May 30, 2025 Jennifer Chacón
How is criminal law distinct from civil law? Standard criminal law textbook answers focus on the unique role of the state in criminal law. Violations of the criminal law are presented as actions that harm the state. The state is said to maintain a monopoly on punitive power and can deploy it in unique ways to redress these harms. In a democracy, the exercise of punitive state power purportedly channels the will of the people. These propositions are offered as justifications for the imposition of punitive sanctions that have no identical counterparts in the world of civil law, including imprisonment and even death.
Many of these fundamental propositions do not entirely hold up under close scrutiny. The state’s monopoly on punitive power has been heavily outsourced to private actors. The flaws of political and representative processes in the U.S. (and within U.S. states) mean that criminal law is an imperfect expression of the will of the people, with the result that criminal law often both mirrors and replicates the discriminatory impulses of political (and racial) majorities. Immigration detention and civil commitment both undercut the truism that incarceration is unique to the criminal context. But what of criminal prosecution? Should we understand it as the unique province of the government? Standard accounts, and decades of case law, tell us that the answer is yes. But in her immensely readable and engaging article The Past and Persistence of Private Prosecution, Emma Kaufman provides a different, and very intriguing, answer to that question.
Kaufman observes that recent scholarship has raised lots of questions about the role of private actors in policing and prisons. In contrast, the bulk of the scholarly literature presumes that prosecution retains a uniquely public character. With this article, Kaufman joins a small handful of other scholars exploring the existence and significance of private prosecutions. She notes that private prosecution is still allowed in a majority of U.S. states, and that only a quarter of criminal cases nationwide “must, as a matter of law, be managed by a public prosecutor.” (P. 92.)
In the first part of her article, Kaufman pieces together a historical account of the nineteenth century rise of the state monopoly story. Using primary and secondary course materials, she concludes that at the time that states and localities created pubic prosecutors’ offices, they did not equate this move with an assertion of a state monopoly on prosecutorial power. Kaufman explores how the distinction between these two ideas was blurred in the late nineteenth century through doctrinal and descriptive oversimplifications. (P. 110.)
In the second part of the article, Kaufman draws on a diverse range of sources to explore the persistence of private prosecution. She notes that seven states continue to allow for private prosecutions of some crimes, and that another twenty cognize a significant role for private actors in prosecutions. (Pp. 128-29.) She further observes that the prevalence of private prosecution is even greater when one accounts for the degree to which prosecutorial powers continue to be outsourced to private actors. (Pp. 131-32.) Finally, she reminds the reader how contempt and qui tam proceedings operate as additional examples of private forms of prosecution. (P. 138.)
Kaufman traces out many doctrinal implications of the continued existence of private prosecution in the U.S. She notes that it casts doubt on (or at least troubles) the doctrinal underpinnings of double jeopardy’s “dual sovereignty” notion, exceptionally broad prosecutorial disclosure obligations, Younger abstention, and Section 1983’s state action doctrine. (P. 97.) It also undercuts objections that conservative jurists have raised to the contempt doctrine in cases like Robertson v. United States ex rel. Watson, 560 U.S. 272 (2010) (Roberts, C.J., dissenting). Those objections are built upon the idea that criminal prosecution is exclusively public and exclusively the domain of public prosecutors. In the same way, Kaufman notes that the continued salience of private prosecution undercuts core assumptions of public prosecution undergirding Judge Cannon’s opinion in the Trump documents case and Justice Thomas’s concurring opinion in the Trump immunity case. (Pp. 103-05.) Her argument also raises questions about the doctrinal underpinnings of prosecutorial immunity and plea bargaining. (P. 93.) If the role of the prosecutor is not solely or uniquely public, then the extraordinary insulation that courts have accorded prosecutors’ decision-making and professional processes are more difficult to justify.
But Kaufman argues that the implications of her argument extend beyond these (already quite significant) doctrinal matters. She asserts that it has potential to reframe broader discussions around the reform of criminal legal systems.
First, she notes that the persistence and viability of private prosecution eliminates the need to equate private prosecution with victim-led prosecution. As she puts it, “nineteenth-century criminal law adopted a more capacious and in some ways much more radical notion of standing than one that simply allows victims to prosecute crimes.” (P. 93.)
Second, Kaufman suggests that the recentering of the possibility of private prosecution can allow for a more expansive thinking about appropriate remedies for criminal harms. (P. 93.) Specifically, she maps the ways in which the “public” prosecutor legitimated the police in the late nineteenth century, (P. 114.) As she explains it, “[t]he emergence of the public prosecutor with a claim to control over the criminal docket empowered the police and put them in their proper place as the first movers in a coordinated system of state-run criminal law enforcement.” (P. 115.) The notion that prosecution was a uniquely public function also legitimated the unique use of prison sentences to punish. Late nineteenth century legal opinions reflect judicial unease with private actors sentencing people to serve terms in prison. Public prosecutors assuaged this unease, and made it “possible for prison to be normalized as the natural end of the criminal process.” (P. 117.) Questioning assumptions about the publicness of prosecutions therefore allows us to question the extraordinary punitive powers that flow out of those assumptions.
Third, Kaufman argues that rethinking the accuracy of legal and descriptive claims regarding the public monopoly on prosecution also can enable new and creative approaches to the question of criminal law standing. (P. 143.) It need not just be the direct victims of crime who are empowered to enter the prosecutorial sphere, and there may be other, better options. (Kaufman provocatively points to the fact that Jeremy Bentham supported a hybrid system of concurrent public and private prosecution.) (P. 147.)
Finally, by questioning the unthinking classification of criminal law as purely public law, Kaufman generates new pathways into and around abolitionist and reformist debates that favor reducing public investment in criminal punishment, and that urge a turn toward different forms of community-based harm interventions. (P. 148.) Kaufman does not purport to offer concrete alternatives to current systems. But by questioning the link between “categorizing criminal law as quintessential public law” with a “normative commitments to good governance, progressive politics on crime control and a liberal philosophy of the state,” (P. 145), Kaufman encourages us to ask different questions about what we are doing now, and to use this new empirical understanding to guide us in thinking about what might be possible in the future.
Cite as: Jennifer Chacón,
No Monopoly, JOTWELL
(May 30, 2025) (reviewing Emma Kaufman,
The Past and Persistence of Private Prosecution, 173
Penn. L. Rev. 89 (2024)),
https://crim.jotwell.com/no-monopoly/.
May 6, 2025 SpearIt
As a decade-long contributing editor at JOTWELL criminal law, my modus operandi is to read legal scholarship with an eye to considering a piece for my annual JOTWELL review. Usually, I have several articles on my shortlist—but that was not the case this year. When I came across The Exigencies of Black Existence: The Blue Gaze, the State of Exception, & Racialized Policing in Carceral Internal Colonies by Ciji Dodds, I was hit with something different, a new prism through which to imagine the bonds between prison life and life in the ’hood; I was forced to read shocking statements that jolted me in poetic ways. It was reminiscent of when I first read Anthony Paul Farley or Angela Harris.
