In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).
As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices.
In many respects, Kleinfeld’s central contribution in Two Cultures is not to explain European and US differences so much as to give them a philosophically informed interpretation. In short, American and European penal practices reflect very distinct but internally coherent ideas about the nature of crime, of people who commit crimes, and about the obligations of society and the state to those people. Kleinfeld suggests that the history of US/European differences can be told more cogently in terms of their very different responses to seven key ideas: immutability, devaluation, banishment, forfeiture, evil, dangerousness and dignity. Some of these ideas have their roots in religion, and others in modernist discourses like eugenics and social science, but Americans and Europeans respond to them very differently, thus the two cultures.
Dignity can serve as a summary for them all. Europeans, according to Kleinfeld have evolved a concept or value of human dignity in which basic rights of belonging inhere in the very humanity of people and thus cannot be forfeited. One only has to consider Norway’s treatment of mass murderer Anders Brevik, sentenced to 21 years for killing nearly 100 people and recently granted the opportunity to study for a university degree from his confinement. In his ground-breaking book, Harsh Justice (2003), James Whitman of Yale argued that America largely lacks a concept of dignity. Kleinfeld suggests that Americans do not lack a dignity idea, but instead have a different one, which he labels “democratic dignity.” If human dignity cannot be lost, democratic dignity can be lost rather easily, by any display of behavior or character trait that positions you as an enemy of the social peace and a betrayer of the social contract.
In my view the biggest weakness in Two Cultures is Kleinfeld’s failure to confront head on how much America’s history of slavery, colonial dispossession and anti-immigrant eugenic exclusion has shaped the construction of “democratic dignity”. To an important extent, these punitive and exclusionary features are not products of America’s democratic culture, but rather its deeply anti-democratic commitment to “whiteness as property” as Cheryl Harris brilliantly named it some years ago. To his credit, Professor Kleinfeld does not ignore the racial critique of American penality, but he seems to view it as an independent normative problem to the features he attributes to American democracy. Yet if we view “democratic dignity” as both democratic and racist in its construction we can question some of the causal significance Kleinfeld is inclined to give to violence. Are we really so different then Europe in having many more repeat or violent criminals? Or have we evolved racially normed institutions of social control that concentrate on the same populations generating the appearance of outsized recidivism rates? (See Elizabeth Hinton’s From the War on Poverty to the War on Crime (2016) for a plausible argument that concentrating on black inner city neighborhoods artificially raised the urban crime rate in the 1960s.)
Perhaps not surprisingly for a synthesis of sociology and philosophy undertaken by a criminal law scholar with a philosophical bent, the failings of Two Cultures lie in its historical and empirical sides. Fortunately, this a moment when superb scholarship on both is available (in addition to Hinton see recent books on mass incarceration by Mona Lynch (Hard Bargains: The Coercive Power of Drug Law in America’s Courts (2016)), John Pfaff (Locked In: The True Causes of Mass Incarceration — And How to Achieve Real Reform (2017)) and James Foreman (Locking Up Our Own: Crime and Punishment in Black America (2017)). Professor Kleinfeld is offering something relatively rare in contemporary legal academia: a jurisprudential methodology which can collaborate with the social science and humanities methodologies that often seem to dominate the criminal law field at this time. On this account, one which I also endorse, an important task of scholarship is to understand the ideas behind social practices and movements; not because they operate independently to shape the world, but because it is through understanding their conceptual nature that we can best trace their effects and displacements in the world. This is the sort of work that the philosopher and the historically informed interpretive sociologist or historian can do better working in collaboration then working separately.
Michael Tonry, Making American Sentencing Just, Humane, and Effective,
46 Crime & Justice: A Review of Research
(forthcoming 2017), available at SSRN
The US incarcerates a greater percentage of its people than any other country in the world—by a wide margin. Even though we have heard the statistics enough to have become inured, they still manage to shock us: more than 2 million people are behind bars and more than 5 million more live under the daily supervision of the criminal justice (on parole, probation, etc.). There have been some promising events in recent years: bi-partisan Congressional support for sentencing reform, though still no enacted legislation; state voter referendums such as California’s Proposition 47 that roll back sentences for low-level non-violent offenses; former Attorney General Holder’s directives on federal charging; both the liberal Soros Foundation and the conservative Koch Industries are funding sentencing reform initiatives.
But still, as Michael Tonry argues in his detailed and sobering policy article, these reforms are mere “nibbles at the edges” of mass incarceration and will not make a significant difference in our outrageously high prison rates. While prison rates have dipped, much of that decline is not because of meaningful sentencing reform, but rather because of the U.S. Supreme Court decision in Brown v. Plata requiring California to release 35,000 prisoners to remedy overcrowding.
Tonry argues that meaningful change in incarceration numbers requires a rollback of the policies that got us there. Furthermore, to muster the political will to make this change, reformers should base their arguments in morality, rather than in efficiency and economics. It is unjust to incarcerate people for lengthy periods of time that are wildly disproportionate to any harm they caused or are likely to cause. Tonry notes
No one should be surprised that normative arguments trump instrumental ones. The proposition that punishments should be harsher because that will better acknowledge victims’ suffering is a normative claim about what is due victims. The proposition that violent or repeat offenders have forfeited any rights to have their interest considered is a normative claim about appropriate consequences of wrongful behavior. The proposition that laws that punish minor offenses disproportionately severely are unjustifiable is a normative claim about unjust punishment. The proposition that laws that punish minority offenders unduly severely are unjustifiable is a normative claim about social justice. The proposition that no punishment should be so severe that it ignores possibilities of redemption is a normative claim about human dignity. The proposition that just sentencing systems must be individualized to take account of the details of offenses and the characteristics and culpability of individual offenders is a normative claim about punitive justice. (P. 13.)
Instrumentalist arguments don’t work. “Given a choice between doing what seems morally right and doing something else, most people prefer the morally satisfying choice, even if it cost more.” (P. 13.) And normative claims can make a difference. Tonry cites examples where normative (moral) claims trumped, for example, the research of Lawrence Bobo and Victor Thompson that whites’ support for federal law that punished crack cocaine offenses much more severely than for powder cocaine offenses “plummeted when they learned about its disproportionate effects on black offenders.” (P. 13.) (But see my caveat below.)
