Can Fiscal Crises Change Our Incarceration Problem? Maybe.

Oct 17, 2011 Elizabeth Joh

Elizabeth Joh

The effect of budget cuts on criminal justice systems seems obvious enough.  Shrunken police departments result in low enforcement priorities (or non-enforcement) for non-violent offenses.  Fiscally constrained prosecutorial resources mean that some offenses will be ignored rather than prosecuted.  But what of prisons?  Certainly many prison systems around the country have suffered similar fates as police departments and prosecutor’s offices: attempting to do the same (or more) with less.  In many states, prisoners have faced even harsher conditions of confinement, including overcrowding, reduced medical attention, and fewer resources for substance abuse treatment and job training.

Yet as Mary D. Fan observes in her timely and thought-provoking Beyond Budget-Cut Criminal Justice, the economic downturn of the past few years has yielded an unexpected result: the emergence of certain penal reforms that were once thought to be politically impossible.  Many criminal justice scholars have lamented the steady rise of incarceration rates in the United States; we imprison people at a higher rate than any other country in the world.  This “incarceration stagnation,” as Fan puts it, continues despite a well-documented crime drop in the 1990s, evidence of diminishing gains as incarceration rates continue upward, and public opinion polls suggesting that a primary focus on incapacitation (rather than rehabilitation and alternatives to imprisonment) may be misguided.  Public officials have typically avoided serious solutions to the incarceration crisis, for fear of appearing “soft on crime,” and suffering the electoral consequences.  The recent recession, however, has created opportunities for legislators facing budget emergencies to explore and propose a variety of reforms.

Some of these measures are decidedly modest; about half of the states have introduced “back-end” sentence reductions in their early release and parole programs so that individual prisoners receive small adjustments in their sentences in the interest of collective fiscal savings.  Wisconsin has introduced “Taco Tuesdays” to save $2 million dollars a year by shaving off ten cents per inmate meal.  Other measures, though, are decidedly more ambitious.  Fan draws upon many examples.  In 2008, Mississippi amended a law requiring prisoners to serve 85 percent of their sentences, so that parole boards could decide to release prisoners after serving 25 percent of their sentences.  In 2009, New York amended its law to give counties the discretion to establish “local conditional release committees” to review applicants for early release.  In 2010, the Colorado House of Representatives passed a bill with bipartisan support that lowers the penalties for several drug possession and use crimes.

So what accounts for these newer, post-recession experiments?  According to Fan, these efforts have become politically palatable because of a shift in the social meaning of penal reforms that embrace rehabilitation, community supervision, and reduced sentencing severity over ever increasing incarceration.  Penal reforms have become possible because legislators and politicians in many states have been able to convince their constituencies that these measures are cost-effective without any increased risk to the public.  This approach avoids traditional attacks on these reforms as coddling criminals or risking public safety.  Of course these reforms pose risks to their supporters as well.  Reforms face considerable public backlash when a parolee benefitting from a new early release program commits a particularly horrific and widely publicized crime.  Likewise, the political climate of some states continues to elicit strident criticism against penal reforms even in the face of budgetary emergencies.

Another, though less important, part of this emerging legal and political climate is the Supreme Court’s new willingness to apply the Eighth Amendment’s proportionality review in noncapital cases such as Graham v. Florida, 130 S. Ct. (2011), and Brown v. Plata, 131 S. Ct. 1910 (2011).  In both instances, Fan sees a renewed role for courts to intervene in penal policies at a time when penal severity is being questioned on a variety of fronts.  While Fan does not see judicial intervention as taking on a primary role in transforming criminal justice policies, she argues that this judicial interest is part of a “perfect storm” of circumstances that are making real and significant penal change possible.

So how can we ensure that a pattern of what Fan calls “rehabilitation pragmatism” gains a permanent foothold in our national conversation about criminal justice policy?  Fan suggests public officials consciously embrace a fiscally responsible, evidence-based approach to penal policies that focuses on alternatives to automatically increasing sentences and warehousing prisoners.  Unlike the rehabilitative ideal of the first half of the twentieth century, this rehabilitation pragmatism is less interested in the moral transformation of the prisoner and more concerned with cost-effective measures that nevertheless assure the public of its safety.  Fan draws our attention to a moment in our history that may well be a turning point for prison policies that desperately need political will and legislative attention.

Violence Against Men: In Prison and Out

Sep 21, 2011 Angela Harris3 comments

Angela Harris

In her hilarious book Bossypants (which is another thing I like lots but alas, falls outside my mandate), Tina Fey reveals some insider knowledge about the male-dominated world of Saturday Night Live:  “Male comedy writers piss in cups. Also, they like to pretend to rape each other. It’s . . . Don’t worry about it. It’s harmless, actually.”

I had that anecdote in mind as I began preparing to write this review of Kim Buchanan’s article. Then, in a moment of synchronicity, two days before I actually sat down at my computer to write, I ran across this joke in a free humor magazine, the kind printed on newsprint and assembled to support advertisements for local businesses in small rural towns. I apologize in advance for its offensiveness, but it completely makes my – and Buchanan’s – point.

A small little white guy is arrested and thrown in the county jail overnight on some misdemeanor charge. He notices that a huge black dude is also sharing the same cell. He tries not to make eye contact with him but much to his dismay the big black dude approaches him and announces “7 foot tall, 350 pounds, 20 inch dick, 3 pound left ball, 3 pound right ball, Turner Brown.”

The small white guy faints! The big black dude picks up the small white guy and brings him to, slapping his face and shaking him, and asks the small white guy, “What’s wrong?”

The small white guy says, “Excuse me, but what did you say?” 

The big black dude looks down and says, “7 foot tall, 350 pounds, 20 inch dick, 3 pound left ball, 3 pound right ball, my name is Turner Brown.”

The small white guy says, “Thank God! I thought you said, ‘Turn around.’”

Where do these jokes come from, and why do they persist? As its title suggests, Buchanan’s article is about prisons, but more importantly it is about “us” – about sexual violence against men, inflicted by men, and about how this violence is largely accepted and condoned not only in social life but in the law. Examining the available data, including data gathered in the wake of the recently passed Prison Rape Elimination Act (PREA), Buchanan argues that many prisons are saturated with sexual violence, ranging from harassment to the most brutal rapes. This violence, however, is not the inevitable consequence of crowding antisocial individuals together. Buchanan notes that in some prisons there is “zero tolerance” for sexual violence, and very low rates of violation. The problem is a widespread administrative culture in which sexual violence is not only tolerated by staff but incorporated into the prison order: institutions where inmates are sagely advised by staff, “Fight or fuck,” where everyone accepts that men unable to protect themselves may be “turned out,” and where gay, bisexual, and transgender victims of sexual violence may be taunted and told that they must have enjoyed it.

Buchanan’s title cleverly invokes second-wave feminism, which her article simultaneously challenges and builds upon. Second-wave feminists, seeing that violence against women was all too often treated as an inevitable feature of life that it was a woman’s responsibility to avoid, argued that all men received a benefit from this violence. The “male protection racket” told women that if you didn’t have a man of your own, you had better get one quickly, to protect you from the violence of other men. This system, of course, also worked to secure compulsory heterosexuality by announcing open season on lesbians.

