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The Definition of Suspicion in an Era of Modern Policing

Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015).

Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.

That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line).

Although to most the distinction between the two situations is intuitive, it is blurrier than it might initially appear. Seizures at license checkpoints are based on suspicion in the sense that the department operating them believes that a certain percentage of drivers stopped will have expired licenses. Thus, while the suspicion with respect to any particular driver is very low, it is still the case that every car stopped at the checkpoint is associated with some degree of suspicion. At the same time, one could say the stop in Terry was based on the same type of “generalized suspicion” involved in the checkpoint scenario, in the sense that Officer McFadden was operating on preexisting stereotypes about the behaviors that are consistent with burglary.

As modern policing increasingly relies on algorithms and profiles, the connection between “suspicion-based” and “suspicionless” searches and seizures will become increasingly obvious. Facial-recognition technology, data-mining algorithms, hot-spot policing, and other predictive policing techniques allow police to scan large segments of the population for suspicious activity or individuals. Although these techniques function like checkpoints, they are based on calculations that the individuals identified are more likely to be involved in criminal activity than those who do not fit the profile.

Enter Jane Bambauer’s article Hassle. Bambauer begins by making clear why the word “individualized” in the phrase “individualized suspicion” obscures the fact that, in both Terry-type cases and checkpoint-type cases, police who conduct searches and seizures are acting with some quantum of suspicion about the person, entity, or item affected. The only difference is that in the situations usually thought of as individualized suspicion cases, courts specifically discuss whether that quantum is sufficient, whereas in “suspicionless” cases (often involving what the courts call “special needs”), they don’t.

Bambauer also debunks the idea that individualized suspicion is somehow more accurate or more desirable than generalized suspicion. Scholars have decried the use of profiles on the ground that they have significant error rates. But so do all searches and seizures. Some factors—such as race—should never appear in profiles, both because using such a factor is particularly repugnant and because race is not a very good predictor of crime. But, as the example with Officer McFadden illustrates, even cases we call “individualized” ultimately rest on profiles.

Others have made this point. As Bambauer notes, Fred Schauer has stated: “[O]nce we understand that most of the ordinary differences between general and particular decisionmaking are differences of degree and not differences in kind, we become properly skeptical of a widespread but mistaken view that the particular has some sort of natural epistemological or moral primacy over the general.” The more innovative part of Bambauer’s article—the “hassle” part—is the explication of how the individualization requirement has inadvertently acted as a break on dragnet searches and seizures. As Bambauer defines it, hassle measures the chance that an innocent person will experience a search or seizure. When courts require the cop on the street to have “individualized,” as opposed to generalized, suspicion for a stop, they are not only requiring officers to have good justification for their actions but also implicitly prohibiting police from hassling large numbers of innocent people. As Bambauer puts it, “individualization has kept hassle low by entrenching old methods of investigation,” methods such as relying on tips and individual conduct rather than technologically-oriented panvasive techniques.

One might react to this point by concluding that the courts’ take on individualization is a good thing. But not Bambauer. She points out that modern techniques can improve policing by reducing error rates, limiting reliance on vague suspicion factors such as “nervousness” or “bulges” (which can often be covers for race), and making policing more evidence-based. Bambauer also recognizes, however, that these techniques come with a cost—a potential for increased hassle. Thus, she argues that the Fourth Amendment requires attention not only to “hit rates” (the suspicion part of individualized suspicion) but also to hassle rates (the number of innocent people affected by a given police technique). She suggests that hassle can be limited through keeping profile programs small or through randomization that reduces the number of people affected by the search or seizure. Another possibility—most likely relevant when, as with checkpoints, significant hassle cannot be avoided—is to ensure hassle rates are explicitly contemplated and authorized by a legislative body representative of those people likely to be affected by the search or seizure.

Bambauer begins her article with a hypothetical. Suppose an officer comes to a judge seeking a warrant based on a methodologically sound study showing that 60% of Harvard dorm rooms contain drugs. The officer also provides the judge with an affidavit listing ten dorm rooms selected through a random number generator and stating that no other dorm rooms will be searched on the basis of the study. The first piece of information provides the hit rate (a high one). The second ensures that the hassle rate will be low. Bambauer thinks the warrant should issue. Whether or not you agree, her article points the way to interpreting the Fourth Amendment in a way that better regulates old techniques and provides a methodology for evaluating new ones.

Cite as: Christopher Slobogin, The Definition of Suspicion in an Era of Modern Policing, JOTWELL (June 2, 2016) (reviewing Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015)), https://crim.jotwell.com/the-definition-of-suspicion-in-an-era-of-modern-policing/.

Bringing Values Back

Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 101 (2015).

To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.

Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.

Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity.

Klingele notes the strategic decision to get buy-in from states by offering a technical rather than normative pitch about the merits of evidence-based correctional practices in lieu of human warehousing. While the strategy has been successful, Klingele calls attention to the sacrifice about confronting deeper values questions. She writes:

[P]olicymakers from across the political spectrum have adopted evidence-based correctional practices because they promise financial savings, increased efficiency and “scientifically proven” results – not necessarily because they believe current correctional practices are morally unjustified. . . . The problem is that the cost of maintaining buy-in from a broad range of policymakers has been neglect of a deeper conversation about the goals of the correctional system, and the uses to which new evidence-based tools will be put. . . . But there are no shortcuts to cultural change. (P. 133.)