Tonry reviews the well documented evidence that longer prison sentences do not create a significant deterrence effect. Indeed, there is evidence that imprisonment is criminogenic. Long prison sentences cannot be justified on incapacitation grounds, either. For some kinds of offending, incarceration merely opens up an opportunity for someone else. This “replacement effect” is particularly true for drug crimes, where economic disadvantages and the risk-taking attitudes of youth result in a steady stream of would-be entrepreneurs. Furthermore, most crime is committed by young people and most people age-out of criminal offending. With draconian sentencing laws, people stay in prison long past the date at which they pose a risk of reoffending. Finally, long prison sentences cannot be justified because “rehabilitation doesn’t work.” Tonry notes that recent research demonstrates that “well-designed, well-targeted, well-resourced, and well-run treatment programs can modestly reduce later offending.” (P. 22.)
Tonry provides a step-by-step guide for the changes in sentencing that are required to make a meaningful change in incarceration going forward. He then describes what is necessary to “unwind” current levels of incarceration. He sets as his prison population goal: “the total national rate for federal and state prisons and local jails should be reduced by 2020 to the mid-1980s level of approximately 350 per 100,000 and by 2030 to the 1973 rate of 160 per 100,000.” (P. 24.)
To change incarceration rates going forward, Tonry argues for changes in policing and prosecutor charging decisions and for legislative changes in sentencing.
Prosecutors and police should create systems for informal disposition and/or treatment options for low-level offenses. Furthermore, they should create structured programs for many criminal cases that allow defendants to avoid incarceration by paying fines, participate in mediation, make restitution, or perform community service.
Legislatures should repeal “[a]ll three-strikes, mandatory minimum sentence, life without parole, truth-in-sentencing, and comparable laws.” (P. 37.) If any of these laws are retained, they should be narrowed in scope and severity. Life without parole (LWOP), if retained, should only be applied in death penalty cases. Also on the chopping block should be repeat offender statutes that sweep in a broad range of priors, including non-violent ones, and result in extraordinary sentences of 10, 20, or more years of additional imprisonment. Truth in sentencing laws that require offenders to complete 85% of their sentence before they are eligible for parole should be repealed. Lengthy sentences are not justifiable both because they are inhumane and wildly disproportionate to the harms committed, but also because people change over time. Not only do they “age-out” of certain kinds of offending, notably violent offending, but “cognitive skills, self-control, drug dependence, and employment skills are `dynamic.’ They can be changed….” (P. 34.) Young people mature. People reinvent themselves.
In addition to getting rid of these draconian sentencing laws, legislatures should : 1) create state sentencing commissions charged with creating presumptive sentencing guidelines; 2) create state parole boards and parole guidelines; 3) sub-categorize offenses according to their seriousness and create sanctions that reflect these gradations; 4) provide clear criteria for the imposition of sentences that are more severe than are authorized for ordinary cases and require, per the U.S. Supreme Court’s holding in Blakely v. Washington, that the extraordinary conduct that justifies the sentence be proven beyond a reasonable doubt; 5) and defendants should be able to appeal a sentence on the basis that it is disproportionately severe or unreasonable.
Tonry additionally argues that statutory provisions should limit the weight given to prior criminal history in determining sentences. (Tonry notes that Scandinavian countries, for example, consider prior criminal history irrelevant to imposing a sentence for most crimes.) Contrary to popular understanding, most of those sent to prison for the first time do not reoffend. Furthermore, a significant portion of those who do reoffend are guilty of property and drug crimes. These offenders are often troubled, mentally ill or drug dependent. Prior criminal histories are one of the significant drivers of racial disparity, so removing these enhancers will likely to have a positive impact on racial fairness.
To make a meaningful dent in current incarceration rates will require large scale interventions. Tonry notes that other countries have employed amnesties or mass pardons, but he rejects this approach as unlikely to be politically viable in the US. Small scale versions, based on case-by-case reviews are unlikely to have a significant effect. He concludes that what is required is that parole boards or specially created administrative agencies should be given the authority to consider the need for the continuing confinement after five years for all prisoners serving fixed terms longer than five years, or indeterminate terms, who are under the age of 35 years, and that the same review should take place after three years of imprisonment for all prisoners 35 years of age or older.
Unwinding mass incarceration will take a coordinated effort with simultaneous moves on several fronts. Tonry’s article sets out a significant part of what is required and has the added virtue of presenting a concrete, well-supported legislative blue print. It is enormously clear and helpful.
In addition, Tonry’s urging that supporters base their claims in moral values rather than in utility arguments strikes me as exactly right. Legislatures and the general public have been unmoved by the enormous cost of the prison buildup. Most of the support for the legislation that created mass incarceration has been what Tonry refers to as “pre-rational,” that is, based on emotion and believes in narratives that had little basis in fact. Narratives that illustrate the unfairness and the harms of mass incarceration or that tell redemptive stories of changed lives are likely to be more effective. Tonry’s message echoes that of the National Academy of Science 2014 report which concludes with a plea for a return to normative principles of proportionality, parsimony, social justice, and citizenship. (Tonry served on the Committee that authored the Report.)
And this is where I hit the one limitation of Tonry’s otherwise wonderful article. A great deal of research demonstrates that the politics of race and implicit race bias, particularly against African Americans, played a significant role in the buildup of what Beth Richie (2012) refers to as “prison nation” (see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness). (There is a rich body of scholarship, both legal and scientific, on the importance of racial bias – both overt and implicit – to outcomes in policing, judging, conviction, sentencing, re-entry, and prisoner treatment.) A recent Marquette Law School poll underscores the continuing importance of racial bias as a major impediment to reform (O’Hear & Wheelock 2016). The poll found that racial attitudes were a significant predictor of respondents’ belief in the value of rehabilitation. Those who believed that African-Americans are held back by the historical legacy of slavery and discrimination were much more likely to agree with statements endorsing rehabilitation for criminal offenders than were respondents who agreed with statements such as –
It’s really a matter of some people not trying hard enough; if African-Americans would only try harder they could be just as well off as whites (O’Hear & Wheelock at 50).
In addition, while Republicans were more skeptical of rehabilitation when compared to Democrats, this difference fell away when racial attitudes were statistically controlled for. In other words, what drove the political party affiliation difference were racial attitudes. When racial attitudes were controlled for, Republican affiliation became a positive predictor for support for rehabilitation.
The cultural reality that links African Americans with criminality presents both an additional challenge as well as an additional urgency to Tonry’s claims about the importance of reformers centering their arguments in morality.