Buchanan’s observations about the taken-for-grantedness of sexual violence in prison and the seeming complacency about it in the outside world eerily recall a time when women who were raped would routinely be blamed for dressing too provocatively. Her analysis of how male victims of sexual violence are similarly ignored, disbelieved, held responsible, or told that it must have been consensual clearly draws on second-wave feminist analysis. Buchanan also draws on this analysis when she shows how the world of prisons and jails is as effectively shielded from legal scrutiny as was the home in an earlier era. Then, as now, the creation of a “private” sphere free from legal intervention made room for an informal order patrolled by patriarchal violence.

But Buchanan’s article also demonstrates what second-wave feminists missed: the rules of masculinity subject men to one another as mercilessly as they subject women to men. Rather than being uniformly privileged by misogynist and homophobic violence, men are complexly burdened as well as benefitted. Moreover, the masculine order that this violence secures rules the outside world as well as the world of incarceration. Despite important decisions like Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), holding that Title VII bars same-sex sexual harassment, Buchanan notes that a kind of double standard persists in which same-sex violence and harassment perpetrated by straight men receives less scrutiny and punishment than either different-sex harassment, or same-sex harassment perpetrated by sexual minorities. Title VII as well as prison administration, it seems, secures the ability of straight-identified men to dominate other men.

Finally, Buchanan’s article is about a racialized sex/gender panic on the part of white men that crystallizes in the joke I repeated at the beginning of this review (and hundreds of variations scattered throughout popular culture). In her fascinating cultural history, Manliness and Civilization, Gail Bederman suggests that the male fantasy of vulnerability to rape by a “big black dude” may have its roots in the late nineteenth century, when white male masculinity entered a period of crisis from which it has never fully emerged. Buchanan demonstrates that the fantasy persists as a “myth” about prison rape – the belief held by experts as well as laypersons that the perpetrators of prison rape are disproportionately black and the victims disproportionately white. There is no good evidence to believe that prison rape is raced in this way. Yet the fantasy persists.

Buchanan has pulled off a tour de force of critical legal theory, seamlessly weaving together the race, gender, and sexuality dimensions of hegemonic masculinity. Her article demonstrates both the continued vitality of feminist theory and the need to think beyond second-wave analyses. And her article, most importantly, connects the “inside” and the “outside” of prison. Buchanan makes an assault on the wall that separates “them,” the criminals, from “us.” Male-on-male sexual violence, and the heteropatriarchal masculinity that produces it, is truly ours. In true feminist fashion, it is time to see that what is taken as natural and normal is contingent on a social order, not biology. And it is time to take this violence, in its sexualized, gendered, and racialized dimensions, seriously.

Subconscious Impact

Jul 18, 2011 Mary Fan

Mary Fan

He was a widely respected leader in his class, courted by some of Washington DC’s top law firms. Though a student, he already had a book of potential business top sports lawyers salivated over, plus a post working in the Senate for the summer. He was the kind of student who listened carefully when others spoke rather than speak often, but when he did speak people listened because the insights were often illuminating.

On the roadways, however, he was just another black man, driving as carefully as possible because he was a black man on the freeway. He was stopped anyway for unknown reasons, ordered out of the car, frisked like a criminal on the side of the road, and waved on his way when the roving search yielded nothing. He wondered what recourse he had to realize the protection of the criminal procedure rights we were studying, the standards that say you cannot be stopped without reasonable articulable suspicion of a crime, that you cannot be frisked without reasonable articulable suspicion that you pose a danger to officers.

His account was immensely moving to me and his fellow students. He never allowed himself to show frustration or anger. He always broadcast careful grace and gravitas, even in this account. But you could feel it. In fact, we all felt frustrated and angry for him. How could this happen to him–to be demeaned in this way, to live with de facto differential rights?

A few months later, I was moderating a panel on race and the criminal justice system at the University of Washington and listening to another person with grace and gravitas speak. He was the kind of law enforcement officer I have had the privilege of working with before, who entered a very difficult field because he passionately wanted to be one of the good guys, there for you in your time of distress. He was describing how, for police officers who strive hard and genuinely believe they are dispensing evenhanded justice, it can be deeply frustrating to be besieged by frequent accusations that they and their professional comrades are racists, are biased, and are the ones responsible for the gross racial disparities in who is targeted and incarcerated in the criminal justice system. It makes them hunker down. It may even make some officers resentful rather than receptive when undergoing training about dealing with diversity and race because the training seems like just another accusation.

When you have worked and teach in the passionately polarized domain of criminal law and procedure, and have seen stark problems entrenched in part because good people from various vantages feel besieged and beset, it makes you yearn for ways we can understand each other. How can we work with each other, without hackles raised, so that we can do more than merely face off? The status quo, desperately in need of reform, is left entrenched for lack of consensus. And why do we keep doing this, despite knowing that something is deeply wrong in a system with severe racial disparities? Is averting our gaze and enduring hurt and accusations the best that law can do?

This is why I loved the rich and fascinating body of literature on implicit social cognition from the moment I read Charles R. Lawrence’s The Id, the Ego, and Equal Protection in Reva Siegel’s constitutional law class as a 1L law student. As Jerry Kang and Mahzarin Banaji, two leaders in the law and implicit bias literature explain, “[t]he science of implicit social cognition examines those mental processes that operate without conscious awareness or conscious control” that influence our evaluation of others. A host of studies have replicated the finding of strong implicit bias against outgroup members that may clash with our consciously avowed and desired beliefs. The law and implicit bias literature has burgeoned and the insights from social psychology have been immensely productive in legal scholarship and criminal justice scholarship.¹

L. Song Richardson’s Arrest Efficiency and the Fourth Amendment is an excellent forthcoming article that applies the insights from the research on implicit bias to the Fourth Amendment legal regime and policing. I had the pleasure of hearing a fabulous talk based on the article by Song at the LatCrit Conference hosted at American University Washington College of Law in 2009 and am delighted that the article will be hitting the presses soon. The article begins with a puzzle when it comes to “arrest efficiency.” The available data on “hit rates”–the rate at which police find illegal contraband or other evidence in a stop and search–show either higher success rates in searches of whites or at least equal success rates between searches of whites and blacks. Yet data indicates that police target blacks at higher rates than whites for stops and frisks. Song’s article examines the phenomenon in the context of Terry stop and frisks on the street. In a future article she will examine the phenomenon in the context of traffic stops.

Song argues that part of the reason why police persist in higher rates of less efficient searches of blacks is because of implicit bias. Song masterfully marshals the research from the social psychology literature showing how the “stereotype of blacks, especially young men, as violent, hostile, aggressive, and dangerous” permeates social perception, often at the subconscious level, to the detriment of life opportunities and civil liberties. She explains that police would be more efficient and accurate when they stop whites because they then tend to base their suspicion on more accurate indicia of suspicious activity.