I was initially struck by the introduction, which pointed to the irony of Martin Luther King boulevards, which line practically every major city in the country. The ironic part is that although Dr. King was a fierce advocate of non-violence, his namesake streets are associated with violence and other vices of the ’hood, as she rhymes “[e]veryone knows to stay away from MLK.” (P. 235.) While such streets may also be associated with urban redevelopment projects in the wake of destroyed traditional Black business communities, this grim reality begins a journey into the dynamics of prison culture and its influence in preparing people for a life in prison. Statistically, it is in fact the neighborhoods where such streets are named that supply many of the people who will eventually find themselves in prison.
This startling introduction offers an overview of a type of priming that happens to people outside of prison that comes from within prison walls. For prison-culture enthusiasts, one might consider this situation as a reversal of the importation model of culture. Rather than social norms being imported into prison society, prison culture exports some norms. This point is clearly illustrated in the techniques and technologies that inform life in the ’hood: bullet-proof glass casings in convenience stores, metal bars, barbed wire fencing, surveillance cameras, and of course, police. Lots of police. The police, however, are not regular police, and instead represent a special brand who operate within “racialized states of exception” that create carceral spaces or “internal colonies, where the suspension of the rule of law has been deemed necessary to respond to America’s enduring state of emergency and national security threat, which is Black existence.” (P. 238.)
The author’s primary approach is to outline the defining characteristic of an internal colony and then to map these onto Black community spaces. Adopting Charles Pinderhughes’ notion of “internal colonialism,” the author marshals evidence to show how these characteristics pervade Black neighborhoods. Guided by the works of Frantz Fanon and Michel Foucault, the author theorizes Black spaces in America as an iteration of this type of spatial colony. The author’s argument is a straight syllogism. The article ends with a case study of Baltimore, Maryland, as an exemplar of such a carceral topography.
The author’s conceptualization of internal colonies as “a nation within a nation” is possible in large part because police effectively operate under a different set of rules. People in such communities must contend with the “blue gaze,” a concept informed by the work of Fanon, who saw the Black body as the permanent object of suspicion and guilt—as “the depository of maleficent powers.” (P. 244.) The notion of the “blue gaze” represents the way police patrol and surveil Black communities, but it also signals white supremacist power over Black bodies. The idea is also indebted conceptually to Foucault’s understanding of the panopticon, the constant surveillance that disciplines bodies outside of the prison’s walls. The enactment of the “blue gaze” occurs in states of exception, in places that feel like occupied zones, a state of perpetual emergency. Internal colonies are produced by the blue gaze and this racialized state of emergency.
Dodds’ work embodies an originality, creativity, and intellectual inquiry that advances our understanding of important legal questions involving legal theory, policing, and race studies. She convincingly shows that prisons provide the technologies and procedures for police outside of prisons. The blue gaze structures Black communities in ways that ensure that life outside of prison prepares their members for life inside. Prisons are the model for themselves. They are the blueprint for structuring the ’hood.
But the work also moonlights as a piece of literature. It injects a dose of beauty into a notoriously dull and dry genre of scholarship. It is an interdisciplinary work that showcases Professor Dodds’ deep understanding of racial policing in America, and of the corollary institutions that support such internal colonies. The author contends that for some, “to live inside of a carceral space means to live as a *citizen, with an asterisk to live knowing that you are being deprived of the Constitution while power attempts to gaslight you into believing that the Constitution contemplates and encompasses your existence.” (P. 257.)
Apr 7, 2025 Elena Larrauri
It has become sort of a truism to say that prisoners have rights, that is, they are ‘citizens behind bars’ and no longer slaves of the state. Much less attention has been devoted to how they can protect these rights. Although prisoners have access to justice, litigating from inside prison is difficult. Incarceration impedes access to counsel and access to courts, and requires substantial time, economic means, and certain knowledge. In their paper The Dutch Complaint Procedure: A ‘Picture Perfect’ Procedure?, authors Tessa Van Der Rijst and Pauline Jacobs provide a brief and clear explanation of how ‘the picture-perfect procedure’ works in practice in Dutch prisons.
Calavita’s and Jeness (2015) seminal work Appealing to Justice exhorted us to look at mechanisms inside prisons that prisoners could use to present their grievances and defend their rights in the United States. A ‘Picture Perfect’ Procedure? takes up that challenge in the Dutch context. Although in Europe there is no need to exhaust the administrative procedure before going to the Courts, the internal system of lodging a complaint still matters. Van Der Rijst and Jacobs are among the European scholars who have turned their attention to these procedures. (See also Daems and Larrauri, 2024).
One reason for the recent scholarly attention is that the European Prison Rules (Rec (2006)2-rev 20 rule70) recognize prisoners’ right to make requests and complaints to the director of the prison or to any other competent authority. Another reason is that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has spelled out what the basic principles of complaints mechanisms in prison should be, namely: availability, accessibility, confidentiality, effectiveness, and traceability.
Van Der Rijst, and Jacobs explain that the Netherlands has had a prison complaint system since the 1970s. According to the authors, this complaint system has often been referred by the CPT as a good model because:
It is available, the complaint bodies are independent, it allows complainants active participation and legal assistance, it provides redress, it is both preventive and compensatory remedy, and it offers reasonable prospects of success. (P. 2-3.)
They focus on how prisoners perceive the system, drawing upon The Life in Custody Study (van Gineken et al. 2018). The Study examined the quality of life in detention in a total of 28 prisons using a large scale survey of 4,538 detainees who were in remand or incarcerated in the first four months of 2017, examining detainees’ satisfaction with the complaint procedure. Prisoners were asked to indicate to what extent they agreed with four statements: (1) the monthly or weekly visiting officer could be reached easily, (2) the Complaint Committee took the complaint seriously, (3) the complaint was dealt with swiftly and (4) I am satisfied with how my complaint was dealt with (van Ginneken et al. 2018). Scores on these questions were relatively low: on a scale from 1 to 5 (from completely disagree to completely agree), the mean for ‘Settlement of complaints’ was a little over 2.5, score 2 reflecting somewhat disagree and score 3 reflecting neutral (whereas twelve out of the seventeen that included aspects of prison life scored higher). According to Van der Rijst and Jacobs (2022), the response to statements two and four illustrate that the issue of prisoners’ perceptions of procedural justice should receive more attention.