Cite as: Donna Coker, Dismantling Mass Incarceration
(April 3, 2017) (reviewing Michael Tonry, Making American Sentencing Just, Humane, and Effective,
46 Crime & Justice: A Review of Research
(forthcoming 2017), available at SSRN), https://crim.jotwell.com/dismantling-mass-incarceration/
Back in the heady days after Mapp imposed the exclusionary rule on the states, Yale Kamisar made a prescient pronouncement: once the rule is framed as a way to deter police misconduct, instead of a way to preserve the integrity of the judicial system and its verdict, the fourth amendment loses. The benefits of deterring the police always seem to pale in comparison to the need to convict wrongdoers. And once the rule is tied to predicting police behavior, the situations in which courts predict the police will actually be deterred become fewer and fewer. And, ironically, once the rule is framed as a limit on the police in particular, it begins to feel very unfair to single the police out for criticism. Alice Ristroph argues that the erosion of the exclusionary rule can be traced to a larger problem: the misguided notion that regulating the police is the primary focus of the fourth, fifth and sixth amendments.
One important focus of criminal procedure scholarship over the last several years has been the inadequacy of constitutional litigation as a tool for regulating police. Ristroph takes up the inverse question: why should police regulation be the main focus of constitutional criminal procedure? She argues that the amendments limiting investigatory power were never meant to focus on the police in isolation (indeed, when the amendments were adopted, professional police forces as we know them today did not even exist). Instead, they are meant to enforce individual rights against government overreach.
As Ristroph points out, state coercion is typically more complex than the actions of a single government agent—or agency. To separate policing from prosecution from adjudication from punishment serves to artificially atomize an interconnected course of governmental conduct. She argues that the main goal of the fourth, fifth and sixth amendments is to regulate the whole chain of events that may land a defendant in prison. The goal is to ensure that convictions satisfy the conditions for imposing punishment—only one of which is guilt.
Especially valuable is Ristroph’s reminder that constitutional litigation, though not the best venue for top-down reform, serves important goals of its own—and that the regime of suppression motions can be celebrated for its strengths even as we acknowledge its limits. Motions to suppress evidence in case after case may be a clunky and inefficient way to facilitate reform. But they do provide a forum to individuals who wish to challenge state coercion, and who generally have few others avenues for protest—and to do with the assistance of a lawyer. They do, even when unsuccessful, impel judges to consider and articulate publicly the reasons supporting their rulings.
In short, Ristroph celebrates the assertion of fourth, fifth and sixth amendment rights as a form of resistance to power. The shift of emphasis to a resistance rationale is not mere window dressing. One of the most dispiriting trends in this jurisprudence is the Supreme Court’s refusal to credit the coercion inherent in state-citizen encounters. As Ristroph says, “across the doctrines of seizures, consent searches, and waivers of rights at interrogation, we see the Court contemplating resistance, and foreclosing as much of it as possible.” To assert the right to resist unlawful action without crossing the line (legally or psychologically) and provoking serious consequences is an increasingly delicate and perilous task. She would welcome changes in consent law and other doctrines to better reflect the imbalance of power. But more important, she advocates a more robust debate about the proper balance between state power and individual resistance.
When a sanction as massive and punitive as deportation is triggered by a criminal sentence, it is all but inevitable that the system responsible for processing and administering the criminal sentence will be transformed by its proximity to this substantial “collateral” effect. Mona Lynch’s Backpacking the Border: The Intersection of Drug and Immigration Prosecutions in a High Volume U.S. Court, provides new and important insights into the nature and degree of this transformative effect. In her Backpacking article, she illustrates how drug prosecutions in one high-volume U.S. district court along the southern border have ceased to be driven by the presumptive goal of deterring and punishing drug crimes at all; instead, they operate almost entirely in the service of migration control objectives. “[I]mmigration policy has become so criminalized here that the immigrant status rather than criminal status of the defendants in drug cases drives the adjudicatory logics and practices.” (P. 5.)
Lynch’s article is the product of a comparative qualitative field research study that she conducted in four federal district court jurisdictions around the United States. She conducted in-depth interviews and engaged in direct observation of court proceedings, “supplemented by analysis of social artifacts and secondary source data.” (P. 5.) Her particular interest was finding out how drug cases are selected and adjudicated in the federal court system, and her focus was on legal process rather than legal outcomes. By analyzing four distinct jurisdictions, she hoped to see how local courtroom actors in distinct contexts “conceptualize and shape outcomes.” Id. This particular paper draws from her work in “the Southwestern district,” which is one of the highest-volume federal district courts in the country, which has a caseload of primarily drug and immigration crimes. While she noted local variations in all four of the districts she studied, “all three of the non-border districts had modes of adjudicating cases that bore resemblance to each other and that diverged considerably from” the southwestern border district that she studied. (P. 6.)
In other districts, drug dealing was the trigger for federal intervention, including in cases involving small, street-level distribution—cases that might seem like better fits for state courts. In her two more urban districts, “those targeted for prosecution have primarily been young men of color who come from select highly policed minority neighborhoods. Even the rural district has had episodes of low-level drug law enforcement sweeps headed up by multi-jurisdictional task forces.” (P. 6.) In all three districts, prosecution is animated by a stated desire to take aim at drug trafficking offenses. “[D]rug cases were drug cases.” (P. 6.)
In contrast, in the southwestern district, drug cases were immigration cases. And there were lots of them. The district she studied processed nearly 6,600 non-petty criminal convictions in 2014, and 87% of those were for immigration or drug crimes. (P. 7.) Eighty percent of those convicted are foreign nationals. Lynch describes two possible routes to adjudication in this high-volume setting: mass-processing and individualized adjudication. In the mass-processed mode, defendants generally are charged with a “mixed complaint” that includes felony and misdemeanor charges. The defendant is offered a deal that will allow him to plead to the lesser charge with a sentence of less than 360 days in exchange for a guilty plea and waiver of sentencing procedures. Those who decline are individually processed and misdemeanor plea opportunities are taken off the table. Id. Lynch’s article provides a textured discussion of the workings of “flip flop” court in this district, (Pp. 9-11) as well as the individualized sentencing model that is used in the alternative. (Pp. 11-13.)