Fundamentally, evidence-based correctional practices decide the fate of human beings, not “depersonalized ‘risks.’” Klingele argues that we should openly acknowledge moral values such as fairness and kindness and not obscure or try to recharacterize them as evidence-based.

Klingele terms the revival of rehabilitation neorehabilitation and identifies two strains: humanitarian and scientific. Scientific neorehabilitationism supplies the evidence base to identify effective interventions. Humanitarian neorehabilitationists value rehabilitative efforts even if they do not yield measurable lasting indicia of effectiveness because of the signaling about human dignity, worth and the need to mitigate penal harshness. At bottom, Klingele appears to be a humanitarian neorehabilitationist.

She values the dignity of the individual human and worries that the discourse of evidence-based practices will simply be the preservation by transformation of what Malcolm Feeley and Jonathan Simon termed the new penology in the early 1990s. This approach deploys data about populations to better “identify and manage unruly groups” and sort people. Klingele argues that we should aim higher, beyond building better algorithms for managing and sorting people. We should judge the worth of innovations by moral and normative criteria, not just scientific measures for effectiveness.

Klingele’s call to bring values back into the evaluation is all the more noteworthy because she serves as an Associate Reporter on the American Law Institute’s Model Penal Code Sentencing revision. She has an excellent vantage point to help shape future corrections policy. We are fortunate that someone able to elegantly navigate and translate between the worlds of scientific and normative evaluation is playing such an important role in helping chart the future.

Cite as: Mary Fan, Bringing Values Back, JOTWELL (May 3, 2016) (reviewing Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 101 (2015)), https://crim.jotwell.com/bringing-values-back/.

Un-“Civilized”: On the Criminalization of Raced and Gendered Poverty through Child Support Enforcement

Tonya L. Brito, David J. Pate Jr., and Jia-Hui Stefanie Wong, "I Do for My Kids": Negotiating Race and Racial Inequality in Family Court, 83 Fordham L. Rev. 3027 (2015).

“I Do for My Kids” is a timely and thoughtful empirical exploration of racialized access to justice issues with within family courts. Why then, one might ask, should it provide the basis for a jot in the area of criminal law? The answer has to do with the punitive means some jurisdictions are utilizing to enforce the payment of child support obligations.

Using original research, including in-person, ethnographic observations and interviews at multiple sites, the authors detail how “[c]ivil incarceration pursuant to an order of contempt is commonly used as a remedy to enforce child support orders against indigent noncustodial parents.” (P. 3035.) In this work, Professor Brito and her co-investigators, paint a riveting but disturbing portrait of how low-income—and typically black—fathers must negotiate the demands of law and identity within the space of child support enforcement hearings.

This rich work operates on multiple levels. First, it serves as another example of how civil contempt proceedings and detentions have become increasingly punitive. Second, like the criminal justice system these civil proceedings appear to be mimicking, they deploy identity tropes and unreasonable expectations with regard to the means and opportunities of certain noncustodial fathers. As such, when civil incarceration is ordered, is often seamlessly tied to the race and class status of the obligors. Given the moral condemnation that attaches to “deadbeat dads” and the unbound nature of civil incarceration, these practices become another method punishing or “criminalizing” raced and gendered poverty.

The study referenced in the article investigates the operation of child support enforcement hearings in two states, and focuses upon civil contempt proceedings in State A. Incarceration for contempt in State A involves actions by child support attorneys and family commissioners culminating in recommending a circuit court judge issue a contempt order. Failure to comply with the order results in commitment to county jail, unless the contemnor can meet “purge” conditions. One such condition would be to bring a support arrearage current. Civil contempt proceedings require a determination that a person has “willfully violated” (P. 3036) an order to pay.

Even though the proceeding is civil in nature, willful violation operates as a criminal law mens rea term, with the obligor being found to have scienter of wrongdoing. And while we treat the jailing as if it is not punitive, this becomes another example—similar to certain administrative immigration detentions—of an uncomfortable overlap between civil and criminal deprivations of liberty. According to a forthcoming Seattle Law Review article on new forms of debt peonage by UCLA Law Professor Noah Zatz, “[I]n larger U.S. cities, a shocking 15% of African American fathers are at some point incarcerated for nonpayment of child support.” In one recent example involving disastrous consequences, when Walter Scott was killed while fleeing from an officer in North Charleston, SC, media reports indicate he feared being jailed pursuant to a bench warrant that had been issued because he owed $18,000 in back child support.

“I Do for My Kids” not only raises important questions about the nature and character of civil incarceration proceedings, it explores the racialized consequences that result from the ostensibly color-blind manner in which the proceedings are carried out. This stands as another way in which the civil process mirrors criminal practice. Much like in criminal proceedings, race is rarely, if ever, explicitly referenced in support hearings. The researchers, however, repeatedly observed mostly black men being brought in front of nearly all white judges and commissioners, to be chastised for failing to pay support. Although the fathers would routinely raise issues related to their inability to find work, these narratives were ignored in favor of commissioners and judges directing then toward ineffective jobs programs and requiring them to return later with payment or face civil contempt. (Pp. 3036-3044.)