Song argues that Fourth Amendment doctrine and its traditional deference to police perception needs to take into consideration the large body of evidence on how implicit bias can skew perception even without explicit bias. She argues that courts should ask for better empirical support for police inferences about suspicious activity. Song also argues that to render stops more accurate courts should hold that race is irrelevant in justifying a Terry seizure.

Applying insights from the research on implicit social cognition to policing is salutary. For the officers who hunker down when faced with what feels like another accusation, I hope we can translate implicit bias research in a way that fosters receptivity toward understanding and ameliorating subconscious impact. Perhaps it may help to avoid the term bias, which could shut down the will to listen because it may sound like another personalized accusation. The power of implicit social cognition research is to depersonalize blame, showing how subconscious impact may be a cultural problem, and how people who genuinely believe themselves to be acting nobly may exert subconscious impact. As lawyers, particularly criminal lawyers, we are all too good at pointing fingers. But to progress, perhaps the better approach is to emerge from the posture of fierce polarization and defensiveness and find ways to more accurately see and understand each other.

1. Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. Rev. 1241; Joshua Correll, The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Pers. & Soc. Psych. 1314 (2002); Scott W. Howe, The Futile Quest for Racial Neutrality in Capital Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial Discrimination, 45 Wm. & Mary L. Rev. 2083 (2004); Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016 (1988); Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005); Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471 (2008); Rory K. Little, What Federal Prosecutors Really Think: The Puzzle of Statistical Race Disparity Versus Specific Guilt, and the Specter of Timothy McVeigh, 53 DePaul L. Rev. 1591 (2004); Jeffrey J. Pokorak, Probing the Capital Prosecutor’s Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811 (1998); Yoav Sapir, Neither Intent nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 Harv. BlackLetter L.J. 127 (2003).

Rape Prosecutions and the Civil Rights Movement

Jun 9, 2011 Margareth Etienne

Margareth Etienne

In her groundbreaking book, Danielle McGuire chronicles an untold story of how criminal investigations and prosecutions in rape cases helped to ignite and shape the civil rights movement.  Contrary to the now familiar stories of cases like the Scottsboro boys or Emmet Till—cases in which the law failed to protect the lives of black men in courts and in their communities, McGuire writes about the prosecution of rape and sexual assault committed against black women.  As a historian, McGuire focuses on two important aspects of these criminal cases.  First, the cases served as bellwethers for the social and political rights of black women.  Second, they involved some of the earliest attempts to organize and mobilize churches and political groups in the fight for civil rights.

These cases are valuable to criminal law scholars as well.  They expose the deep connection between civil and human rights for women, on the one hand, and for the criminal law’s capacity to protect their bodily integrity, on the other. In other words, one important test of freedom for women everywhere—and in this case for black women—is the ability to walk “at the dark of end of the street” under protection of law.  The notion that civil rights for women were connected to the criminal law’s protection of women’s bodies was understood early by black women activists.  McGuire makes the point that the struggle to bring rape and sexual assault cases to justice has been an important, if underexplored, aspect of the civil rights movement.

Consider, for example, the 1944 rape and kidnapping case of Recy Taylor in Abbeville, Texas.  Ms. Taylor, then a young married mother and sharecropper, was walking home from church accompanied by two other church members.  Seven armed white men ordered her to get into a green Chevy alleging that they were deputized by the local sheriff to find her.  They drove her into the woods where six of the men serially gang raped the sobbing Taylor.  They then blindfolded her and abandoned her on the side of the highway where they left her to walk the long walk home.  The twenty-four year old Taylor removed her blindfold and began toward home where she immediately reported the crime to her family and to the local sheriff.  The men, some of whom were neighbors, were quickly identified.  They confessed to having had sex with the disheveled and battered Taylor but said it was consensual.

As historian McGuire attests, the sexual abuse and exploitation of black women like Taylor by white men between Reconstruction and the civil rights movement was neither unusual nor undocumented.  Black women did not keep secret their stories of victimization, and these stories soon became an important part of the politicization of black women activists and clubwomen.  McGuire cites to activists like Ida B. Wells (noting in 1892 that the “rape of helpless Negro girls, which began in slavery days, still continues without reproof from church, state or press”); and Fannie Barrier Williams (lamenting the “shameful fact” that southern women remain “still unprotected”); and Anna Julia Cooper (describing  black women’s “painful, patient, and silent toil… to gain title of the bodies of their daughters”).

What is new about McGuire’s book is the extent to which she shows how the struggle for the rule of law in criminal cases involving black female victims was an important and little know precursor of the civil rights movement.  Recy Taylor’s case is once again instructive.  A few days after Taylor’s abduction and rape, her family received a call from the then-president of the Montgomery chapter of the NAACP.  He promised to send his best investigator to Abbeville, Alabama to investigate and champion the prosecution of Taylor’s assault.  That investigator was Rosa Parks—an anti-rape activist later simplistically portrayed by civil rights historians as a tired old woman who spontaneously declined to relinquish her seat on a public bus.

As branch secretary of the NAACP, Rosa Parks was tasked with traveling throughout Alabama to document acts of brutality, intimidation and other incidents.  Following her close involvement in the defense of the Scottsboro case, Parks became especially interested in interracial rape cases. Not only did she investigate and publicize the Recy Taylor case but she also garnered national support from labor unions, women’s groups and African American groups into what was called “the strongest campaign for equal rights to be seen in a decade.” (P. 13.)

McGuire’s book relies heavily on news articles, interviews and the investigative notes of lay criminal investigators like Rosa Parks.  The stories McGuire gathers reveal a common pattern.  White men (often claiming to act with the authority of law enforcement or as an employer offering a job) lured or forcibly abducted these women as they traveled or waited in public places.   In addition to Recy Taylor, McGuire tells the stories of black women from all walks of life—young, old, married, single, maids, school teachers.  She brings to life the tragic rape stories of black southern women like Mary Poole in North Carolina, Sadie Mae Gibson in Alabama, Rosa Lee Cherry in Arkansas, Lila Belle Carter in South Carolina, Nannie Strayhorn in Virginia, Ruby Atee Pigford in Mississippi.  McGuire tells too of how each struggle for prosecution helped to ignite the civil rights movement throughout the South.

Rethinking Rape

May 25, 2011 Erin Murphy

Erin Murphy

I had just finished teaching the rape unit to my first year criminal law class when my colleague Rachel Barkow brought I. Bennett Capers’ Real Rape Too to my attention.  I know that opinions about whether and how to teach rape vary dramatically amongst faculty members, but for several reasons I have always been committed to teaching it and to encouraging candid classroom discussions.  However, one of the interesting things about teaching a topic about which social conventions are still in flux is that increasingly I find myself unintentionally steering the class to the debates of my own youth.  Having graduated in the early to mid-nineties, I came of age in the twilight of “no means no” and Take Back the Night.  Date rape had gained recognition as “real rape,” but “roofies” were sufficiently unfamiliar that President Clinton had not yet signed the first federal date rape drug law.  Understandings about sexuality, too, were still evolving.  TV’s “Friends” was considered a pathbreaking show because it depicted a group of male and female friends living together and hanging out in a (mostly platonic) way that felt very familiar to my generation but at times baffled our parents.  Gay pride was a common feature on campuses, but few of my peers had been openly out in high school and a “don’t ask, don’t tell” military policy was still considered progressive.  And when Ellen DeGeneres came out on her show in 1997, it was still a big media event.