This discussion is particularly important because when prisoners are asked, they generally respond that their degree of satisfaction with available complaint mechanisms is extremely low (Van de Valk et al, 2022), and dissatisfaction over officials’ handling of grievances are a possible source of future prison violence. Therefore, we are witnessing reform proposals of complaint mechanisms in several different European countries (Daems and Larrauri, 2024). Sometimes these reforms tend to focus on formal aspects emphasizing only the need to provide an answer and to write down the reasons for it. However, Van der Rijst and Jacobs (2022) point out, following the research done by Jenness and Calavita (2018), that although procedural justice—how complaints are answered – certainly plays a very important role, concerns of distributive justice, the outcome of how such complaints are resolved also matter a great deal in prison. This is probably due not only to the fact of the vital importance of outcomes in prison, but also because of what a failure to deal with these requests and complaints communicates about the status of the petitioner.
The final part of the paper deals with the second challenge of the Dutch complaint procedure: the high case load of complaints. Although the number of prisoners is decreasing, the number of complaints increase continually. The authors understand that this is another reason for the dissatisfaction (as reflected in the third question of the mentioned questionnaire criticizing the speed with which officials handle complaints). Van der Rijst and Jacobs (2022) explore the possible alternative complaint resolution venues that recently have been suggested in the Netherlands by the Council for the Administration of Criminal Justice and Protection of Juveniles. They mention the use of mediation and explain how this can contribute to perceived procedural justice. They also discuss the introduction of an internal and informal complaint procedure that could deal with complaints more rapidly than the actual external committee. Finally, they consider the possible introduction of a 1.50 euro filing fee which could prevent the filing unnecessary complaints, although, according to the authors, this could negatively affect the perceived procedural justice.
The discussion of these proposals is instructive for other European countries that are struggling with how to devise a system that can deal with different categories of requests and complaints, and that need different procedures to successfully resolve these complaints (Daems and Larrauri, 2024). The establishment of a complaint system inside prison is particularly important because prisoners are totally dependent in the prison administration and are not allowed to solve even the simplest issues by themselves. The fact that a ‘right to make a request and complaint’ is recognized in many countries in the penitentiary law, but that no efficient procedure has been set to deal with them, is experienced by prisoners as a lack of ‘organizational respect’ (Hulley et al., 2012).
Finally, when no one answers the complaint inside prison, this could violate Article 13 of the European Convention of Human Rights, under which everyone whose rights have been violated have a right to an effective remedy before a national authority. Thus, in addition to moral reasons to defend prisoners’ right to have their complaints answered, we need to add an instrumental one: solving a complaint in prison might avoid further litigation before the Courts. However, we must also admit that no matter how ‘good’ or ‘effective’ the complaint system is, the difference of power is too big inside prison, and therefore to definitively diminish complaints we must reduce the main cause: living in such an unnatural environment as a closed prison.
Mar 4, 2025 Mary Fan
Andrew Guthrie Ferguson,
Generative Suspicion and the Risks of AI-Assisted Police Reports (July 17, 2024), available at
SSRN.
Humans do not enjoy the vital drudgery of paperwork, including writing reports. Increasingly, people are turning to machine learning and artificial intelligence-powered products to produce reports. Students do it. Scientists do it. Doctors might do it. And police are starting to do it too, thanks to technology companies like Axon. One of the most prescient scholars of policing and technology, Andrew Guthrie Ferguson’s recent paper, Generative Suspicion and the Risks of AI-Assisted Police Reports, offers a fascinating overview of AI-generated police reports and the potential impact on criminal practice.
Police reports might seem like dull bureaucratic minutiae. But a police report can shape a person’s fate, from whether and what charges get filed, to the plea deal that is offered, and the sentence a defendant receives. One of the first items in a criminal case for a prosecutor or defense attorney to review, the police report shapes and constrains the narrative. The report defines victims and perpetrators, provides potential impeachment material for trial, and impacts the availability of defenses. The transformation of how police reports are generated is thus important, with potential systemic impacts.
Ferguson discusses the potential ramifications of the advent of Axon’s “Draft One” product, which uses an Open AI GPT-4 Turbo model to generate police reports. Launched in April 2024, Draft One uses a large language model to process the audio captured on police body-worn cameras and fill in the details of a police report. Ferguson’s paper cautions that the AI-generated reports poses the danger of “digital poisoning” of fact-finding “by algorithmically altering the narrative.” Professor Ferguson predicts that the temptations of efficiency, including time and officer-hours savings, will drive wider adoption of AI-generated police reports.
The article begins with an exposition, useful for a non-law enforcement audience, of how Draft One works. This discussion includes valuable screenshots of what the user sees. The figures show the fill-in-the-blanks sections that still require officers to engage, somewhat, with the narrative. Another interesting screenshot shows how the software ensures officers check the story that the machine writes by inserting a nonsense detail to edit out of the narrative.
Just a few years ago, policy framers debated whether officers should have access to their body camera footage before drafting their reports because of the risk of contaminating their recollections. Cameras can capture details the officers never perceived in real time. Reviewing the footage risks officers revising their memory and accounts to fit the video.
Technology has transformed professional norms at a breathtaking pace. In a brief time, we are well past the days of worrying that people will try to conform their narratives and memories to machine data. Ferguson predicts that a future is dawning where machines will draft the narrative first. Machines do the recording and reporting work, from the body camera recording, to the AI models that convert the audio data into police reports. Officers are supposed to then read and edit the story, inserting some details.
Normatively, Ferguson’s paper cautions about the turn to AI-generated police reports. He details three clusters of concerns over the technology and then offers a critique about the impacts of this technology on both the purposes served by police reports and on key points in criminal processing.
Any discussion of the technological limitations of AI usually begins with concerns over the limitations of datasets used to train algorithms, resulting in potential errors, and the lack of algorithmic transparency. Ferguson begins here, with critiques tailored to the context of policing. For example, datasets may not capture the full heterogeneity of policing various places, such as urban versus rural contexts. He argues for greater transparency about how algorithms encode preferred and prohibited language choices.
Ferguson then turns to the risk of transcription errors, which may vary depending on accents and language choices. He also covers other interesting types of errors, such as hallucination errors, which arise when the predictive algorithm makes up facts because of predictive errors in processing patterns.
A third cluster of concerns center around how AI can transform the narrative of what happened, in potentially legally significant ways. For example, the timing of actions may affect their constitutionality, and the nuances of timing may be obscured or even altered by language choices made by the software. The inclusion of AI-generated details using predictive patterns may, for example, cover up lack of probable cause.
The theoretical portion of Ferguson’s paper delves into concerns over how AI-generated police reports can undermine the traditional purpose of such reports and affect criminal processing, from the decision whether to arrest through pretrial detention, plea bargaining or trial, and sentencing. He explains how AI-generated police reports can flatten the narrative, stunt factual development, and generate potential biases. The replacement of a person with a technology as the primary author also poses accountability and authority problems. These problems in turn impact the life cycle of criminal processing because of the important role of the police report in decisions such as pretrial detention, plea bargaining, shaping trial testimony and impeachment, and even sentencing.