The researchers tap into a set of rich dynamics in these interactions. First, the court actors seem to rarely listen to or really “see” the fathers. Second, they ignore the ways that race limits the fathers’ work options, especially for black fathers with criminal records. As Devah Pager’s excellent article, The Mark of the Criminal Record, supports, Blacks without criminal records are often less desirable employees than Whites with them.

Within these proceedings, then, “the specific challenges of Black men within the labor market become invisible.” (P. 3041.) Not only do family courts fail to sufficiently grapple with how race shapes the reality of these men, all of the legal actors become coopted in the colorblind narrative, such that counsel for the fathers rarely raise discrimination as an explanation for why a delinquent father has not located employment. As a result, these fathers are presented with a no-win situation: either find funds to pay—which most cannot without work—or be held in civil contempt (jailed). If one concurs that that there is little meaningful difference between civil and criminal detentions in terms of liberty deprivation, the family courts have effectively “criminalized” status.

While I was drawn to the article due to the breakdown it demonstrates between criminal and civil processes, it is also thoughtful and engaging research. For example, in addition to illuminating the disturbing practices within the hearings, the article makes claims about how blindly following colorblind leanings actually instantiates white norms. The existence of such norms, forces advocates on behalf of delinquent fathers to raise race considerations in oblique, indirect and ineffective ways.

To drive home this point, the article presents a particularly stark example in the form of the hearing in Mitchell v. Robinson. This case demonstrates how these proceedings erase reality in favor of a stock story. Not surprisingly, a similar phenomenon has been observed in the treatment of defendants in Chicago criminal courts during another long-term ethnographic project to be published by Stanford University Press in the next few weeks—Nicole Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court. In Mitchell v. Robinson, the chronically underemployed father is repeatedly instructed that he needs to get a job. The Court ignores the reality of his difficulties in gaining employment. Instead, he is described as someone needing to do better and more. Speaking out of turn, he announces in court, “I do for my kids,” then describes how he panhandled to afford a gift for his daughter—support which the court does not recognize. In this exchange, we see the power of this work. In a single moment, it marks the court’s erasure of the father’s challenges, but also his resistance to that move. I observed a similar phenomenon a decade ago in my article Black Women’s Stories and the Criminal Law, 39 U.C. Davis L. Rev. 941 (2006), where I described the criminal prosecution of my own grandmother being partially based on her status as a black woman on welfare. In uncloaking such court practices and the resistance they engender, Brito and her co-authors add to our understanding of the connections between race and access to justice issues, both in the civil and criminal context.

This is first-rate sociolegal work on a number of levels. First, it is multidisciplinary, featuring researchers trained in family law (Brito), educational policy (Wong) and social work (Pate), engaging in exciting and important field work. Second, the work leverages multiple literatures, to explicate the inner-workings of family court proceedings and enhance our understanding of how social identities inform one’s treatment in legal domains. As such, and in a manner that signals respect for the burgeoning empirical methods and Critical Race Theory (e-CRT) movement, within their analysis they borrow key insights from CRT and studies of legal consciousness. Finally, this work reinforces claims about the illusory nature of rights that were important to the agendas of legal realists and Critical Legal Studies (CLS) scholars and that have been central to CRT and sociolegal research. For example, in his foundational article Legitimizing Racial Discrimination, CLS scholar Alan Freeman demonstrated how U.S. Supreme Court decisions used anti-discrimination doctrine to instantiate inequality.

Here, the researchers similarly demonstrate how the colorblind rhetoric deployed within civil contempt and other child support proceedings actually deepens racial subordination and inequality. It is also through this type of insight that they signal the porous boundary between civil and criminal processes, both in the treatment of their legal subjects within the proceedings and the disparate and punitive nature of the outcomes.

Cite as: Mario Barnes, Un-“Civilized”: On the Criminalization of Raced and Gendered Poverty through Child Support Enforcement, JOTWELL (April 6, 2016) (reviewing Tonya L. Brito, David J. Pate Jr., and Jia-Hui Stefanie Wong, "I Do for My Kids": Negotiating Race and Racial Inequality in Family Court, 83 Fordham L. Rev. 3027 (2015)), https://crim.jotwell.com/un-civilized-on-the-criminalization-of-raced-and-gendered-poverty-through-child-support-enforcement/.

Crimmigration Law Comes of Age

César Cuauhtémoc García Hernández, Crimmigration Law (2015).

For criminal justice enthusiasts, Padilla v. Kentucky (2010) represented a victory for criminal defendants in an area where there are few. Whereas previously, defense attorneys were under no compulsion to inform clients about the downstream consequences of a conviction, Padilla said that deportation was different. The severity of this outcome mandated that clients be made aware of this possibility before making a guilty plea—it simultaneously served as a mandate for the defense bar. As a result of the ruling, defense attorneys were involuntarily thrust into the world of crimmigration law, with the beneficiaries being those accused of a crime. Now, at a minimum, defense counsel would need the competence to be able to advise clients who face the risk of deportation.