Given the patterns in other districts, one might expect that the misdemeanor plea options would be extended in cases involving individuals carrying small amount of drugs for apparent personal use. It almost certainly would not apply to individuals carrying up to 100 kilograms of marijuana across the border. Those individuals fit into the drug trafficking frame that appears likely to trigger federal felony prosecution in the other districts Lynch studied. But over the period from 2012 through 2013, the U.S. Attorneys in the southwestern district set a ceiling on the number of backpacking cases that could be processed as felonies, meaning that many such cases are sent to flip flop court, and a “backpacker” with up to 100 kilos of marijuana could be prosecuted as a misdemeanant. As Lynch tells us, “these defendants become part of a mass of unauthorized border-crossers who happened to be carrying backpacks of marijuana, and the imperative driving their criminal adjudication is swift and efficient resolution to get them out of the system and out of the country.” (P. 9.) Processing and sentencing in their cases (generally resulting in sentences between 60 and 240 days) were largely indistinguishable from the processing and sentencing of non-backpackers charged with misdemeanor illegal entry, who generally received sentences of around 180 days. The fast-track processing of drug offenses has generated a huge spike of drug convictions in the district. “This district’s possession convictions, alone, accounted for 83 per cent of the nation’s federal drug possession convictions.” (P. 9.)
Those who proceed to individualized sentencing, either because they refuse to take the misdemeanor plea or are not given that option, experience more traditional criminal processes, including full sentencing proceedings. This is true for both drug couriers and for individuals charged with felony illegal re-entry (as opposed to first-time entry misdemeanants.) Lynch provides detailed accounts about how those cases are processed and about the fast-track sentences that defendants typically receive in both kinds of cases. She observes that “the ironic effect of the sorting process in this system, in that for both sets of defendants—the drug couriers and the illegal re-entrants—the more rooted they had been in the United States portends a much more punitive response.” (P. 14.) Family and community ties become a reason to give harsher sentences, purportedly in order to better deter, rather than a reason to treat a defendant less harshly. Or as Lynch concisely puts it, “assimilation, which should mitigate treatment by the court, is indeed an aggravator.” (P. 17.) The system shows little interest in individual equities, and instead focuses on creating efficient territorial exclusion through criminal adjudication.
In one notable section of the paper, Lynch writes about two individualized “fast-track” plea adjudications she observed. The first was for a middle-aged returning migrant charged with an enhanced felony re-entry charge—enhanced because of a prior record of removal for an aggravated felony. The sentencing guidelines range for the offense was 57-71 months, and the prosecutor sought 42 months, largely because the defendant’s family ties generated a risk that he would “re-offend” by trying to return to them. The defendant was ultimately sentenced to 54 months plus three years “supervised release,” although it was all but inevitable that he would be deported before serving the supervision period. The second case involved a drug courier who also had a prior history of drug offenses. The sentencing guidelines range was 188-235 months (130-162 months for fast-track). Both prosecutor and defense counsel expressed concern at the extreme length of the sentence. The judge sentenced him to 63 months on the new conviction, and six months to be served consecutively for the violation of the conditions of a previous sentence. The judges added a term of four years supervised release to follow the incarceration. As Lynch observes, “the defendant’s past record in the United States set the stage for the present in the form of a sentence more than 11 times longer than his peer backpackers. And it once again paved a new future whereby any further official encounter in the United States would expose [the defendant] to the potential of life in prison.” (P. 16.) Notably, there is little difference in the sentences of the drug offender and the felony reentry defendant. The central focus in both cases was on establishing the triggering conditions for harsh future consequences for illegal re-entry.
Lynch’s conclusion harkens back to a prediction made by Anil Kalhan over a decade ago that what we are seeing is not so much the criminalization of immigration as an “immigrationization” of other laws and legal practices. Indeed, Lynch uses that very term to describe what has happened to adjudication in the southern border district. (P.17.) The central logic of all southern border prosecution is to deter the return of excludable outsiders—and this is true whether there are drugs involved or not, and whether the individual has strong ties to our community or not. Sentences are structured to foster particular immigration consequences that will be triggered by return and “the creative use of supervised release terms for defendants who will never likely be released on U.S. soil hammers home the system’s goal of deterring reentry.” (P.17.) In flip flop adjudications, processes and sentences for all defendants looked essentially the same regardless of the presence or absence of drugs, and the only people who are, in fact, treated differently are those who resist pleading guilty. The compelling reasons that drive people to migrate and commit other offenses are obscured as individuals are efficiently processed.
For the past twenty years in the United States, scholars working at the intersection of criminal law and immigration law have documented the effects that two substantial bodies of law—criminal law and immigration law—have on one another as they are drawn substantially and unevenly into each others’ orbits. The back-end collateral sanction of deportation (or “removal” to use the technical term) has an impact on whether and how criminal procedural protections operate in the context of policing, both on the streets and in the jails. It can influence county officials’ bail determinations and decision-making about access to diversionary programs. It can constrain and reshape plea negotiations, ultimately setting the stage for differential punishment. It can incentivize new forms of criminal prosecutions. It may help to explain the significant citizenship penalty in criminal sentencing.
Lynch now shows us that immigration logic can completely displace the logic of the substantive criminal law at issue in a criminal proceeding. This does indeed look like the “immigrationization” of criminal procedure. But perhaps it is not uniquely emblematic of “crimmigration.” It appears of a piece with the streamlined administration of punishment that is occurring across legal domains in the adjudication of the rights of liminal legal subjects, where punishment is deployed as little more than an efficient method of managing racialized populations deemed risky. Backpacking the Border gives a vivid sense of the new frontier, where the criminal justice system is used to manage the perceived risks posed by human beings deemed unwanted or undesirable.
Cite as: Jennifer Chacón, Criminal Law’s Borders
(January 26, 2017) (reviewing Mona Lynch, Backpacking the Border: The Intersection of Drug and Immigration Prosecutions in a High Volume U.S. Court
, 57 Brit. J. Criminol.
112 (2015)), https://crim.jotwell.com/criminal-laws-borders/
Adam Cohen has written an exhaustive account of the nexus between eugenics, racism and immigration law in the United States. Against the backdrop of the Carrie Buck case, a young, poor Catholic woman, sentenced to a colony for folks categorized as morons, imbeciles and the feebleminded, Cohen provides a stark reminder of the complicity of the Courts, scientists and policy makers in the devolvement of equality and due process for persons labeled undesirable. He reminds us that in the 19th Century “undesirable” was pinned to women who were working poor, Catholic, and not of Anglo (British) origin. These women were segregated from society until aging out of childbearing or were sterilized against their will.