The availability of AI-powered reporting may even affect the decision whether to arrest, before the initiation of a criminal case. The very reduction of the costs of human drafting removes a check on police power, Ferguson argues. The pain of doing paperwork is a check on the police decision to arrest, Ferguson observes. Without this internalization of costs, officers have less incentive to exercise their discretion to decline to arrest.
Can so much change stem from the availability of new report-assisting software? Is filling in the details of a police report using AI really much of a substantive deviation from the current formulaic process of report-writing?
As attorneys in the criminal system know from reading numerous, similar-sounding police reports, long before AI or Draft One, there was the simple copy and paste. Police report narratives often sound numbingly similar within each genre of case because of reused boilerplate language with just the date, names, and a few other details changed.
Ferguson acknowledges that a lot of report-writing often is “mostly-fill-in the blanks forms requiring minimal exposition” using drop-down menus. He notes how one police department deploying Draft One learned that it was hard to discern AI-generated reports from reports generated by the usual process because officers used a pastiche of some AI-generated material, and some material generated by longstanding methods. But he also makes a compelling theoretical case that the attribution and labor of authorship matters. AI-assisted report writing removes the authority and responsibilities of initial authorship and attribution, and associated safeguards. This well-argued article thus offers an excellent command of on-the-ground realities while offering valuable cautions about a dawning future with potentially sweeping changes.
Feb 4, 2025 Jennifer Koh
The analogies used to convey the dysfunctions of immigration adjudication to outsiders are often colorful, but not hyperbolic. The gambling game of roulette describes asylum decisionmaking, because the luck of the draw largely determines whether a noncitizen will receive asylum or not. Except, of course, in the case of “asylum-free zones,” where immigration judges simply deny almost all the time. Immigration judges decide cases that carry death penalty-like consequences with the resources of traffic court. And so on. Sarah Vendzules adds another powerful analogy to this list: zombies. More precisely, the practice of immigration adjudicators treating certain forms of evidence like zombies, irrefutable and “effectively impossible to kill.” (P. 697.)
The evidence that Vendzules interrogates is the information contained in documents produced by a noncitizen’s prior criminal law proceedings, or what she calls “criminal legal system (CLS) outputs.” Such documents include police reports, criminal complaints, sentencing reports, transcripts of various proceedings, guilty pleas, and jury verdicts, to name a few. The problem is that in the world of immigration, adjudicators treat CLS outputs as though they constitute established facts. Yet as any student of criminal procedure knows, different procedures and standards of proof in the criminal system create its many different records. Compare police reports to guilty verdicts. Police reports are famously unreliable, potentially containing “unsworn allegations,” “multiple levels of hearsay,” and “may be an amalgamation of information from several unidentified sources.” (P. 716.) Guilty verdicts after trial, on the other hand, are produced “with all the processes and protections that the system can muster.” (P. 719.)
But in immigration court, the de facto rule, as Vendzules puts it, is the following: “anything can come in.” (P. 709, italics in original.) And it’s more than simply the fact that anything can come in, it’s that CLS outputs—like zombies—come in with far more force than logic would suggest. Like zombies, CLS outputs stay alive and effectively take over certain forms of decisionmaking. Vendzules emphasizes that once an allegation of criminal activity appears in the immigration record, decisionmakers can refuse to accept contrary evidence supplied by the noncitizen as refutation. She provides examples from her experiences in immigration law practice to illustrate how immigration adjudicators have refused to consider even evidence of clients’ innocence—for instance, in the form of dismissed charges, acquittals at trial, or independent evidence such as sworn recantations from complaining witnesses. In those cases, decisionmakers have treated CLS outputs created with minimal evidentiary guardrails as sufficient bases on which to justify discretionary denials of relief. As suggested by the title, Guilty After Proven Innocent: Hidden Factfinding in Immigration Decisionmaking, the use of zombie evidence means that noncitizens remain guilty in the eyes of the immigration system even if proven innocent through evidence from outside the criminal legal system.
Vendzules uncovers how this world is possible by explaining that the immigration agency fails to understand that when immigration adjudicators consider CLS outputs, they are engaging in the process of factfinding. In reality, “hidden factfinding,” (in the title and throughout the article) describes current practice, because the immigration system—doesn’t approach said factfinding as factfinding. The Board of Immigration Appeals (an agency within the Department of Justice that adjudicates immigration court-issued removal orders) has developed this mindset through its caselaw precedent, which establishes agency practice at various adjudicatory stages with little intervention from the federal courts. Instead of seeing agency officials’ task as evaluating the reliability of the evidence before them and drawing factual conclusions based on that evidence, the agency views adjudicators as engaged in the work of “weighing factors.” (P. 713.) But by conceiving of officials’ roles as weighing factors, rather than engaging in factfinding, the decisionmaking process takes place under a “hidden cloak of discretion.” Thus, immigration adjudicators can treat “criminal complaints and police reports as absolute truth,” because they are considering discretionary factors, not finding facts based on reliable evidence (P. 713.)
Scholars have discussed the operation of discretion in administrative systems like immigration at length, but Vendzules dissects it with a level of detail that artfully exposes the conflation of issues, “squishy thinking” (P. 713) and Kafkaesque nature of reasoning in the context of CLS outputs. In doing so, Guilty After Proven Innocent also provides a vocabulary for critiquing practices that have long frustrated many advocates in the trenches.
The solution? Rather than insist on binary rules of inadmissibility, she advocates for a framework in which adjudicators evaluate the portability of records from one system (criminal) to another (immigration). Doing so would require adjudicators to engage in factfinding and account for the reliability of the document when deciding whether to treat facts in those documents as true. A contrast to the “anything can come in” standard, this proposal makes sense.
As Vendzules demonstrates, the proposed portability framework would affect a number of other aspects of immigration adjudication, largely because it would infuse otherwise discretionary standards with clearer legal standards. These areas include judicial review of immigration cases (especially constitutional claims), bond proceedings to determine whether noncitizens may be released from detention, and the still-controversial categorical approach to determining the immigration consequences of prior convictions. She also notes that the portability framework might also work for a number of legal systems outside of immigration that rely on CLS outputs, such as housing or child welfare.
Most critical analyses of immigration adjudication are based upon constitutional norms concerns. Vendzules’ approach to the convergence of the criminal and immigration systems as presenting a fundamental “evidentiary question” adds an important perspective to the collective critique (P. 706.) Although immigration continues to swirl with controversy, the issues tackled by Vendzules—how the immigration system decides cases, and the high human stakes associated with immigration—will continue to matter irrespective of political rhetoric. The article is both a stark reminder of how far removed the immigration field continues to be from normal rules of law and process as well as the possibilities for practical reform.