Of course, the students I teach now are already of a different era.  They grew up hearing public discussions about the President receiving oral sex from an intern in the oval office, learned that celebrity can be reached by the “leak” of a sex tape, and laughed at bawdy gay sex jokes on “Will and Grace.”   They can have “it’s complicated” Facebook statuses, personal experience with “sexting,” and be active in gay marriage debates.  And it doesn’t stop there:  in the coming years, I’ll encounter a generation that as children flipped through Ellen and Portia’s beautiful wedding photos on the cover of People magazine, heard Senator Scott Brown publicly reveal his childhood sexual abuse, watched Kurt and Blaine’s big, very real kiss on “Glee,” and, if novelist Gary Shteyngart is to be believed, unselfconsciously wear transparent pants.

So what do these changes mean for teaching rape law?  In my experience, it means that I find myself increasingly dissatisfied with the hetero-normativity of the debates that I lead in class, and that increasingly my students are too.  I have noticed that I tend to set up discussions of rape that inevitably fall into the same pattern:  I acknowledge the existence of other kinds of rape, but tell students that we’ll focus on male-female rape given its prevalence.  Then I proceed to replicate a whole range of gendered assumptions about rape:  that fault lines occur because, consistent with cultural clues, men pursue aggressively and women demur; explore whether women’s failures to resist or vocalize opposition are byproducts of women’s socialization; talk about power; elaborate hypotheticals with slimy bosses and pushy boyfriends, and so on.

Yet as each year goes by, and each class impresses me with the diverse and divergent range of expectations and experiences that students bring to the discussion, I find my assumptions fail to speak to this generation’s expectations and experiences of both wanted and unwanted sex.  By and large, my students start from places that I never took for granted:  that women are sexual beings with their own desires, that what one wears or how one acts might suggest their sexual availability but does not decide it, and that “nice” girls (and boys) do all sorts of things.  They seem more willing to view men not just as predators out to seduce in any way possible, but as possessing their own complicated emotions and sexual identities.  And they see both women and men as operating within a larger theater of sexual expectations: a culture in which one night stands aren’t necessarily freighted with moral judgment, exploration is less risqué, same-sex relationships can be as “vanilla” or outré as heterosexual ones, and there exists greater fluidity in gender roles.  I’m not saying that they are in a whole new world from the one that I came of age in, or even that there is a unitary sentiment of an identifiable kind, but there are significant differences between many of their experiences and mine.

Enter I. Bennett Capers’s extraordinary new article, Real Rape Too. His goal, he writes, is “to bring male rape out of the footnote and into the text.”  He notes that “[R]ape law has been gendered for too long.  Originally, it was gendered in a way that tilted the scales to benefit men:  men as fathers, men as husbands, men as rapists.  Feminists were right to point out the sexism inherent in traditional rape laws in this country.  Though many . . . were wrong to view rape solely as a mechanism for male domination of women….[T]he real problem is this:  in arguing for reform, many feminist scholars have inadvertently legitimized and contributed to the very gender distinctions of which they have been so critical.  In response to one form of subordination, they have entrenched another.”

Capers goes on to explore the phenomenon of male-on-male rape.  As might be expected, he devotes significant attention to the problem of prison rape and the ways in which it is either ignored or else presented as a joke, a threat, or a deserved extralegal punishment.  But, most importantly to my mind, he also discusses male rape outside of the prison context, deftly illustrating the ways in which we as a society try to avoid calling male rape “rape,” by instead labeling it “police brutality” (Abner Louima), or “hate crimes” propelled by homophobia (the recent incidents in the Bronx), or “hazing” (fraternities, military).  Indeed, Capers criticizes the law for being candid about the possibility of male rape in only two contexts:  to provide a provocation defense to killers rebuffing homosexual advances, and to tacitly approve of using the threat of prison rape as a coercive tool for law enforcement agents and prosecutors seeking to extract confessions or pleas.

To be clear, Capers’s claim is not that male-on-male rape is the dominant form of sexual violence in our society (although he does cite statistics that show it to be more prevalent than suggested by its footnote status, especially if one considers the strong likelihood that male rapes are equally if not more underreported than their male-female counterparts.)  Rather, his point is to call attention to the ways in which acknowledging male rape might help elucidate understandings of rape in general.   To give just a few examples– he cites research that suggests that some male rape victims respond with the same kinds of “frozen helplessness” as do some female victims.  He underscores the racialized rhetoric of prison rape, which calls to mind both the historical disregard of the rape of black women as well as the specter of white women raped by black men.  And just as female rape victims worry about coming forward, fearing stigma and criticism for “asking for it,” so too are male victims reluctant to report out of concern of being labeled gay (whether correctly or incorrectly).

Capers closes by suggesting some immediate reforms:  better policing and prosecution, better data collection, and even consideration of the risk of prison rape in sentencing.  But the real insights of the article are in his exhortations to rethink rape law without reading out the experiences of male victims. For instance, Capers notes that most male-male rapists identify as heterosexual, which seems to affirm the longstanding feminist claim that rape is a crime of violence and power, not simple sexual desire.  Likewise, concepts like force, resistance, and nonconsent become less about privileging the experiences of women than about understanding the nature of unwanted sexual intimacy.  Consider the feminist project of defining rape to include “softer” forms of coercive power.  In an environment that encourages women’s sexual aggression, not to mention economic and professional power, isn’t it only natural that we might expect our students to sense some dissonance in discussions that frame the dynamic as though it were impossible for men to feel trapped by the same kinds of pressures?  And if we don’t acknowledge that possibility, isn’t it only natural for men to think that if it’s not rape when they engage in sexual activity to appease a boss or avoid the ridicule of peers or the disdain of a partner, then why should it be when women do the same?

In this respect, I was reminded of a lunch that I recently attended, at which participants intimately familiar with the issue were talking about the flak that (now Justice) Ruth Bader Ginsburg received from gender-equality advocates for occasionally representing men’s equality interests (for example, a widower’s equal right to receive social security benefits).  The point was that what was not obvious to many feminists then is perhaps more obvious now:  that there will be no true equality for women without fundamentally rethinking what it means to be a man.   Whether in the domestic, professional, or sexual sphere, redefining the feminine is itself not enough; we must also redefine the masculine.  With regard to the law of rape, then, Capers’s Real Rape Too is exceedingly welcome, if long overdue.