In Crimmigration Law, César Cuauhtémoc García Hernández has created an immense resource to help ensure this occurs. The work provides a comprehensive overview of a complex phenomenon in American law, namely, how criminal and immigration law converge into a distinct body of law that necessarily involves both.

The book is a “must-read” for practicing attorneys and legal scholars working in this area. It is written with rigor from a fluid pen that is accessible both to undergraduate and graduate students alike. Although scholarship focused on crimmigration law is still in a fledgling state, this book represents a new centerpiece in the discussion that raises the scholarly stakes.

On a personal level, the work might best be understood as embodying the persona of García Hernández himself, whose life is divided between practice and the professoriate. As an immigration lawyer with a practice in Texas, he is entrenched in the practical issues facing migrants and is the author of numerous practical resources for attorneys. At the same time, he is a luminary among scholars working in the area and founder of a nationally recognized blog, crimmigration.com. This book reflects one who straddles two worlds at once, which is united by the desire to achieve greater justice.

The anatomy of the text consists of three topical sections, each of which contains several chapters. The first part, “Criminals in the Immigration Law System” examines various issues in law and practice that have blurred the lines between crime and immigration, paying close attention to laws that subject criminals to immigration law. Next, “Migrants in the Criminal Justice System,” looks in reverse by considering issues that arise when non-citizens violate the criminal law. Together, these sections demonstrate the dialectic between immigration and criminal law; they are not starkly divided spheres, but converging bodies that are sometimes inextricable. The final part, “Enforcing Crimmigration Law” builds from the previous sections by outlining the enforcement aspects of Crimmigration law, including border policing and civil detention. This concluding section caps the study by detailing how even the enforcement apparatus represents a melding of mechanisms found in both civil and criminal law.

The work demonstrates that sometimes, criminal law practice and immigration law practice sit in a symbiotic relationship. Indeed, the immigration system at times mirrors the criminal justice system; simultaneously, what happens in criminal proceedings is critical for determining a migrant’s legal status, including whether one can be deported from the country. This is particularly the case for defense attorneys at the pre-trial phase since, as Padilla presumes, knowledge that a conviction will lead to deportation might very well impel a defendant to go to trial rather than plead guilty.

The book’s navigation through these and other complex doctrinal issues makes for a solid introduction to the fundamentals of crimmigration law. The writing is laced throughout with helpful practice problems that allow readers to test their substantive understanding of the issues in real time before delving deeper into the text. Each chapter is also designed with additional sources for further reading. As such, the book represents an excellent pedagogical resource for law school courses and clinics in criminal or immigration law.

Taken wholly, this book is valuable and has many laudable achievements, not the least of which is its didactic approach. As such, it represents a tool for lawyers to become better lawyers for their clients, and to achieve better outcomes for the most socially outcast members of society—criminals and immigrants. Unsurprisingly, these out-groups are often the ones with the greatest need for zealous legal representation, yet they often must settle for far less in a system that is stacked against them. This work is designed to help lawyers devise better strategies, achieve better outcomes, and hopefully achieve greater justice for their clients.

Cite as: SpearIt, Crimmigration Law Comes of Age, JOTWELL (March 4, 2016) (reviewing César Cuauhtémoc García Hernández, Crimmigration Law (2015)), https://crim.jotwell.com/crimmigration-law-comes-of-age/.

Abolition Calling

  • Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 U.C.L.A. L. Rev. 1156 (2015).
  • Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, 8 Harvard Unbound 109 (2013), available at SSRN

Two recent articles by Professor Allegra M. McLeod, her 2013 essay, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, and her 2015 article, Prison Abolition and Grounded Justice, represent the most significant attention to the idea of prison abolition inside the legal academy for at least generation. The first builds toward the second, a powerful and broad gauge intervention in the current exciting moment of reform in criminal law and justice. Together they constitute some the most exciting new work on criminal justice I have read in sometime.

We stand at what increasingly seems like the most promising change point in decades in the criminal justice era. Academics, long out of the action find themselves facing two risks. If we too exuberantly carry forward the radical critique of criminal justice, at a time when the system seeks legitimacy from researchers, we may miss the opportunity to help build a more “evidence based” system and even contribute to an eventual public backlash in favor of a return to “get tough” punitive policies. The other risk is that we accept premature closure of the era of mass incarceration, embracing too many of presumptions about crime, high incarceration neighborhoods, and law enforcement competence that built and sustained the era of mass incarceration.   Professor McLeod’s essay and article are, along with the recent book Captured by Professor Marie Gottschalk of the University of Pennsylvania, Department of Political Science, the strongest efforts yet to push attention to the latter risk, of defining mass incarceration “down” in ways that will allow it to reshape and reformulate itself (perhaps into a system of mass probation or mass jailing).

The essay and the UCLA article together take on three distinct moves necessary to bring Abolition theory into the criminal law debate (and one of her premises is that just bringing it into the debate can help reshape the horizons of the possible for more realist reformers).