Jan 8, 2025 Maria Granik
Criminal law aims to hold wrongdoers accountable for the harm they cause. As Deputy Attorney General Lisa Monaco put it when delivering her 2024 White Collar Crime National Institute Address: “[a]ccountability promotes fairness, drives deterrence, and fosters respect for the rule of law.” Are prosecutors successfully holding corporate wrongdoers accountable for the crimes they commit? Most commentators answer this question in the negative. In their recent paper, Thomas and Diamantis maintain that corporate criminal law is in crisis because the sanctions currently available to prosecutors neither deter misconduct nor express the moral condemnation usually attached to criminal sanctions. The authors make a bold proposal for reform: corporate branding. Their argument for reputational sanctions that shame corporate criminals is both original and persuasive.
Thomas and Diamantis begin by establishing that corporate punishments currently in use fail to serve the goals of criminal law. Criminal fines have limited effectiveness and run the risk of becoming merely “the cost of doing business” for companies that engage in profitable misconduct. As the authors point out, there is nothing that sets these sanctions apart as especially punitive in contrast to civil fines. In fact, criminal fines are often lower than civil penalties a company might face. In addition, prosecutors have no recourse when corporate criminals cannot afford to pay those fines. Individuals can be imprisoned for failure to pay, which imposes appropriate consequences and creates deterrence. Companies, by contrast, might have their fines lowered or get the benefit of pretrial diversion agreements that require a mere promise not to engage in criminal activity again—a promise that companies often break with impunity. Similarly, probationary supervision and mandatory compliance programs are insufficiently punitive and do not adequately punish and deter corporate crime.
The authors do not shy away from the dark legacy of corporal branding, which they aim to translate into the corporate context. They provide a fascinating history of shaming and branding sanctions, from ancient Greek brand tattoos to the “scarlet letter” A used to brand women who committed adultery in colonial times, complete with illustrations of these practices. The critical distinction underlying their argument is that the corporate person is lacking a physical body and is therefore radically different from an embodied individual with respect to criminal branding practices. Thus, Thomas and Diamantis unequivocally condemn the ancient practice of branding individuals, but they draw on its purposes in creative ways to advocate for a revival of branding for corporate crime.
To be sure, shaming sanctions for individuals are dangerous and morally repugnant, but corporate persons can be a proper object of branding designed to shame and marginalize. For example, branding individual criminals—even metaphorically by attaching shaming labels to them in the form of a criminal history that prevents reintegration into society—transforms criminal conviction into a status that defines a human being. However, as Thomas and Diamantis contend, “corporations are constitutively better fit for status or propensity designations.” Another reason to view corporate branding permissible is that it need not be permanent: if a corporation has truly rehabilitated itself after conviction, the brand which affixes criminal status can be removed. In this way, it resembles something like a registration requirement for sex offenders, rather than a corporal brand, because it can be lifted once the person has been rehabilitated in the eyes of the law.
The authors then provide a thorough analysis of factors to consider when designing a criminal brand, including visibility, education, evocation, and duration. Judges and prosecutors should develop specific marks depending on the circumstances of the crime, the industry of the corporate offender, and other case-specific factors. In doing this work, justice system professionals should collaborate with communications experts who specialize in marketing and public relations campaigns. Given the case-specific nature of criminal branding sanctions, the images of marks that the authors include as illustrations are merely suggestions, but they are helpful for making their provocative argument more vivid for the reader.
One of the main reasons that criminal branding can be effective in punishing corporations is that a company’s brand or reputation is often one of its most important assets. Thomas and Diamantis estimate that “brand equity” constitutes “upward of 30 percent of public companies’ market value.” Moreover, studies show that members of Generation Z (the oldest of whom are just turning 25) are particularly attuned to the moral standing of corporations, both as consumers and as employees. As a result, shaming sanctions in the form of corporate branding may have an especially significant impact on a company’s bottom line in the coming years. If information about corporate criminal activity becomes more publicly available through branding, Gen Z will hold the criminal companies accountable by marginalizing them from the marketplace.
Marketing professionals can assist prosecutors and judges in implementing reputational sanctions such as branding. But what purpose would a criminal justice marketing campaign serve? Raising public awareness of a company’s conviction would allow consumers and employees to “boycott” corporate criminals based on the moral outrage their convictions evoke. In other words, while reformers often urge against overly retributive and emotional responses to “street” crimes, this article seeks to reactivate the public’s retributive instincts against corporate criminals. Still, they urge caution, arguing that corporate branding should serve a “legitimate criminological purpose” and should “be implemented in a way that does not cause pain or social debasement.” Attaching a criminal brand to a corporations can communicate the dangers posed by criminal actors and express condemnation of the offense while supporting victims. In the authors’ words, corporate branding can “capture the good without the bad.”
Thomas and Diamantis want to reverse the emphasis on “rehabilitation, governance, and compliance” in corporate criminal law, returning us to the adverse reputational sanctions that failed to gain traction when the U.S. Sentencing Commission introduced them in its 1992 guidelines. Whether or not readers are ready to embrace the branding proposal in all its details, this article offers an innovative solution to the corporate criminal law crisis. We might wonder whether corporate criminal branding is not simply a financial penalty by another name. As consumers and employees turn away from corporate criminals, those companies will suffer in the market. Prosecutors and judges may be reluctant to use branding for the same reason they worry about imposing crippling fines on corporations; namely, that it will impact innocent parties like employees and shareholders. Another question that the corporate branding theory invites is whether the public would in fact experience retributive emotions or embrace shaming sanctions directed at corporations. As some commentators have argued, retributive sanctions grounded in blame may be improper for non-human criminal acts. In sum, Branding Corporate Criminals offers a blueprint for a workable policy solution, while raising profound questions about the nature of corporate punishment. Anyone interested in corporate criminal law will benefit from reading this well-researched and engaging piece.
Nov 19, 2024 Jessica M. Eaglin
It is easy to privilege certain kinds of “doing” in law. From constitutional law and the courts to statutory mandates and the legislature, these are highly visible examples of law in action. As such, their effect and import are deeply studied, and criminal law is no different. Yet there are so many ways to “do” and interact with criminal law, a key takeaway from Jocelyn Simonson’s book, Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration. Because her book encourages us all to expand our understanding of “doing” law, this book is a must read for scholars of criminal law and beyond.