Reducing Reductionism

May 6, 2011 Christopher Slobogin

Christopher Slobogin

Because books chapters tend to get less exposure, scholars and policymakers might easily miss this provocative revisitation of the substance-procedure distinction in criminal cases.  Don Dripps begins his new look at this issue by recasting the traditional procedural dyad—usually dubbed inquisitorialism and adversarialism—into three distinct categories—rationalist, pluralist and reductionist.   For Dripps, rationalism, which comes closest to the usual view of the European continent’s inquisitorial process, is “the rational discovery of the historical facts and the logical application of the substantive law to the facts so found.”  Pluralism, more closely associated with the Anglo-American adversarial system, assumes that rationalism is just one of many values the criminal justice system might hope to achieve and generally not even the most important.   Reductionism is the idea that “the substance-procedure distinction is illusory” because the applicable procedural structure allows decision-makers to ignore or at least minimize the influence of offense definitions and sentencing rules. (Pp. 410-11).

Using these categories Dripps examines the oft-discussed phenomenon of convergence, the fact that criminal systems around the world are slowly moving toward one another, with European systems in particular increasing lay participation and the use of exclusionary rules.   From Dripps’ theoretical perspective, that movement is not surprising; rationalism and pluralism, he says, are much more compatible than is commonly thought. That is because either type of system will depart from a pure truth-finding mission if that mission “conflicts with the legality principle’s prohibition of extra-judicial institutional violence” or “conflicts with an extrinsic value that is very important and can be accommodated with minor damage to material proof.” (Pp. 422-23). Under the first exception, even the privilege against self-incrimination can be accepted by a rationalist to the extent it is understood as a means of ensuring that coercive interrogation practices do not become the principal means of gathering evidence.  Other evidentiary limitations—the journalist privilege, the ability of witnesses to claim a right to silence, the courts’ authority to exclude an alleged sex offense victim’s sexual history—all protect important interests, usually without preventing the state or the defense from getting at the truth in some other way, and thus might be acceptable to rationalists, as well as pluralists, under the second exception.  At the same time, pluralism’s commitment to all-lay decision-makers does not clearly undermine the search for truth.  And its willingness to exclude illegally seized evidence, which does compromise that search, is counter-balanced by the pervasiveness of plea bargaining, which is in part the result of exclusionary pressures and features an inquisitorial bureaucrat (the prosecutor) who is only rarely subject to an“appeal” (to the jury), thus providing further evidence of convergence.

To Dripps, rationalism and pluralism are not even at significant odds in their attitude toward nullification.  In addition to the negative aspect of the legality principle (which, as mentioned above, bars excessive government abuse), the rationalist adheres to a positive view of legality that requires conviction of those who are defined as guilty by statute.  But pluralists, despite explicitly eschewing positive legality, are not that much different:  their admittedly greater commitment to implementing extrinsic values through the criminal justice system does not go so far as to countenance charges and verdicts that fail to reflect the facts made relevant by statutory law.

This is where reductionism, with its conflation of substance and procedure, comes in.  Reductionism threatens both rationalists and pluralists, because it views the substance of criminal law not as something declared by the legislature but as the result of procedural machinations.  Its primary weapon is plea bargaining, where defendants intimate a desire for the cumbersome trial process in order to obtain legal verdicts that do not conform to the facts and where prosecutors over-charge and judges over-sentence to make sure negotiations take place.   The dynamic by which defendants convert procedural rights into substantive windfalls is most pronounced in the United States, which represents the pinnacle of pluralism, but Dripps points out that many rationalist-leaning European systems permit its equivalent today.  Thus, reductionism may be the real point of convergence in modern times.

Dripps finds this development troubling and trots out a number of solutions, many of which others have proffered as well:  simplifying trial procedure to lessen the pressure on prosecutors; prohibiting waiver of procedural rights; legalizing plea bargaining in a way that requires development of clear, appealable charging criteria; formalizing the penalty for going to trial so that the coerciveness of bargaining is more transparent; and imposing constitutional or other limitations on the scope of criminal liability and sanctions in an effort to curb prosecutorial discretion.   Dripps seems most drawn to the latter possibilities, because he believes that otherwise prosecutors will exercise increasingly greater power in ways that undermine both verdict accuracy and legality.  Constructing a coherent theory of criminal law based on retribution, utilitarianism or some mix thereof and forcing decision-makers to apply it in a transparent fashion, Dripps argues, will reduce procedure’s modern tendency to sabotage the system’s ability to reflect material truth as to the either the precise crime committed or the sentence that ought to be imposed.

In a recent book, Juveniles at Risk:  A Plea for Preventive Justice (Oxford University Press, 2011), Mark Fondacaro and I have accepted this challenge in the juvenile justice context.   In that setting, our justificatory theory is individual prevention, so that once it is determined a crime has been committed the key decisions to be made are about risk and risk management, not culpability and punishment, and the due process clause, not the adversarial system envisioned by the Sixth and Fifth Amendments, would govern procedure.  In this type of system, “private deals between the defense and the prosecution would not be possible . . ., since experts, monitored by a judge, would have to be involved in the risk-assessment and management process.  While some efficacy would thereby be sacrificed, the slimmed-down trial process, together with the elimination of the right to silence, might more than make up for this loss (and, given its openness relative to the bargaining process, would also improve perceived fairness, if not reliability).”  (P. 120). Because decision-makers—judges and risk experts—would be required to proceed in open court, substantive rules—defining the probability and degree of risk that permits intervention—would not be  easy to disregard.

Dripps might not agree with these specific prescriptions, even if limited to the juvenile justice system.  But they at least do not ignore the threat of reductionism, because they are based on a coherent theory of punishment and mandate a procedure that implements it.  As Dripps concludes, “[t]hose who reject reductionism, whether we work on substance or procedure, should account for the terms of trade between the two that now prevail, either by explicitly bracketing the plea-bargaining problem or by explaining how our analyses improve our understanding, or our prescriptions might improve the practice, of the system in place.” (P. 432).

Who Controls Immigration Policy?

Apr 7, 2011 Jennifer Chacón2 comments

Jennifer Chacón

The borders of immigration law are incredibly porous.  Although immigration law, strictly defined, encompasses the rules that govern the terms of admission into and exclusion or expulsion from the country, immigration law is in fact inextricably intertwined with a whole host of other legal regimes.  This includes obvious examples like naturalization and alienage laws, as well as labor law, criminal law and economic policy.  But it also includes a host of less obvious candidates.

In his recent article in the Houston Law Review, Rick Su examines an area of law that is not often thought about in conjunction with immigration law: local government law.  The connection between immigration law and local government law is not intuitive.  Since the late Nineteenth Century, courts have found that the national government has the exclusive power to regulate immigration law, and that Congress’ power to enact immigration legislation is plenary.  States and localities, therefore, must limit their own efforts to regulate immigration to areas of the law that are not preempted by Congress’ fairly comprehensive immigration regulation.  Although state and local governments recently have played a larger role in enforcing federal immigration law than has historically been the case, courts generally have rejected efforts on the part of states and localities to directly regulate immigration through their own laws.  This can be seen in the largely unsuccessful efforts of localities like Hazelton, Pennsylvania and states like Arizona to pass immigration-related ordinances that withstand constitutional scrutiny.

