nicole Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court. In Mitchell v. Robinson, the chronically underemployed father is repeatedly instructed that he needs to get a job. The Court ignores the reality of his difficulties in gaining employment. Instead, he is described as someone needing to do better and more. Speaking out of turn, he announces in court, “I do for my kids,” then describes how he panhandled to afford a gift for his daughter—support which the court does not recognize. In this exchange, we see the power of this work. In a single moment, it marks the court’s erasure of the father’s challenges, but also his resistance to that move. I observed a similar phenomenon a decade ago in my article Black Women’s Stories and the Criminal Law, 39 U.C. Davis L. Rev. 941 (2006), where I described the criminal prosecution of my own grandmother being partially based on her status as a black woman on welfare. In uncloaking such court practices and the resistance they engender, Brito and her co-authors add to our understanding of the connections between race and access to justice issues, both in the civil and criminal context.
This is first-rate sociolegal work on a number of levels. First, it is multidisciplinary, featuring researchers trained in family law (Brito), educational policy (Wong) and social work (Pate), engaging in exciting and important field work. Second, the work leverages multiple literatures, to explicate the inner-workings of family court proceedings and enhance our understanding of how social identities inform one’s treatment in legal domains. As such, and in a manner that signals respect for the burgeoning empirical methods and Critical Race Theory (e-CRT) movement, within their analysis they borrow key insights from CRT and studies of legal consciousness. Finally, this work reinforces claims about the illusory nature of rights that were important to the agendas of legal realists and Critical Legal Studies (CLS) scholars and that have been central to CRT and sociolegal research. For example, in his foundational article Legitimizing Racial Discrimination, CLS scholar Alan Freeman demonstrated how U.S. Supreme Court decisions used anti-discrimination doctrine to instantiate inequality.
Here, the researchers similarly demonstrate how the colorblind rhetoric deployed within civil contempt and other child support proceedings actually deepens racial subordination and inequality. It is also through this type of insight that they signal the porous boundary between civil and criminal processes, both in the treatment of their legal subjects within the proceedings and the disparate and punitive nature of the outcomes.