Simonson’s book critically centers collective action by “everyday” people in and around the criminal legal system. She argues that certain categories of collective action cumulate as examples where groups of people not ordinarily considered to be doing criminal law are “resisting mass incarceration in their neighborhoods, counties, and states.” To understand these collective actions as radical forms of contestation, Simonson describes three key concepts—justice, safety, and the people—as the ideological foundation for mass incarceration in the United States. She defines traditional notions of justice as “finding and punishing individuals who have committed wrongs or engaged in disorderly behavior.” Safety is often construed the removal of those individuals from society by labeling them as criminal. Finally, the people tends to connote a good or neutral public that excludes both those accused of crimes and those resistant to mass incarceration. Together, these concepts constitute a series of ideas and assumptions that run beneath the operation of the criminal process and legitimize mass incarceration as status quo. Though these concepts are not always stated outright, they represent a “worldview” that, according to Simonson, “serves to uphold and disguise a system of oppression.”
The heart of Simonson’s book surveys “everyday acts in courthouses and legislative chambers” across the country that demonstrate “collective energy, care, and radical thought” to contest these conceptions of justice, safety, and the people. She “unearth[s] transformative ideas that are not going away” by laying out four broad categories of collective action by those who are or have been accused of crimes and community activists resistant to mass incarceration. Simonson develops each category as a separate chapter with rich examples drawn from in-depth interviews with activists and organizers. I summarize the categories with minimal reference to the on-the-ground examples due to space limitations.
Two chapters focus on how people interact with criminal court proceedings. For the first example, Simonson considers community bail funds—a pool of money collected to free people who are jailed because they cannot pay the amount of money ordered by a judge during a pretrial bail hearing. The practice whereby the group in charge of the money redirects the funds to post bail for someone else when cases are closed has expanded as a tactic of resistance to mass incarceration from the 2010s forward. Simonson suggests this collective action constitutes a “counter-logic”—“liberty becomes more than an individual interest—it becomes a communal interest,” thus casting doubt on existing assumptions about justice, safety, and the people.
As a second example, Simonson discusses courtwatching—where various people attend or call-in to the criminal court hearings of strangers as a group. Sometimes participants wear T-shirts and often they collect information and document practices. Ultimately, this act of watching can be a form of “wielding power.” For example, a 2017 courtwatching project by the Illinois Coalition to End Money Bail led Chicago criminal courts to release additional information about their bail practices. But even if courtwatching does not change the outcome of individual cases, it contributes to everyday people developing a “collective counternarrative.” Rather than telling the story of the criminal system as a space centered on the alleged bad acts of people arrested, courtwatching gives these groups a language to articulate the violence of the courtroom.
The awareness that comes from interacting with the criminal system contributes to and enhances more involved ways to shape both individual cases and the public’s understanding of criminal law. Simonson demonstrates this point through a chapter on different forms of participatory defense. For example, participatory defense “hubs” bring community members together with the accused to investigate and sometimes create additional evidence—like packets with information about the social background of the accused—for the defense attorney. “Collective defense campaigns” involve committees who work alongside the defense to combine individual advocacy with national political education around larger issues of criminalization. Both interventions harness “the collective force of strangers who support the accused while acting in solidary with them” to build the power to change public conversation about criminal law and policy at a systemic level.
The notion of “Peoples’ Budgets” comprises Simonson’s fourth example. Some of the same groups who organize community bail funds, courtwatching, and participatory defense go a step further to engage with and shape the allocation of money to the criminal legal system vis-a-vis other types of government spending. At times, groups conduct surveys on what safety means in marginalized and criminal law-impacted neighborhoods and thereafter translate their findings to challenge the existing budget. At other times, groups develop competing budget proposals with altogether different categories of government spending. But the value add of these interventions is not simply shifting the budget. Rather, “the groups that put together Peoples’ Budgets engage in public battles over ideas about local governance that would otherwise be taken for granted.” They contest, in a visible way, assumptions about how government should provide safety and security.
Ultimately, Simonson characterizes these acts of justice as critical to challenging mass incarceration. Her project reminds that change can flow from public conversation about the meanings of justice and safety. Further, such public conversations happen over time and, importantly, occur alongside and through collective action. Projects that raise up such important acts in legal academia ensure that such moments of contestation remain vibrant in contemporary society going forward.
Oct 23, 2024 Maartje van der Woude
In her article-based dissertation, Unravelling Unauthorized Migrants’ Legal Consciousness Processes, Mieke Kox provides a comprehensive and empathetic examination of the intricate relationships between unauthorized migrants and the legal systems that govern their lives. This work is a significant contribution to the field of crimmigration—a term that captures the intersection of criminal law and immigration law—highlighting the lived experiences of unauthorized migrants in the Netherlands. Legal scholars, particularly those focused on crimmigration, will find Kox’s ethnographic approach and insights invaluable for understanding the often-overlooked human dimensions of immigration law and enforcement.
Kox’s dissertation stands out for its unique ethnographic research, which sheds light on the personal and often harrowing experiences of unauthorized migrants. By documenting these experiences, Kox offers a critical perspective on how legal frameworks and immigration policies impact individuals on a daily basis. This perspective is crucial for legal scholars who aim to develop more humane and effective immigration policies. Kox’s work challenges the reader to consider the moral and ethical implications of current immigration laws and practices, making it an essential read for those engaged in the crimmigration debate.
Kox’s central research question—how the law matters to migrants lacking legal status and what this means for the functioning of the law—is explored through various sub-questions. These include how unauthorized migrants understand the law, how the law manifests in their everyday lives, how they give meaning to it in terms of empirical legitimacy, and how these understandings influence their interactions with the law.
Kox’s findings reveal that unauthorized migrants have a nuanced understanding of the law, often viewing it as a comprehensive system that significantly impacts their lives. This system includes not only formal legal provisions but also the practices and institutions associated with law enforcement and immigration control. The dissertation emphasizes the omnipresence of the law in the lives of unauthorized migrants, who experience it as a multi-layered control system that affects their ability to access basic necessities and rights.
One of the most intriguing aspects of Kox’s research is her examination of the role of humanitarian organizations in the migration control system. Initially established to support unauthorized migrants, these organizations have, over time, become integrated into the broader framework of migration control. This integration has led to a paradoxical situation where humanitarian organizations, while providing essential support, also contribute to the enforcement of restrictive immigration policies. Kox’s analysis highlights the complexities and contradictions inherent in the involvement of these organizations, offering a critical view of how they navigate their dual roles.
Kox delves into unauthorized migrants’ perceptions of the legitimacy of the Dutch immigration system. Her findings suggest that while migrants may recognize the legal validity of restrictive immigration laws, they often question their moral authority. This perceived legitimacy deficit is a crucial factor in shaping migrants’ interactions with the law. Kox’s work underscores the importance of considering migrants’ substantive needs and human rights when evaluating the legitimacy of immigration policies. Her research suggests that policies perceived as unjust by those they affect are less likely to achieve compliance and may even provoke resistance.