The first section opens with a potent reminder of how violent and dehumanizing our massive criminal justice system is (even without considering executions which are largely unmentioned here). It is not just the degrading carceral state but also the “punitive policing” that keeps it inflated. As shown by the sociologists of the 1950s and 1960s, prisons even before the era of mass incarceration were associated with degrading and damaging treatment, which could not help but build resentment and perverse adaptation in prisoners. The supersizing of prison populations, the normalization of chronic hyper overcrowding, and the accumulation of a disease burdened prison population has made the level of degradation and damage far deeper.  The taint of racial discrimination, which has come recently to be strongly associated with mass incarceration thanks in part to Michelle Alexander’s New Jim Crow, is on McLeod’s account far deeper than our war on drugs. The idea, forged in the Jim Crow era, that incarceration could be a political technology for reproducing status inequality pervades the system regardless of which crimes we focus on.

For many, abolition is rejected from the start on the premise that we need some way of dealing with the most dangerous people convicted of the most serious crimes. McLeod notes that abolition need not (and probably could not) mean an immediate end to all carceral institutions. What she favors appears to be a relentless critical scrutiny on existing forms of incarceration in the goal of displacing as much of it as possible as quickly as possible. Yet even this kind of aspirational abolitionism draws an almost instant rebuke (which I actually got from a colleague I discussed this work with, and who should know better), “what are you going to do with Manson?” This focus on what McLeod and other abolitionists call the “dangerous few” allows the maintenance of the above problems to seem normal and in fact indispensable, unless the objector can prove they have a way to prevent harm from a population that is a tiny fragment of the carceral population and who are themselves subject to life course reductions in criminal risk (even Charlie Manson won’t be killing anyone in his 90s).

The second and perhaps most important productive task of McLeod’s abolition intervention is to highlight the danger of accepting the reforms that seem significant when abolition is off the table, including greater use of probation, greater efforts to combine law enforcement with social services, and more sophisticated use of police in space and time to interrupt crime “hot spots.” Each of these positions are advocated by some of the best criminologists of our time whose books I regularly give to my students interested in dismantling mass incarceration (Mark Kleiman, David Kennedy, Frank Zimring), but I share McLeod’s critique of these as building in a dominance of law enforcement competence and the dangerousness of the criminalized community that locks us into far too shallow a reform trajectory.

The third challenge, one which I find compelling even if its resolution in this piece is only a down payment on more work to come, is that we must begin to address forms of regulation and governance outside of criminal law and justice if we are to truly reduce mass incarceration. McLeod reminds us that criminal law is not premised simply on the moral urgency of holding wrongdoers accountable (notwithstanding the belief of many legal philosophers), but on the often unacknowledged premise that it is a necessary tool of governance in a highly unequal and violent society. Professor McLeod argues that those of use operating in the criminal justice reform space have to actively consider forms of governance that can regulate many of the social problems not cast into the frame of crime and punishment as social control. This section is more of a starter kit of examples than a fully framed theory of regulating the poor beyond crime. It ranges from the technocratic interventions like situational crime prevention and urban design, to the radical communitarian idea of creating “safe harbors” where those threatened by violence of all sorts can achieve safety without police or punishment.

Am I an abolitionist? Even before reading Professor McLeod’s recent article I have found myself struggling with that issue. Abolition as an end point and as a goal is perfectly appropriate. The bridge to abolition is, fealty to the ideal put so well by Justice Kennedy in Brown v. Plata, that while prisoners lose their liberty, they do not lose their “essential human dignity.” Punishments, whether the take they form of incarceration, supervision in the community (which as McLeod argues is also quite punitive), or fines and fees (which can reduce people in poverty to the virtual status of slaves) must always respect that human dignity. As the recent Report of the National Research Council, The Growth of Incarceration in the United States (2014 Chapter 12) emphasized, just punishments should reflect proportionality between crime and punishment, the principle of no more punishment than necessary (or parsimony), regard for the person’s social citizenship or belonging to the community, even while being punished, and concern for social justice. Our current sentencing system and our prisons and jails are badly failing on all of those accounts. To get there, which is their constitutional obligation under the 8th Amendment, our carceral institutions will have to be reinvented, their populations, down-scaled enormously, and their basic model of coercion and control revisited.

Cite as: Jonathan Simon, Abolition Calling, JOTWELL (February 5, 2016) (reviewing Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 U.C.L.A. L. Rev. 1156 (2015). Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, 8 Harvard Unbound 109 (2013), available at SSRN), https://crim.jotwell.com/abolition-calling/.

What Big Data Means for the Fourth Amendment

  • Andrew G. Ferguson, Big Data and Predictive Reasonable Suspicion, 163 Univ. Penn. L. Rev. 327 (2015).
  • Michael Rich, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment, __ Univ. Penn. L. Rev. __ (forthcoming 2016), available at SSRN.