The case of Buck v Bell stains not only the early history of Progressives, adherents to eugenics, but the legacy of Oliver Wendell Holmes who opined, “Three generations of imbeciles are enough,” as he upheld the forced sterilization of women. With the stroke of a pen, countless women were housed in segregated colonies, sterilized and branded for life as the result of an accident of birth and social caste.
Using the power of storytelling, Cohen peels back the layers of ethnic cleansing, which sought to purge the population of children born to women who were not part of the upper class–a class defined not only by economics, ethnicity and religion. Whilst not erecting a Wall, Congress passed legislation that first limited and then attempted to prevent the immigration of Italians and Jews from Eastern Europe; the limitation was extended to all emigres from Southern Europe.
In the 1930’s the nascent National Socialist Party sent a delegation to the U.S. to learn the mechanics of ethnic cleansing which they perfected during the start of the Holocaust. Indeed, we learn that during the Nuremberg Trials, the Nazis cited the eugenics program in America as model for the Third Reich campaign to genetically promote the “Aryan Race.”
Cohen makes clear that the eugenics movement was aimed at Caucasians thought to be genetically inferior and was supported and promoted by Northern progressives, intellectuals and professionals. Various iterations of ethnic cleansing took hold from marriage laws and practices which restricted marriage of persons who were “undesirable,” to Immigrations Laws from 1924 which increased immigration from Northern European countries while closing the door to those from Eastern and Southern Europe, to forced sterilization of young women who failed to match the profile of upper class Protestant women with ethnic roots in Northern Europe.
This book is fascinating especially in light of the language of the 2016 election. Cohen reminds that conceptions of ethnic and racial desirability were not confined to “racial” characteristics. Rather, such categories were and are a movable object. In 19th Century America objectionable and unfavorable ethnicities tracked Southern/Eastern European ancestry, while in the 21st Century the category applies to Latina, Muslim and African American.
While reading Imbeciles, I was reminded of the forced sterilizations in New York City of Latina and African American women who were on public assistance. Without their knowledge, doctors tied their tubes when they went into the hospital to give birth to their children. In 2013, 150 women were sterilized in California. The political rhetoric of the 21st Century reminds us that the Racial Integrity Act of 1924, the statute which prohibited “race mixing” and gave us Loving v. Virginia, resonates still with politicians, policy makers and junk scientists who believe that ethnic and racial cleansing is about “protecting America.”
Imbeciles is a fascinating read; it is a must read for anyone who teaches law or is an advocate for social change. It is a troubling testament to the French saying–Plus ça change, plus c’est la même chose.
The Supreme Court has increasingly relied upon the concepts of professionalism and police training when regulating police conduct under the Fourth Amendment. For the most part, however, academic interest in how the police are trained to select, encounter, seize, and search individuals on the street has remained anemic. Even the recent scholarship on implicit bias training is primarily oriented towards prescribing rather than reviewing current practices. Nancy Marcus’s article is a welcome antidote to this large gap in our legal knowledge.
Police training plays an important role in current Fourth Amendment doctrine. Since the early 1980s, the Supreme Court has engaged in the continuous, albeit intermittent, deregulation of policing. That deregulation consists in replacing external, judicial scrutiny of lots of police activity on the street with the internal review of subordinates by superior officers in each the many hundreds of police departments around the country. The Court’s deregulatory jurisprudence, which often centers around attacks on the exclusionary rule and its underlying rationale, reached its apogee in the 2006 case, Hudson v. Michigan. In Hudson, Justice Scalia, writing for the majority, insisted that:
we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers.…Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline.
Unfortunately, Justice Scalia relied on a single sentence in a single page in a single source for his evidence of training reform. Anyone who has studied—or tried to study—police training knows how disingenuous the Court’s statement was: police training is almost as fragmented as policing itself. Marcus’s article goes further: she demonstrates just how wrong Justice Scalia was to assume that police training tracks the Fourth Amendment’s demands.
Marcus argues that police training substitutes various heuristics for the text of the Fourth Amendment. These heuristics imperfectly track Fourth Amendment doctrine and obscure its rationale. She makes this important argument by focusing on one aspect of police training that has gained wide currency across a number of jurisdictions: the 21-foot rule. That rule holds that “lethal force may, and should, be used when a target is within twenty-one feet of the officer.” It states a blanket permission to kill based on one circumstance only: proximity. Treating proximity as an entitlement to shoot fails to track the spirit, rationale, or letter of Fourth Amendment jurisprudence surrounding deadly force.
Marcus also demonstrates how police training materials also ignore what Rachel Harmon has called the “social costs” of policing to the public that is policed. Policing, even in its most benign form, imposes hardships on the people stopped, searched, and interrogated on the street or in the station house. Police encounters are scary, stressful, time-consuming, and sometimes violent and destructive. Leaving this perspective out of training may increase the sense among police officers that compliance with their directives are costless, and that members of the public who refuse to comply are malicious.
Marcus demonstrates that nationally disseminated police training materials, when they do mention the relevant law, often adopt the officer’s perspective in ways that render the civilian’s perspective incomprehensible to the police. Indeed, it is worse than that: members of the public, in asserting their rights under the Fourth Amendment, may render themselves liable to be the targets of police violence. The fault lies, Marcus argues, in police training, which systematically under-emphasizes Fourth Amendment rights and over-emphasizes the permission to use force, including deadly force, to effect seizures of recalcitrant civilians.
The 21-foot rule helps explain why. The police are trained to become hyper-defensive when members of the public are within the specified circumference. Police materials that discuss the rule may not mention the Supreme Court guidance that the rule is supposed to summarize. When police materials do mention the Court’s jurisprudence, they eliminate those parts of it that present the civilian’s perspective. Thus, in lieu of training in the constitutional limits on deadly force, the police are more often presented with a simple heuristic: that they are permitted to shoot anyone who appears threatening or challenges them within that danger zone. The problem with policing is thus not a few bad apples, but a structural orientation of the police towards the use of force and to civilian obligations to comply of face that force.