A particularly poignant chapter of Kox’s dissertation is her exploration of the “pains of being unauthorized.” Drawing parallels to the pains of imprisonment, she documents the various deprivations faced by unauthorized migrants, including lack of access to health care, secure housing, and social mobility. These deprivations have profound effects on migrants’ physical and mental well-being, reinforcing the punitive nature of migration controls. Kox’s empathetic portrayal of these struggles provides a compelling argument for rethinking the human costs of current immigration policies
Kox also examines how unauthorized migrants’ legal consciousness evolves over time. She identifies two distinct processes: one where migrants initially avoid engagement with the law, hoping to remain unnoticed, and another where they actively seek legalization and engage with legal mechanisms. These processes are influenced by migrants’ proximity to and expectations of the law, as well as their perceptions of its legitimacy. Kox’s longitudinal approach offers valuable insights into the dynamic and fluid nature of legal consciousness among unauthorized migrants.
Mieke Kox’s Unravelling Unauthorized Migrants’ Legal Consciousness Processes is a groundbreaking work that provides a detailed and humanistic view of the impact of immigration law on unauthorized migrants. By highlighting the voices and experiences of these migrants, Kox challenges anyone interested in migration policies and politics to rethink the moral and practical implications of crimmigration. Her dissertation is an essential read for legal scholars, policymakers, and anyone interested in the human dimensions of immigration law. It is a poignant reminder that behind every legal provision and policy decision are real people whose lives are profoundly affected.
Sep 23, 2024 Jennifer Chacón
Recent scholarship raises important questions about the rights of children in schools, about the links between schools and punitive government systems, and about how the distributive choices around education impose systemic, racialized harm. With their article The Law of Disposable Children: Interrogations in Schools, Tonja Jacobi and Riley Clafton take this conversation deep into the realm of criminal procedure, opening a window into harmful practices in school-based interrogations. The authors reveal just how vulnerable students are to coercive interrogation tactics when they are in schools and how little protection the law provides them.
The article begins with an overview of the generally impoverished state of Miranda protections, explaining the many ways the Court has limited scope of those protections in the years since the case was decided. It also contains a discussion of the Court’s recognition of the need for special protections for young people in J.D.B. v. North Carolina, the 2011 decision holding that the age of the person subject to government interrogation is a relevant factor in determining whether an individual was in custody and therefore entitled to Miranda’s protections. The authors’ discussion acknowledges the many ways that existing constitutional doctrine offers insufficient protections against coercive interrogations, especially for young people. They note that “[n]ot only is there is no Supreme Court precedent laying out any special protections for schoolchildren to protect them from coercive interrogations—as opposed to custody—there has never even been an explicit ruling by the Court detailing what standards govern the interrogations of schoolchildren or whether they are even afforded the constitutionally required minimum protections of Miranda in the school context.”
The authors then go on to show how most children in schools lack access to even these admittedly insufficient procedural protections. The clear doctrinal analysis of the first section of the paper is complemented by significant additional work done by the authors to show how the Supreme Court’s decisions shape life on the ground in the nation’s schools. They begin with a nationwide survey of lower court cases evaluating challenges to in-school interrogations. They offer a typology of these cases: those where an officer is not involved in an interrogation conducted by a school teacher or administrator; those where an officer is present during such an interrogation; those where an officer and school administrators assume a shared lead role in the interrogation; and those where an officer leads questioning in the school context. The authors reveal that in all but the last set of cases, courts are highly unlikely to find that Miranda applies, and even in the last set of cases, they do not always find that Miranda applies.
Section II takes the reader through a number of examples in each of the categories, and illustrates the significant latitude courts give to both school officials and police officers to conduct interrogations in schools without complying with Miranda’s requirements. The detailed presentation of the facts of some of these cases shows just how far the lower courts have strayed from any effort to bestow Miranda’s intended protections on children subject to interrogations in schools. The authors also illustrate the ironic reality that lower courts frequently find ways to avoid applying the Supreme Court’s holding in J.D.B. to school interrogations, notwithstanding the fact that the ruling was intended to provide greater interrogation protections to children.
In the final section of the article, the authors grapple with the limits of the preceding doctrinal analysis. Even an exhaustive search of lower court decisions involving interrogations in schools cannot paint a full picture of what is happening, since those cases can only capture the interrogations that are challenged in court. To round out the picture, Jacobi and Clafton narrow their lens, and focus in depth on developments in Illinois. They begin by noting that there are no published decisions in Illinois in which the statement of a child in school was suppressed on account of a Miranda violation. Using several case examples, they show how Illinois courts ignore the (admittedly limited) protections purportedly offered by Miranda and J.D.B., and refuse to apply them to interrogations in schools, “where children may be most in need of protection.” (P. 337.)
The authors then explain that the Illinois legislature enacted legislation in 2017 that required Miranda warnings for people under eighteen, followed by the express inquiry into whether the individual wanted a lawyer and whether that individual wanted to speak with the questioner. The authors show how courts have effectively gutted this potentially helpful legislation, at least in the school context, by holding that it would be “absurd” to subject school personnel to these requirements. (P. 337.) Courts also have admitted into evidence statements obtained through unlawfully administered police interrogations of students in instances where the students signed statements for a teacher or administrator admitting culpability prior to the officers’ interrogation.
In the final subsection of the paper, with continuing focus on Illinois, the authors offer information about school interrogations beyond the caselaw—data obtained through interviews with eighteen experts working in Illinois on issues relating to school students’ lives and education. These experts included attorneys representing students, disability advocates, school administrators, social workers, probation officers in the juvenile justice system, juvenile court judges, and post-incarceration reintegration officers. Those interviewed corroborate the authors’ doctrinal conclusion that the Supreme Court’s decision in J.B.D. does not offer meaningful protection to Illinois children interrogated in school.
The authors draw on these interviews to document the commonplace use of the “Reid technique” in Illinois school interrogations. That technique involves an interrogator conducting a pre-interview in which they begin to infer the guilt of the suspect from indicators like lack of eye contact. They then proceed to assume the individual’s guilt in further questioning. The questioning often incorporates deception, including references to nonexistent evidence. It is a highly coercive interrogation technique, and one that is poorly suited for use on juveniles. Yet Illinois school principals have been routinely trained to use the Reid technique, and its usage is common in Chicago public schools. After use of the Reid technique drove one high school student to suicide, the Illinois Principals Association stopped their official promotion of the training, but the Illinois educators interviewed by the authors confirm that the training and techniques remain in wide circulation in the state.
The authors’ interviews with education experts in the state also reveal disparities in how different children are treated in school interrogations. Schools that serve predominantly wealthy and white students are more likely to adopt protective procedures than students that enroll more poor, Black, and Latine students. (P. 351.) Moreover, they note that racial bias and cultural differences can work in ways that subject Black and Latine students to a disproportionate share of coercive interrogation techniques.