Hear the term “big data,” and the police are not likely to be the first word that comes to mind. Whether or not you are familiar with the term, the vast quantities of digitized information available today—and the data analytics that are applied to it—already shape your world. The movie recommended to you by Netflix, the date you chose on OkCupid, or the ad you saw on your Facebook feed are all the result of the pervasiveness of big data. That same big data revolution is coming to policing. The NYPD operates a “domain awareness system” that links license plate reader data, “smart” cameras, law enforcement databases, texts of 911 calls, and radiation sensors information from around the city. Police departments in Seattle and Los Angeles are piloting predictive policing software that directs officers to places where crime is most likely to happen in the future. Other law enforcement agencies are considering the adoption of social media software that sifts through tweets, likes, pins, and posts for potential on-line threats. To be sure, the police have always relied upon large quantities of data, but the promise of “big data” lies in its enormous volume, its reach, and the application of sophisticated computer analytics.

In response, there is a small but important emerging scholarship that addresses some of the difficult questions posed by the use of big data by the police. In two recent pieces, both Andrew G. Ferguson and Michael Rich address these issues especially well. While each focuses on different aspects of big data use, and each comes to different conclusions about the Fourth Amendment implications, this pair of articles introduces an evolving set of concerns that should be incorporated into every criminal procedure scholar’s current knowledge.

The legality of an officer’s decision to engage in a so-called stop-and-frisk depends on a finding of individualized reasonable suspicion. That’s the law, of course, but defining the content of reasonable suspicion has always been tricky. As many law professors have lamented, the Terry standard is malleable to the point of being meaningless. To make matters worse, the Supreme Court has repeatedly emphasized that reasonable suspicion is neither a quantifiable nor a scientific concept.

Enter big data. What if the police use big data programs as the basis for stops or frisks? What if, for instance, an officer is alerted by a piece of software that trawls through millions of pieces of data to predict that a person is highly likely to commit a violent crime (based on an algorithm of his social connections, criminal history, and social media posts) in the very place the officer finds him (based on an algorithm using historical crime data)? Should a court uphold a stop and frisk that subsequently results in the discovery of an illegal firearm?

As both Ferguson and Rich point out, the Fourth Amendment fails to provide easy answers. This difficulty arises in part because traditional individualized suspicion is itself a fuzzy concept. And the most relevant analogies to big data programs are limited. For instance, we might compare big data programs to drug-sniffing dogs, since both are instruments for turning raw data into assessments about criminal suspicion. But direct application of the Supreme Court’s drug dog cases poses problems, however, since the programming of a predictive algorithm is far more complex than a dog’s sniff to both the officer who relies on its predictions and the judge who evaluates it (Rich, Pp. 60-62.)

Moreover, Ferguson and Rich arrive at different conclusions as to whether big data alone would provide reasonable suspicion for a stop. Ferguson, who uses a broader definition of big data than does Rich, contends that reliance upon big data could provide a far greater quantity of detailed information than any individual officer or informant coming from a “small data” perspective ever could. Rich, who focuses on predictive automated suspicion programs, argues instead that big data alone is insufficient for Fourth Amendment suspicion. A prediction made by software is incapable, contends Rich, of providing a true totality-of-the-circumstances assessment as required by Supreme Court precedent.

These differences matter less than the broader insights about big data that both Ferguson and Rich identify. The use of big data may provide distinct advantages over traditional policing. Contrary to longstanding concerns that individual officers use proxies like race, class, and neighborhood as the basis for suspicion, big data can bring more accuracy and precision to policing (Ferguson, P. 389.) And if suspicion is increasingly based upon data—rather than human intuition—then we might find a greater emphasis on accountability and transparency in policing as a result (Ferguson, P. 393.)

On the other side of the ledger, big data’s promise of objective analysis may be misleading if, for example, its results rely on mistaken inputs. But finding mistakes in these enormous databases, often handled by countless persons and analyzed by “black box” algorithms may be near impossible. To make matters worse, as Rich points out, the Supreme Court’s expansion of the good faith doctrine in cases like Herring v. United States (2009) establishes enormous obstacles for defendants challenging big data accuracy. How easily can a defendant demonstrate that a stop or frisk in his case was based on “deliberate, reckless, or grossly negligent” misconduct, or “recurring or systemic negligence”? Not very, argues Rich, and as a result, we may end up with a system in which “bad data and benign neglect could flourish” (P. 66.)

To be sure, those programs that will strain current Fourth Amendment doctrine most severely—predictive programs that will alert police to criminally suspicions persons—have not yet become part of ordinary policing. But both Ferguson and Rich agree that these programs are coming, and soon. And as with so many new policing technologies, the law is lagging behind (Ferguson, P. 410.) These two excellent pieces demonstrate the need to think about the inevitable widespread use of big data by the police in a systematic and reflective way, before the reality on the ground gets too far ahead of the law that is meant to govern it.

Cite as: Elizabeth Joh, What Big Data Means for the Fourth Amendment, JOTWELL (September 15, 2015) (reviewing Andrew G. Ferguson, Big Data and Predictive Reasonable Suspicion, 163Univ. Penn. L. Rev. 327 (2015) and Michael Rich, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment, __ Univ. Penn. L. Rev. __ (forthcoming 2015), available at SSRN. ), http://crim.jotwell.com/?p=1018.