It is worth emphasizing that much of the Court’s Fourth Amendment doctrine both permits and requires civilians to resist the police if they are to assert their rights. In practice, civilians must attempt to leave, decline consent to search, or refuse to speak, if they are to avoid police intrusions. Ideally, such acts of low-level resistance empower civilians as members of the political community and check police activity. So long as the civilian is not seized by the police, she is often entitled to walk or even (in more limited circumstances) run away from the police—what Marcus calls the “right to flee”—and the police have no right to stop her. For many police officers, Marcus argues, their training makes these types of resistance incomprehensible at the same time as justifying the all-too-casual deployment of deadly force to bring the non-compliant civilian to heel.
In short, Marcus’s article reveals that the assumptions animating the Court’s deregulatory jurisprudence are fundamentally mistaken. Police training on some fundamental aspects of constitutional doctrine relies on crude but widely used heuristics that supplant the sort of instruction necessary ensure a deep understanding of the Constitution or its requirements. And she persuasively argues that at least one of these heuristics, the 21-foot rule, has a deadly impact on the street.
A new book by Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court, does for criminal courts what cameras have done for police brutality. African-Americans and Latinos have been sharing their stories for decades about the terror of police harassment and brutality in their daily lives. Despite these claims, the notion of unarmed men being unreasonably and pretextually stopped, brutally beaten, and even shot unnecessarily, were regularly denied, minimized, or justified by police. At best, these instances were believed to be rare or accidental in what has been branded as our new “colorblind” or “transracial” society. In this colorblind world, discrimination—if and when it existed—was structural and unintentional. Law enforcement were not agents of racial discrimination but were trying to do a difficult job in an imperfect system. Citizen bystanders armed with cellphone cameras and police department regulations requiring officers to wear cameras have changed our perceptions in ways that personal voices and narratives by the victims themselves never did.
Similarly, racial discrimination in the criminal justice system is not a new claim. The racially disparate “outputs” of the criminal justice system—the grossly disproportional incarceration and criminal supervision rates of people of color—are impossible to ignore. In the face of alarming statistics, scholars, activists, and social critics alike have turned to explanations of structural and unintended racism. The myriad explanations put forth by critics are varied, but most have one thing in common: they support the notion that the legal decisionmakers tend to be colorblind. If racism exists, it exists outside of the criminal justice system and can be blamed on structural inequalities such as poverty and unemployment in communities of color, sentencing guidelines, racial profiling by law enforcement, or ineffective legal representation. One common explanation has been that the criminal justice system is impacted by race discrimination and inequality in other areas of society like education, housing, and healthcare, but that the criminal justice system does not itself produce racial disparity. The explanation that has lost traction over the last several years is the notion that individual professionals in the criminal courts behave in racially biased ways: that they treat black and Latino defendants differently from whites as a response to their race. With good reason, we have been reluctant to point the finger at the well-meaning and well-trained professionals in our criminal courts. This is not the type of claim one should make without proof.
Van Cleve’s book can be understood as part of the dialogue about racial disparity in criminal courts: colorblind procedures with discriminatory impacts versus intentional and discriminatory acts. It is an attempt to garner the proof of individual racist behavior in courts, one of the few facets of modern life where cameras and cellphones remain widely forbidden. She questions the claim that our courts and the professionals who inhabit them are generally colorblind. As she puts it, “this book is an empirical answer” to the question of how formally colorblind due process procedures are undermined by the legal professionals. (P. xii.)
Her book is a plea to mobilize citizens into amateur social scientists who can join her efforts to document and substantiate the narratives of discrimination of people of color in criminal courts. Consider Crook County the first installment in what she hopes to be more citizen oversight. The book is an empirical ethnographic study of Illinois’ Cook County criminal courts. Over the course of several years, Van Cleve worked with over 100 court watchers and collected over 1000 hours of observation data. The court watchers, many of whom were trained research assistants, examined the behavior of courtroom professionals. Van Cleve supplements this data with her own in-depth observations during her time working closely with prosecutor and defense attorneys’ offices. With this she can differentiate what sociologists call “front-stage” behavior from “back-stage” behavior of legal professionals.
Many of the vignettes she describes are shocking and disturbing. Van Cleve does not approach the subject with objective neutrality. Nor does she claim to. The data are presented from her own scholarly perspective and marshaled to demonstrate her anti-colorblind hypothesis. However, a strength of the book is that, like an image or video, the reader can review the material provided by the primary witness and draw her own conclusions. What happens to black defendants in Cook County criminal courts is harrowing. Van Cleve describes the “niggers by the pound” contest formerly played by prosecutors who won by maximizing convictions for the heaviest defendants and being the first to reach a tally of 4000 pounds. (P. 54) She tells the story of a judge who seemed to relish the public show of humiliating and screaming insults at an elderly black woman charged with killing her abuser. The sobbing woman begged for leniency and clung to the pole of her oxygen tank while the judge screamed at her and onlookers watched open-mouthed or laughing. (Pp. 51-52.) In another story, a defense attorney vilified his client to the judge and prosecutor, explaining that he wouldn’t represent him but for a favor to the defendant’s mother. The defendant got a plea deal based on sympathy for the attorney himself. (Pp. 106-07.) Many of these stories have racist undertones. They can be viewed as the modern criminal justice versions of the auction block in slavery, public lynchings in Jim Crow, or the post-industrial commodification of white privilege. Others may view them as examples of gallows humor, sadistic cruelty, and strategic advocacy. Every witness can decide for herself how to understand these stories, but the real benefit of Van Cleve’s book is the aggregate effect of tale after tale of these undeniably racialized events. The compilation makes the simple case that legal professionals—judges, prosecutors, defense lawyers, court officers—dispense justice in ways that are not blind to differences of race and color.
Jordan Blair Woods, LGBT Identity and Crime
, 105 Calif. L. Rev.
(forthcoming 2017), available at SSRN
I have always been fascinated by the underenforcement-overenforcement puzzle. I was thus immediately drawn to Jordan Blair Woods’s fantastic article, which analyzes this complex problem through the lens of LGBT identity. Let me explain the underenforcement-overenforcement issue: Individuals who belong to marginalized groups, such as racial and sexual minorities, disproportionately bear the brunt of crime and law enforcement. When minorities are victims of violence, especially violence motivated by bigotry, liberal advocates tend to support policies and practices that are tough on such crime. When minorities suffer police harassment, revolving door criminal justice, and mandatory sentences, liberal advocates call for police restraint, decarceration, and discretionary leniency. Is this just abject inconsistency? Not necessarily. Let’s say on block A, a white man beats up a black man, while on block B, a black man beats up a white man. The prosecutor charges the white defendant with a misdemeanor and releases him with time served, but charges the black defendant with aggravated assault, resulting in a mandatory ten-year sentence. Everyone should rightly scream foul because similar actors were treated differently on account of race, the racially privileged person received leniency, and the minority was treated harshly.