Ultimately, drawing on their doctrinal analysis and their expert interviews, the authors conclude that the overall effect is that the legal system treats some children as “disposable.” (P. 297.) This is obviously true when children are condemned to bear legal consequences such as arrests. It is also true when a student is never arrested or placed in formal legal proceedings, but when the evidence obtained in coercive interrogations serves as the basis for severe school disciplinary actions such as lengthy expulsion.
Valuable on its own, the article makes a more significant contribution when read in conjunction with two other articles by the same authors exploring other criminal procedural protections in schools. The first, The Law of Disposable Children: Searches in Schools, 13 U.C. Irvine L. Rev. 205 (2022), documents the attrition of constitutional protections against unreasonable searches in the context of schools. The second, The Law of Disposable Children: Discipline in Schools, 2023 U. Ill. L. Rev. 1123 (2023), examines how school disciplinary procedures also undermine rights that the constitution purports to protect. This trio of articles provides a detailed picture of the ways that students are failed by the law, and contains the outlines of the kinds of changes that might provide children with greater safety and protection when they are in school.
Cite as: Jennifer Chacón,
Asking Questions, JOTWELL
(September 23, 2024) (reviewing Tonja Jacobi & Riley Clafton,
The Law of Disposable Children: Interrogations in Schools, 75
Ala. L. Rev. 291 (2024)),
https://crim.jotwell.com/asking-questions/.
Aug 14, 2024 Aya Gruber
U.S. foreign policy was built on a foundation of sexual conservatism. This is Eva Payne’s bold thesis, which at first blush seems to afford an outsized role to sexual politics in global policy. Yet upon reflection, it makes perfect sense that there is an international manifestation of America’s well-documented domestic intertwining of “sexuality and statecraft.” Scholars of global law and policy have long recognized the phenomenon of “American exceptionalism,” which is the nation’s Janus-faced self-representation as a uniquely exemplary nation that need not accept international consensus or law and also a world leader with a prominent role to play in collective global affairs. Scholars of American sexuality and sexual regulation have demonstrated how U.S. authorities’ preoccupation with dangerous sexuality shaped criminal and family law, border policies, the contours of the public street, and the federal policing apparatus. Indeed, the mutually constitutive relationship between American-style sex-aversion and the American penal state is the topic of my forthcoming book The Crime of Sex. Payne, a historian, brings together these two seemingly disparate subjects of legal and historical analysis—international relations and sexual regulation—and demonstrates their interconnectedness through an eminently readable chronological tale based on painstakingly detailed historical, legal, and archival research.
The story begins roughly in the mid-nineteenth century, when the America of mostly rural sprawl began to more resemble its urban British and continental counterparts, and the cities brought with them a flourishing sexual culture. Britain and France had long wrestled with how to approach commercial sex, the least offensive term for which was “prostitution.” All three governments were particularly concerned with syphilis, which sexist state officials blamed exclusively on the “filthy” and “fallen” women. Accordingly, authorities singularly focused on controlling prostitutes as the solution to the pressing public health problem. In Europe, authorities favored the regulation model, a quite dystopian system where women bought licenses to work in commercial sex, and their funds lined the pockets of corrupt bureaucrats and paid for compulsory testing, quarantine, and painful invasive and ineffective treatments. Poor women, women of color, and victims of settler colonialism, like the Indian women under British rule, endured the worst treatment by police and public health officials.
Across the pond, America had just experienced the “second great awakening” evangelical revival. Moralistic American authorities, who had long held that the U.S. was a more puritanical and therefore more civilized nation than European (Catholic) countries and even Britain, were aghast at the idea of licensed prostitution. Prominent feminist and anti-slavery activists rejected regulation because of religious concerns over sex and humanitarian concerns about both prostitution’s negative effect on women and the regulation model’s violation of women’s liberty. The Civil War was an inflection point, as were the Spanish-American War and World War I thereafter. Civil War soldiers’ sexual demands brought a glut of prostitution, and the war led to the abolition of slavery. Having “solved” American slavery, Northern white leaders and activists turned their attention to prostitution—eventually termed “white slavery”—and “new abolitionism” was born. American new abolitionists joined with British activists and took their message international, seeking to replace regulation with abolition in Western Europe, Britain, and their colonies. Before the United States even had a fully formed national governance structure, the prostitution issue brought America on to the world stage where it could present its exceptionalist face as a leader in morality and humanity.
With the Spanish-American War, the U.S. joined the ranks of colonizer countries, and new occupations, borders, and migrations brought with them new sexual issues. Military officials became preoccupied with sexually-transmitted diseases, with some remarking that syphilis was a more pressing problem than other tropical and contagious diseases and even casualties from combat. New abolitionists who championed male continence and the banishment of brothels from military areas squared off with military leaders who believed that soldiers required sexual release and that regulation was the best way to prevent soldiers from bringing back diseases generated by “degraded” tropical women and poisoning the blood of the white nation.
As the U.S. moved into the era of social purity and white-slavery panic, the new abolitionists found a strong champion in John D. Rockefeller, Jr. With his funding, they were able to form the powerful American Social Hygiene Association (ASHA) and devise a plan to eradicate prostitution abroad at home: the “American Plan,” which stood in opposition to the “French Plan” of regulation. By this time, abolitionism had lost most of its feminist and humanitarian character, and the American Plan’s means to eradicate prostitution included strict immigration control, massive surveillance, policing, and incarceration, as well as the invasive testing and treatment characteristic of regulation. In the lead up to World War I, U.S. officials imperialistically imposed the American Plan in the Caribbean and France. By the end of the war, the U.S. touted the American Plan as a primary contributor to the superiority of American military strength and as evidence the nation should take a moral leadership role in international affairs. ASHA, now fully integrated into Wilsonian international affairs, asserted a prominent place for itself in the fledgling international order. Its reports on prostitution—now called “the traffic in women” because “white slavery” and its racist connotations had fallen into disfavor—influenced the newly formed League of Nations to prioritize fighting the transnational sex trade. Fighting prostitution was Americas path to “world-wide influence, not only in relation to armies but in the social life of the nations,” as one U.S. authority stated in 1917.
There is much more to say about Empire of Purity, but hopefully this snapshot synopsis gives a sense of the richness of Payne’s historical research and analysis. It is engaging and important reading for any scholar or lawyer interested in American exceptionalism, international law and policy, sexuality and the law, and sex work/trafficking. Because America’s exceptional sex aversion has manifested as both formal legal prohibitions and informal cultural injunctions against discussing sex, academic analysis often overlooks the foundational role sex plays in U.S. law, policy, and culture. Empire of Purity fills an important knowledge gap by bringing sex exceptionalism to American exceptionalism.