If We Shouldn’t Punish Psychopaths, May We Still Blame Them for Bad Character? Perhaps Not.

Dana Kay Nelkin’s recent work brings together an important dilemma in the criminal law and a key distinction within it. The result is that our understanding is furthered on both scores. The dilemma is psychopathy. Psychopaths lack affective capacity. They cannot appreciate the wrongfulness behind criminal law’s prohibitions. Without this ability, is it fair to criminally blame and punish them? Although the Model Penal Code specially exempts psychopathy from its definition of mental illness, many theorists believe that appreciating moral reasons is a prerequisite to just punishment.

Now, for the distinction. One move that some criminal law theorists will make is to argue that although we have a judgment that someone has a bad character, the person has not committed a culpable act and hence cannot be punished. If a person enjoys killing and becomes an executioner, not because she wants to inflict deserved punishment but because she wants to kill, ought we to think that she is unjustified or instead that she is just a bad person behaving justifiably? If a driver fails to notice a pedestrian because he is checking out his reflection in the mirror, is this vanity criminal negligence or bad character? The distinction between criminal blaming and character assessing is one way that we can sort cases that seem bad in one respect and yet not properly the object of criminal sanction.

Nelkin’s task is to take up philosopher Gary Watson’s recent employment of this distinction with respect to psychopaths. To Watson, we blame the psychopath for his cruelty although we do not hold him morally accountable. The former character assessment is “attributability” responsibility, whereas the latter responsibility (and the kind required for criminal responsibility) is “accountability” responsibility. Watson’s critics to this point have contended that attributability responsibility is all that is necessary for moral (and therefore criminal) accountability. The critics offer the example of the “incorrigible” slave owner who cannot appreciate the moral demands made by his slaves. Surely, say the critics, the slaves will not only find the owner has a bad character but is also accountable for his actions.

Nelkin believes that the unification of attributability and accountability can be resisted and that Watson’s dichotomy rightly classifies the slave owner case. But more importantly, she thinks both sides of the debate are wrong. She denies that psychopaths have bad character.

At first it seems extremely implausible that a psychopath could have anything but bad character, and in particular, it seems hard to believe that we cannot blame a psychopath for being cruel. Some psychopaths take pleasure in others’ pain. If that is not cruelty what is?

The argument I found most compelling was the argument from kindness. Nelkin asks the reader to imagine a creature who simply enjoys seeing others have a good time. The creature does not take others’ interests as reasons for his actions. If he furthers their enjoyment, it is to further his ends, not theirs. Nelkin argues that, whatever we may wish to say about this creature, we would be reluctant to say that he is kind. The inability of the creature to appreciate these positive reasons prevents our characterization of the conduct as kindness. So, too, Nelkin argues that there exists “a considerable gap between lack of respect on the one hand and disrespect on the other.” (P. 366.)

But if the psychopath is not a case for the distinction Watson draws, is there a class of people to whom his distinction applies? Enter the slaveowner. Nelkin maintains that these individuals if they truly cannot grasp the moral demand that is being placed on them cannot be deemed accountable. However, because they have the capacity to appreciate moral demands—a capacity the psychopath lacks—we can still attribute their wrongful conduct to them, and in this sense, they can be blamed for their characters.

There is much more to Nelkin’s carefully argued work. It has the subtlety of a skilled philosopher, and she masterfully distinguishes different judgments about individuals that our intuitions may run together. Whether one wants to think further about psychopathy or to explore the distinction between holding someone accountable and blaming him for his character, reading Nelkin’s piece is sure to pay dividends.

Cite as: Kimberly Ferzan, If We Shouldn’t Punish Psychopaths, May We Still Blame Them for Bad Character? Perhaps Not., JOTWELL (November 27, 2015) (reviewing Dana Kay Nelkin, Psychopaths, Incorrigible Racists, and the Faces of Responsibility, 125 Ethics 357 (2015)), https://crim.jotwell.com/if-we-shouldnt-punish-psychopaths-may-we-still-blame-them-for-bad-character-perhaps-not/.

Discipline and Fine

Alexandra Natapoff, Misdemeanor Criminalization, 68 Vand. L.Rev. 155 (2015).

The recent cascade of highly-publicized murders of American black men and women by police and by white “domestic terrorists” has brought into public debate one of the most spectacular forms of American anti-black racism. Ruth Wilson Gilmore defines this racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Michael Brown’s body—killed by police in Ferguson, Missouri in August 2014 and subsequently left on the street for hours—has come to literally embody American contempt for black life.

But Ferguson also exposed a less lethal manifestation of American racism: the reliance of strapped-for-cash municipalities on fines and fees imposed on the poor through the criminal justice system. In her article, Misdemeanor Criminalization, Alexandra Natapoff warns us that one attempt to scale back mass incarceration may, paradoxically, expand racism in this subtle but insidious form. Turning felonies such as drug crimes into misdemeanors, she argues, expands the potential for American cities and counties to make money off poor people—with disturbing implications both for people of color and for the nature of criminal justice.