Difficulties arise when such notions of formal equality and substantive fairness translate into a legal reform agenda. One of the clear drivers of inequity in the above scenario is prosecutorial discretion, so one might propose that prosecutors always bring the most serious charge supported by the evidence. This would surely address the underpunishment of whites, but it might compound the problems of African American overpolicing. Indeed, in response to evidence showing that prosecutors disproportionately seek the death penalty in white-victim cases, race scholar Randall Kennedy once suggested that prosecutors be required to pursue capital punishment in black-victim cases, recognizing the “cost” of executing more black defendants. In my hypo, the crimes are interracial, but most violence is intraracial. Alternatively, we might be concerned with the mandatory ten-year sentence and believe that judicial discretion in sentencing would have produced justice for the black defendant. But such discretion risks disproportionately benefitting whites who harm blacks.
To complicate matters further, the categories of victim and defendant are fluid, and those who experience social and economic marginalization flow in and out of them. A singular focus on minorities as violence victims can lead to myopia about the ways that pro-prosecution reform affects minorities when they, or their loved ones, inhabit the criminal defendant category. This focus can also eschew intra-group differences, including intersections with other identities and individuals’ differing reactions to victimization. Scholars like Kennedy and Alexandra Natapoff have discussed African Americans’ complex relationship with under- and overpolicing. Feminist commentators, including Leigh Goodmark, Jamie Abrams, and myself, have analyzed female identity and criminal law, seeking to find a satisfactory path between concern for women’s widespread subordination and skepticism of the penal state. Discussion of how LGBT identity fits into this puzzle, however, has been noticeably absent from the conversation. That is, until now.
In an article that in my opinion revolutionizes LGBT and criminal law theorizing, Woods sounds a cautionary note about how past fights against homosexuality’s construction as psychopathy and newer anti-violence activism have “left us with flat understandings of LGBT offenders as sexual offenders and flat understandings of LGBT victims as hate crime victims.” Woods builds on the nascent critique of “carceral” LGBT activism set forth by Dean Spade and others (here, I draw a parallel to “carceral feminism,” a concept developed by sociologist Elizabeth Bernstein), and asserts that, after successfully challenging the decades-long regime linking LGBT identity and sexual deviance, activists focused singularly on LGBT people as victims of discriminatory violence. While this focus is understandable and laudable on many levels, it led to an impoverished account of the larger relationship between LGBT identity and criminal law.
Woods provides a genealogy of the current victim-based scholarly view through an “intellectual history” of how LGBT identity (understood historically as gay male identity) and criminal law “travelled together over time.” This history is divided into two time frames, one over a century long (1860s-1970s) and the other only a few decades (1980s-today), perhaps reflecting the rapid evolution of thought on the issue. The hundred-year story is one of sexual deviance. LGBT individuals were invisible in the U.S. criminal law for much of its history, Woods notes, except to the extent that certain same-sex “abominable” acts were criminalized. The psychologizing of homosexuality in the late nineteenth century, the scientific treatment paradigm of crime control in the early twentieth century, the development of theories of immutable psychopathy in the 1940s, and post-World War II moral panic over child sex offenses paved the way for the infamous “sexual psychopath” laws of the mid-century. Facing the choice of psychiatric treatment or criminal punishment, LGBT individuals, Woods observes, had little option but to accept the narrative of homosexuality as psychological deviance. At the same time, well-meaning criminologists supporting non-penal interventions offered sympathetic accounts of homosexuality as a product of “micro-level” problems, such as damaged family and social group dynamics, but they ignored any connections between LGBT persons’ crimes and “macro-level” social inequities like poverty and neighborhood conditions―connections that social structure theorists frequently made for other identity groups. What emerged by the 1970s, according to Woods, was a picture of a group defined by internal sexual deviance, whether such difference was benign or malign.
The second period of the intellectual history is a rapid retreat from the sexual deviance paradigm of the preceding century. LGBT activism, sexual liberationist sentiments, and the progressive 1962 revision of the Model Penal Code undermined the vitality of sodomy laws. The early part of the period also saw the abandonment of sexual psychopathy laws, removal of homosexuality from the DSM, and general move away from defining LGBT identity in terms of mental disease. Woods explains that these conditions “opened space to conceive of LGBT people in the criminal justice system in ways other than as deviant sexual offenders.” What ultimately occupied this space was a conception of LGBT identity defined, not by deviance, but by discrimination. In the 1980s and 90s, progressive criminal law theorists and anti-discrimination activists on the left and prosecutors and victims’ rights supporters on the right turned their attention to the issue of hate crimes, and violence against gays and lesbians was a “key aspect” of this growing movement. The movement proved jurisgenerative, with states widely adopting punitive hate crime legislation, and academically fecund, producing a wealth of empirical information on homophobic violence. Woods stresses that the program adopted an anti-discrimination paradigm, “namely, that a perpetrator’s discriminatory selection of a victim on the basis of the victim’s LGBT identity resulted in unique problems.” Within the criminal law, LGBT identity was again singularly meaningful, but this time its meaning was one of individual victimhood at the hands of violent hate-mongers, now conceived of as the psychological deviants. Woods fascinatingly reveals that in the Lawrence v. Texas litigation, psychological experts filed an amicus brief stressing that anti-sodomy laws reinforce the pathological anti-gay prejudice underlying hate crime.
In Woods’s telling, the frame flipped from overpolicing to underpolicing. One might ask if there is anything wrong with that. One could argue that having won the overpolicing battle against sodomy and psychopathy laws, activists were right to concentrate on battling hate crimes. The problem with that argument, according to Woods, is that it conceptualizes the world of LGBT issues in criminal law as sodomy and hate crime, when in fact there are many other―perhaps more pressing―battles to fight. The sodomy-hate crime binary has stunted the development of data on and theorizing about LGBT individuals as perpetrators of non-sex crimes and victims of non-bias crimes, and Woods devotes substantial energy to calling for more academic capital to be expended on those efforts. He envisions a critical school of LGBT criminology similar to feminist criminology. Woods also draws upon the available evidence to persuasively hypothesize that non-sodomy/hate crime issues abound: LGBT individuals disproportionately suffer from structural conditions―inequality, poverty, lack of social support―that dispose people to be perpetrators and victims of “ordinary” crimes. Moreover, one has ground to reason that, like other marginalized groups, LGBT groups are disproportionately subjected to police discrimination, harassment, and brutality.