One might therefore assume that localities have not played any significant role in the nation’s immigration history.  But in his recent article Local Fragmentation As Immigration Regulation, Rick Su demonstrates that this is not the case.  Su’s argument is that laws governing municipal boundaries have served the function of immigration regulations at the local level.  Exploring the similarities between immigration and zoning regulations, Su argues that, “[a]side from the doctrinal connections, the two also share deep historical roots. Indeed, it can be argued that immigration and local spatial controls were envisioned as counterparts of a broader regulatory regime from the very start.”  Su at 383.

Su’s article traces the parallel development of zoning and immigration regulations from the early part of the twentieth century through the present.  The phenomenon of defining local membership and allocating benefits on the basis of such sub-national membership has deep historical roots. Su notes that local zoning regulations – which have resulted in “segregated neighborhoods and differentiated communities” have operated as a pervasive a form of “second-order immigration regulation.”  Su at 370.  While national immigration regulations operate as a “crude tool” for controlling national membership, local ordinances such as zoning ordinances serve as a more granular, sub-national form of regulatory control.

Su uses a variety of examples to make his point.  To take just one example, he explicates the indirect immigration implications of two important cases concerning school district lines – San Antonio Independent School District v. Rodriguez and Martinez v. Bynum. In Rodriguez, the Supreme Court rejected an equal protection challenge to policies that generated grossly unequal educational funding across school district lines.   Several years later, in Bynum, the court affirmed the state’s ability to make determinations concerning district residency and to limit access to education within districts on the basis of residency.  Functioning together, these two decisions allowed states and localities to draw local boundaries and parcel out educational benefits unequally between these boundaries

Significantly, as Su points out, these two decisions bookend the Supreme Court’s decision in Plyler v. Doe, in which the Supreme Court affirmed the right of undocumented immigrants to obtain free public education in grades K-12.  The Plyler decision concerned the same state regulations that were implicated in Bynum.  Bynum is understandably seen as much less constitutionally significant than Plyler when it comes to issues of educational funding for undocumented students.  Michael Olivas once wrote that by the time the Bynum case came to the Supreme Court, because of Plyler, “the more fundamental and important threshold issue had been settled; all else was detail.”  Su’s analysis is a reminder that sometimes, the devil may be in the details.  If a state is required to provide free education to undocumented K-12 students, but need not fund that education at levels comparable to the funding available in wealthier districts and if states and localities can use ordinances to zone much of the unauthorized immigrant population out of well-funded schools, it may be that the education is often worth less than meets the eye.  At a minimum, district lines become a second-order means of controlling the benefits flowing to undocumented immigrants.  Or, as Su puts it:

Seen alongside Rodriguez and Bynum, Plyler appears neither as promising as many of its advocates celebrated, nor as costly as its critics contended. Indeed, what these cases illustrate is that even while the Court was willing to undermine the symbolic sanctity of the national polity by extending its scope to include those who have been purposefully excluded, it was only willing to do so after preserving the divisions across local communities. (Su at 416).

By explicating how laws governing local membership and belonging have shaped the geography of immigration within the nation, Su demonstrates that the choice between national and local immigration regulation is a false one.  His article makes it clear that we have always had a system that has allowed for some forms of indirect immigration regulation at the local as well as the national level, and that restrictive local regimes have sometimes created or maintained the political space that allows for more liberal federal immigration and alienage policies.  Nevertheless, Su effectively demonstrates that the spacial fragmentation and inequality created by sub-federal regulations also have important and under-examined costs that bear on the immigration debate.  His article therefore serves as a cautionary reminder to immigration scholars that creating good immigration law and policy requires much greater attention to the multifaceted (and sometimes less-than-obvious) local responses to migration that are driven by and in turn help to shape federal immigration laws and policies.

One Solution to the Enigma of Victims’ Rights Theory

Jan 27, 2011 Susan Bandes1 comment

Susan Bandes

Every time I teach a course in which the role of victims in the criminal justice system comes up, I find myself explaining to my students that crime victims and their families have played a prominent role in the system only since the 1980’s—that it wasn’t always thus.  For my students, the reference is akin to a mention of the role of counsel at British common law—something that happened a long time ago and probably won’t be on the exam.   In one sense this reaction is accurate—the role of victims in the system is firmly entrenched both in law and in the public perception.   The problem is that while the role of victims expands, criminal justice theory stays frozen in the pre-victims’ rights era, with little attention to where victims fit into the adversarial framework or the goals of punishment.

Should victims have a say on whether the defendant is charged with a crime, or on the seriousness of the charges? Should the families of murder victims weigh in on whether the death penalty is warranted? Who should prevail in a conflict between prosecutor and victim, or between the needs of victims and the rights of defendants? What should happen when victims are divided on charging or sentencing issues?  It’s hard to give any good answer to those practical questions in the absence of a theory of victims’ role in the criminal process.

Criminal law continues to stick to the standard story that we punish to deter, to exact just deserts or to incapacitate. All these rationales center on what the defendant deserves or on protecting society as a whole. Where the welfare of individual victims fits into that story is rarely specified.  Although retributivist scholars have grappled with the question, they’ve had a hard time linking a theory of just deserts with a satisfying account of how much say a particular victim should have over the fate of the offender.  Victim-centered goals end up wedged uneasily into retributive frameworks.

Aya Gruber’s article, A Redistributive Theory of Criminal Law, is a bracingly provocative examination of the theoretical bases for victim-centered changes in the law.

Gruber asserts that a range of substantive and procedural doctrines, including felony murder, the attempt-completed crime divide, sentencing reforms keyed to victim harm, and the ability to give victim impact testimony, are best understood as distributive. That is, they are premised on the system’s role in securing equilibrium between punishing the offender and making individual victims whole. Her goal is not to defend this approach, but to describe what has thus far gone unarticulated so it can be evaluated in the light of day.

Gruber points out that criminal law, unlike tort law, lacks the theoretical scaffolding to guide its distributive goals.  For example, criminal law, unlike tort law, is unaccustomed to evaluating what is needed to make individual victims whole and how to balance victims’ needs against those of other parties.  Two central tenets of criminal law have until recently made such evaluation unnecessary.  The first is the principle that the prosecution acts in the name of the people, not on behalf of individual victims. Providing victims with a role in charging and sentencing decisions is in tension with this principle. The second is the principle that every human life is equally precious.  Initiatives like victim impact statements in capital cases, which, despite the Supreme Court’s assurances to the contrary, have been shown to encourage the comparative valuation of victims, are at odds with this principle.  Assuming that there is a distributive logic to victim-centered initiatives, Gruber raises important questions about where that logic should lead, and how it can be squared with traditional rationales.