By calling for greater breadth and introspection on the relationship between LGBT identity and criminal law and revealing that it is much “murkier” (to borrow Elizabeth Schneider’s word) than the sodomy-hate crime binary allows, Woods has contributed substantially to the scholarly discussion. But I want more. Is there more to the critique of the carceral hate crime project than saying that the project is too narrowly focused and creates an information vacuum? What does Woods surmise these new LGBT criminologists and criminal law theorists will conclude about the hate crime movement and its larger relation to LGBT justice? Should the reader take Woods’s analysis as a critique of the individualist anti-discrimination frame, a critique currently being made by left scholars in the labor context? Do his arguments resound in the feminist rejection of the victim label or progressive criminal law scholars’ objection to the victims’ rights movement? Could there be a burgeoning analysis of “governance” LGBT theory here, akin to Janet Halley’s examination of “governance feminism”? I am excited to hear what Woods and others taking up his call to action have to say about all these issues. For now, it is enough that this article exists. I believe it will be remembered for years to come as the start of something big.
Unfair begins with a reminder that medieval methods of factfinding now mocked—“fishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of water”—were employed in their era because they were understood to be cutting-edge analytical techniques. The point, which Adam Benforado drives home with startling, embarrassing force, is that our criminal justice system is in its own dark age, relying on techniques known to be inaccurate and to lead to erroneous results.
Some critiques are familiar, such as that interrogation using the Reid Technique can lead to false confessions, that there are many incompetent defense lawyers, that police and prosecutors sometimes suppress exculpatory evidence. But their unrelenting expression, from the predictable weaknesses of criminal investigation to the established disutility of certain forms of imprisonment, leaves the reputation of the system in tatters. Unfair ends with reasonable and creative, albeit politically improbable, suggestions for reform.
Unfair uses insights from cognitive science and related fields, including research by the author, to explain why our criminal justice system is often a solemn farce. Chapter 1 reports the tragic tale of David Rosenbaum, found lying incoherent on a Washington, D.C., street one evening by EMS. The paramedics jumped to the conclusion that he was drunk; doctors and nurses at the hospital relied on that diagnosis and left him essentially untreated. In fact, he had been struck in the head in the course of a robbery. Rosenbaum, a retired New York Times reporter, died; Senators Orrin Hatch and Ted Kennedy, among others, attended his funeral.
It may be consistent with intuition that public services in a big city could fail. But DNA evidence, our precious, infallible DNA, seems to be subject to the same confirmation bias. Unfair recounts a study where scientists were asked to see if a known sample matched crime scene evidence. The outcomes varied widely depending on whether those performing the test were given a backstory strongly indicating guilt.
Jurors have the luxury of not being under direct stress when making decisions. They have time to deliberate and reflect. Yet, their decisions often rest on unconscious considerations, such as the race or appearance of witnesses or parties, or on other grounds that are in fact not relevant, such as the level of confidence expressed by an eyewitness.
In what will undoubtedly be one of Unfair’s most controversial propositions, Chapter 3 expresses doubt about the existence of free will, and seeks “to eliminate the myth that poor character or an evil soul is behind criminal behavior.” It points out that many people in prison suffer from mental illness, or experienced head injuries. Some forms of misconduct seem to be genetically influenced, and the chapter outlines the theory that childhood exposure to lead explains, in whole or part, the crime rise of the 1960s and beyond. (While I admit that many criminal impulses result from forces that are not the fault of the individual or within his or her control, at the margin, I believe that many criminal impulses can be resisted.)
Unfair’s unwillingness to point the finger is bipartisan; like offenders, the criminal justice system itself does not recognize its actual motivations. For example, “the key to prosecutorial misconduct” in the sense of suppressing exculpatory evidence is surprising: “most lawyers aren’t consciously trying to cheat defendants; they’re just extremely good at deceiving themselves.” When a cop or prosecutor is trying to put a guilty person in prison, no evidence, obviously, can be exculpatory, because the person is guilty. Therefore, the rationalization might go, not disclosing an alibi witness or a no-match DNA test is suppressing mistaken rather than exculpatory evidence.
The criminal justice system officially prides itself on having no bias; “equal justice under law” is inscribed on the Supreme Court building, built in 1932, when African Americans and others could be freely excluded from the jury room and voting booth. Because various forms of cognitive bias are the natural human condition, Unfair proposes to recognize, manage, and reduce bias, instead of pretending that it does not exist. “To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity.” Perhaps the clearest evidence that no party believes this is true is the fact that all plaintiffs and defendants in serious cases will, if they have the resources, hire jury consultants to determine what demographic groups are most likely to be biased in their favor, and what kinds of arguments and evidence will most effectively trigger that bias.
Unfair’s ultimate ambition is, to the extent possible, to squeeze out the causes of inaccurate results and biased policies. Improved forensic science and investigative techniques, as well as increasingly ubiquitous video recording, will help. Unfair also recommends more attention to crime prevention, cost-effectiveness of various policies, and reintegration of former offenders into society.
Perhaps the book’s most original proposition is to use modern technology to make trials less biased. For example, instead of issuing ineffective curative instructions after improper questioning or argument, the proceedings could be recorded, and juries presented only with clean, admissible evidence.
Virtual trials could go even further. Benforado writes, “In most trials, there is no compelling reason for jurors to inspect the defendant, witness, or attorney in the flesh. And preventing jurors from doing so might yield significant benefits.” The race, ability, and appearance of lawyers, and others, has no correlation with the underlying facts, and therefore no legitimate relationship to the outcome. The system could extract the appearance, voice, race, and gender of trial participants, by using avatars or standardized voices. This would be a radical change, but deprives jurors of nothing they are entitled to know.
No one denies that the criminal justice system should be based on reason and respect for our fellow humans, but Unfair compellingly insists that to do that will require accepting some uncomfortable truths. Every lawyer and judge working in the criminal justice system should read this book. Those who take it seriously will sleep uneasily for quite some time.
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.