In the article’s final section, Gruber considers the cultural, political and emotional forces that have led to the immense success of victim-centered initiatives in criminal cases, and to far less enthusiastic reactions to victim suffering in the tort area, especially with respect to punitive damages. Not all the parallels she draws are convincing, but the comparison is illuminating.  She also trenchantly observes that even in the criminal arena, not all victims are considered equal, and that once the criminal law begins to focus on individual victims, it begins to matter tremendously which victims evoke empathy or compassion.  She draws fruitfully on her previous work on the criminal justice system’s attitudes toward rape victims to illustrate the influence of stock stories about “true” or “deserving” victims on legal and popular notions of fault, blame and entitlement to compensation.  She argues that these stock stories of victimhood are both reinforced and relied upon by policymakers, and that we need to be more attentive to how they are constructed and for whose benefit.

Our criminal justice system has become increasingly punitive in the last several decades. As Gruber’s article reminds us, much of the change has been made in the name of victims, and we ought to look carefully at whether it has, in fact, improved victims’ lives.  This is a thoughtful, passionate exploration of the consequences of criminal law theory. I liked it a lot.

Is There A Judicial Path Out of Mass Incarceration?

Dec 22, 2010 Jonathan Simon

Jonathan Simon

American state prison systems face a problem equivalent to our once great manufacturing corporations with their unsustainable pension and health care promises to their workers and retirees.  In the case of our prison systems, the promises take the form of long and inflexible prison sentences that commit the states to funding the housing and health care of unprecedented numbers of prisoners for decades to come.  The costs of these promises, combined in many cases with the failure to provide capacity for healthcare delivery to predictably unhealthy populations, is now confronting the states, sometimes with the prodding of the federal courts, with the need to allocate an ever greater share of revenues to their correctional budgets.  In some states the share spent on prisons now exceeds that spent on higher education.  At a time of catastrophic revenue shortfalls because of the economic crisis, these costs are forcing many states for the first time in decades to consider ways to reduce prison populations. 

While this represents a sea change from nearly forty years of political consensus in support of increasing prison capacity and populations, the question of how to do it in a politically viable way now confronts state leaders with a great conundrum.  Unlike the manufacturing corporations that could use the bankruptcy process (or the threat thereof) to wring concessions from workers and retirees and thereby arrive at a sustainable level of liability, states seeking to reduce their incarceration commitments face the politically hazardous task of changing sentencing or parole laws after decades of telling voters that more prison time was necessary for public safety.

Cecilia Klingele’s article is one of the first law review articles I have encountered to directly address this new conundrum rather than treating sentencing policy from a universal and nonhistorical perspective.  Klingele has absorbed the lessons of the politics of penal populism and is seeking to develop legal strategies for dealing with it.  This article offers an incisive and convincing critique of the currently preferred path being taken by the states and offers a provocative and promising alternative. 

The preferred path forward in most states is to find ways to reduce the prison population through the back-end, i.e., by various adjustments to parole release and revocation policies that increase the number of prisoners being released before the end of their sentences and reduce the numbers being returned for parole violations.  This approach has appeal to most politicians because it avoids or at least delays having to engage the public in an explicit discussion of who needs to be in prison and for how long that changes in front-end sentencing policy would require upfront. 

Klingele argues that current strategies are likely to be insufficient and risk creating conditions for deeper levels of the kind of public fear and mistrust that led to mass incarceration in the first place.  She points out that back-end release policies place decision making power over the length of prison sentences in the hands of correctional agencies or other administrative bodies accountable to the governor.  The public sense that administrative sentencing lacked fairness and sufficient concern for community safety is part of what led to the great wave of enhanced and inflexible sentencing rules beginning in the 1970s and 1980s. Because politicians have not engaged the public in reassessing the need for so much imprisonment and are promoting these sentencing reductions in the face of massive budgetary crises, the public may believe that community safety is being undercut and thus the potential for backlash is very real.

Criminologists have recently begun to debate whether the answer to mass incarceration is to find a way to depoliticize sentencing or instead to try and create a new politics of punishment that is less committed to imprisonment.  In their important book, Punishment and Democracy: Three-Strikes and You are Out in California (2001), Frank Zimring, Gordon Hawkins and Sam Kamin made the provocative suggestion that punitive and inflexible sentencing laws like California’s 3-Strikes law, demonstrated the need to remove political control from prison sentences, much as monetary policy is insulated from political control through institutions like the Federal Reserve.  More recently, UK criminologists Ian Loader and Richard Sparks in their book, Public Criminology? (2010), have argued that insulating penal policies from democratic politics is an unacceptable loss to democratic legitimacy and that criminologists convinced of the perniciousness of our current prison policies need to engage the public in producing a new less harsh politics of crime control. 

Klingele’s article offers an intriguing alternative to cut through the dilemma of democracy and punishment.   Judicial sentence modification, is a traditional if traditionally little used mechanism that is insulated from direct politics but transparent and more likely to convince the public that community safety is not being sacrificed to administrative demands for budget cutting.   This approach allows the same court (although not necessarily the same judge) that originally sentenced a convicted offender to prison to revisit and potentially modify the sentence.  While the practice has deep historical roots, it is not used by many states and has been used very narrowly in those states that permit it.   Originally this was recognized as an inherent common law power of courts over their own sentence, but tightly restricted in the amount of time that can be allowed to expire (usually the sentence has to be altered in the same judicial term).  Some states have broadened the time frame through common law elaboration to allow motions to modify the sentence even years later in a form of “bench parole.”  Other states and the federal government provided statutory authorization for judicial sentence modification, but generally only within a relatively short time and generally only based on “new evidence” that does not include the institutional behavior of the prisoner.  In at least one state however, Maryland, a recent statute has expanded the time for filing to five years after the original sentence and further allows the court to consider not just the original record, but new information including the prisoner’s record of compliance.

Klingele argues that more states should follow the Maryland example and expand judicial sentence modification into a broader and more generalized option.  On her account sentence modification offers a number of advantages over administrative back-end mechanisms. Judicial modification would take place in open court, with notice to and participation not only by the prosecution and the victims (who are generally notified of parole hearings), but to some extent the general public as well.  Moreover, trial courts are part of the community whose safety is at stake in release decisions.  They are not subject to control by the executive branch and are institutionally oriented toward individual justice rather than budgetary considerations.  But while they improve upon administrative authorities in terms of transparency and the consideration of individual factors and local concerns, they are institutionally designed to be deliberative and focused on justice not responsive to populist demands for punitiveness.

There are good reasons to be skeptical that this approach will be sufficient by itself.  In many states judges are elected and may well feel politically exposed by having to reconsider sentences.  Sentence modification on a case-by-case basis is likely to be a slow and incremental way to reduce prison populations.  Moreover, it leaves intact the front-end sentencing laws and their embedded assumptions about the need for so many people to go to prison in the first place.  However Klingele deserves great credit for engaging in the practical question of how American states can break out of their currently inflexible commitment to mass incarceration without alienating the public.  Her approach is worthy of serious study by state policy makers.  While it may leave the bulk of the problem of over incarceration for front-end sentencing reform, the very practice of judicial modification, once started, may help create the kinds of narratives about prisoners and public safety that will in turn help produce the new politics of punishment we need for really substantial change.

A Feminist Critique of Propensity Evidence Admitted Against Indians in Sexual Assault and Child Molestation Cases

Nov 17, 2010 Myrna Raeder

Myrna Raeder

Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes,

Orenstein has been influential in applying feminist jurisprudence to evidentiary issues, not only concerning topics that are associated with women’s issues such as rape and domestic violence, but also in contexts where the link is less obvious, such as apologies by doctors. Previously, she critiqued the use of propensity evidence in No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49  Hastings L.J. 663 (1998), suggesting such evidence violates feminist values and presenting alternative evidentiary solutions to strengthening the government’s case. Like her, I view myself as a feminist who is sympathetic to the plight of victims of rape and child abuse, while remaining sensitive to issues of fairness and constitutional rights of criminal defendants. Thus, I knew this article would analyze difficult questions such as whether stereotyping of Indians² is encouraged by the propensity rules, and why these rules do not necessarily further feminist goals.

The adoption of these rules was decidedly unpopular with most academics (including me) and federal judges. The Federal Judicial Conference even wrote Congress disapproving the lifting of the prohibition against character evidence. The hostility to character evidence is based on the fear that it will shift the jury’s focus from what a defendant did in the specific case to who the defendant is. The twin evils of character evidence are typically described as overvaluation of previous bad acts because jurors assume if the defendant did it once, he must have done it again, and devaluation of the defendant’s presumption of innocence because he is a bad person.

While evidence rules concerning the introduction of prior acts on such issues as intent and lack of consent have always been applied flexibly in rape and child sexual abuse cases, and some states had retained a common law “lustful disposition” exception in child molestation cases, Rules 413 and 414 dropped any pretense that such evidence had to be narrowly construed or that jury instructions would constrain their application. Several scholars argued that such a giant step should not be taken in light of the relative rarity of sex crimes in federal court. In other words, the only sex crimes not prosecuted in state court were those committed on federal land or in “Indian Country.” None of these arguments dissuaded the proponents of the rules, who frankly admitted that they were drafted as a model for states to follow, not merely to govern the few cases that fell within federal jurisdiction.

Orenstein sets the stage by discussing what she calls the application of “Rule 403 lite,” the rule that ostensibly giving judges the power to exclude propensity evidence when unduly prejudicial. In actuality, she finds federal judges rarely preclude evidence of other sexual acts because they require defendants to demonstrate more than mere propensity to establish undue prejudice since the policy behind the rules is to highlight the probative value of propensity even when the previous acts did not result in conviction. Thus, undue prejudice must typically be supplied by the graphic nature of the previous act, or its complete dissimilarity to the charged crime. Ironically, due process attacks on these rules have failed in federal courts based on the availability of Rule 403, despite its eviscerated scope in the Rule 413-414 context. The disproportionate impact of these rules making conviction of Indians charged with sex crimes easier has been viewed by courts as a “quirk of federal jurisdiction” that cannot satisfy an equal protection challenge due in part to the lack of intentional discrimination.

Orenstein’s survey of the Rule 413-414 jurisprudence found approximately 120 cases, with about half arising from “Indian Country” jurisdiction, of which the vast majority affirmed the admission of propensity evidence under the abuse of discretion standard. Half of the remaining cases were in military court. She observes that Indians are often identifiable by their names in the federal cases, and their location in Indian Country is mentioned in the procedural history, unlike state cases where the ethnic or racial background of the defendant is not typically relevant. Orenstein does not disguise her general distaste for the propensity rules, but is particularly troubled that the jurisdictional impact on Indians is “unfair and unseemly” given that these propensity rules have not generally been adopted by the states. As a result, Indians are disproportionately subjected to the introduction of character evidence, leading to convictions in some cases where the evidence is otherwise weak, even when the previous molestations allegedly took place as long as 20 years earlier. She argues that this is a serious issue for evidence teachers who should acknowledge that Indians are appearing as child molesters with some regularity in the casebooks and class discussion. This suggestion by itself is an eye-opener that confirms the value of this article.

Orenstein views propensity evidence as reinforcing negative stereotypes of Indians as a disadvantaged and historically despised minority, thereby distracting the jury from the facts of the case. She considers propensity evidence as more problematic than admission of bad acts admitted under Rule 404(b) for issues other than character, since Rules 413-414 directly encourage the jury to think in terms of character. Thus, such evidence emphasizes the otherness of a group that has history has portrayed as “dangerous, drunk, and uncivilized.” Moreover, patronizing attitudes such as “white man’s burden” may be invoked to “civilize” Indians since many child victims are members of the defendant’s extended family, a domestic arrangement that is sometimes denigrated in the decisions. Similarly, her examination revealed gratuitous references to signs of poverty as well as negative views of mothers whose children were molested. She also found excessive references to alcoholism beyond anything relevant to describe the crimes. Indeed, Orenstein identifies some blatant examples of such stereotyping that she fears makes it easier for jurors to ignore the individual defendants in favor of adopting heuristic shortcuts that may infect the deliberative process by encouraging jurors to discount evidence that contradict negative stereotypes.

What I particularly appreciated about the article was that Orenstein did not downplay that the victims in these cases are Indian women and children who are more likely to be raped or sexually assaulted than other females in the United States. She explains that Indian women also face stereotyping that can lead to discounting their testimony, and discusses their no-win dilemma that can result in their complaints further stereotyping their entire culture. Importantly, Orenstein suggests why propensity may harm victims. She cites reports implying prosecutors appear reluctant to bring charges in sexual assault cases arising on reservations, and argues that the propensity rules may furnish a convenient reason for prosecutors to refuse cases without evidence of prior sexual crimes.

Finally, she contends that overrepresentation of Indians in federal sex crime cases may reinforce propensity thinking more generally. As previously mentioned, federal judges may find character evidence more appealing since its repeated application to negatively stereotyped Indians reinforces the view that sexual abusers do not come from every segment of society, but rather are easily identified as “others.” Victim advocates have long noted that this myth is a real hindrance to changing attitudes towards acquaintance rape, since those defendants rarely fit the stereotype of sexual predators. Thus, Orenstein’s argument turns propensity on its head, harming rather than helping rape victims because it can perpetuate the myth that sexual perpetrators are identifiable monsters, not otherwise ordinary men. Orenstein concludes by taking a quick look at propensity in military decisions. She notes that these cases appear to be somewhat less accepting of propensity evidence, but the fact that they tend to involve rape of adults, while Indian case mainly involve children may account for some of the difference, and she urges more research on this topic.

While we may never know how many cases result in acquittals when federal judges exclude propensity evidence, or conversely how many pleas result because of propensity evidence, that does not diminish the considerable presence of Indians in the propensity jurisprudence. Similarly, even if Orenstein tends to paint the worst case scenarios, they are disproportionately occurring to Indians. Most significantly, in a world where feminism is often portrayed as a monolithic movement, she offers a more nuanced feminist approach to evaluating evidentiary policy that takes both victims and defendants into account.

1. In the article, the author explains her decision to use the term “Indians” rather than Native Americans, and I have followed that same convention.