Natapoff begins her argument by distinguishing “decriminalization” from outright “legalization.” She observes:

Commentators on the left and right, the ABA, the NACDL, and numerous scholars have called for decriminalizing minor offenses as a solution to a wide array of systemic problems. This consensus is fueled in part by a special legal feature of misdemeanors: minor offenses that carry no possibility of jailtime do not trigger the Sixth Amendment right to counsel. Accordingly, eliminating incarceration for misdemeanors looks like a kind of win-win: it relieves defendants of the threat of imprisonment while saving the state millions of dollars in defense, prosecution, and jail costs. Motivated by persistent fiscal crises, many states have accordingly been experimenting with the decriminalization of various crimes, most prominently marijuana possession but also driving on a suspended license, traffic and other regulatory offenses. (P. 1058.)

Yet, though the scaling-back of what academics have taken to calling the “carceral state” is a welcome shift away from the recent, seemingly unstoppable push for building more and more prisons and lengthening sentences that so plagued American politics and society, Natapoff reminds us that reducing felonies to misdemeanors does nothing to disrupt the power of police to harass, abuse, beat up, or even kill suspects on the street, or “the usual panoply of burdens [incident to this power,] including arrest, probation and fines, criminal records and collateral consequences.” (Pp. 1058-1059.) Even civil infractions that cannot serve as the basis for arrest may “derail a defendant’s employment, education, and immigration status, while the failure to pay fines can lead to contempt citations and incarceration.” (P. 1059.) And, Natapoff emphasizes, precisely because they are not technically crimes, infractions “can be imposed on offenders quickly, informally, and without counsel, so that the standard procedural safeguards against wrongful conviction and overpunishment are lessened if not eliminated altogether.” (P. 1059.)

This leads Natapoff to a larger point: if it takes hold in a big way, this sort of decriminalization may signal an incorporation of the carceral state by the poverty-industry state. Misdemeanors and civil infractions are cheaper for government to enforce than felonies, making possible a classic “net-widening” effect, “extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives.” (P. 1059.) Combine net-widening with the continuing crisis of chronically underfunded government services, and state and local agencies may come to lean ever more heavily on the fines and fees they collect from small-time criminal offenders. As the Washington Post recently explained, “some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts.” Natapoff notes that such policies in effect serve as a regressive tax—and that nothing in this dynamic is colorblind.

Nor, in the end, would replacing mass incarceration with widespread “black taxes” even necessarily scale back the moralism that has long infused American criminal justice. In an important new ethnography, Nicole Van Cleve of Temple University explores the workings of the Cook County, Chicago criminal courts. Her research details a widespread hostility and disdain expressed by judges, prosecutors, and defense attorneys alike toward so-called “mopes:” the low-level offenders, overwhelmingly poor and black or brown, who fill the court system and receive assembly-line treatment. Van Cleve argues powerfully that “mope” is a racialized slur, mobilizing moral disgust for poor people who have made “bad choices” and do not deserve to be treated with dignity. Increased reliance on decriminalization has the potential to produce ever more mopes, substituting for the stereotype of the violent black brute the stereotype of the shiftless, dependent, morally dissolute black loser.

Natopoff’s article, the fourth in a series exploring the role of misdemeanors in the American criminal justice system, sounds an important warning. As the killings of black men and women continue to shock the nation, it is important not to seize upon partial solutions like decriminalization that merely, in Reva Siegel’s words, accomplish “preservation through transformation.” “Black lives matter” means more than the right to bare life. It also means the right to a life with dignity, and governance that protects rather than preys upon the poor.

Cite as: Angela Harris, Discipline and Fine, JOTWELL (October 23, 2015) (reviewing Alexandra Natapoff, Misdemeanor Criminalization, 68 Vand. L.Rev. 155 (2015)), https://crim.jotwell.com/discipline-and-fine/.

A Case Study for Understanding Prison-Reform, Its Advocates and Its Critics

With the recent national attention given to concerns about mass incarceration, lengthy prison sentences and atrocious prison conditions, it appears that we have entered a wave of prison reform—once again. But perhaps we believe it to be different in kind or degree from the sort of reformist movements we have had in the past. We might believe that today’s areas of focus—overcrowding due to three-strikes laws, concerns about the treatment of juvenile offenders, the roles of race, ethnicity, poverty and mental health as factors in determining prison demographics, the prevalence of sexual assault and violence in prions, the defunding of rehabilitation and re-entry programs—are new or unique. In Coxsackie: The Life and Death of Prison Reform, historian Joseph F. Spillane exposes the cyclical nature of prison reform debates along with a close examination of the failure of the American reformist movement of the early to mid-1900s. Relying on primary documents that included legislative discussions, periodical accounts, correspondences between key political actors, and primarily prison records, Spillane carefully reconstructs the events that influenced first the construction and later the of management of New York State’s Coxsackie Correctional Facility. Coxsackie (pronounced “cook-sock-ee” according to Spillane), opened as a then-modern vocational reformatory for adolescents in the 1930’s at the height of the progressive prison reform movement in New York but within decades spiraled into a now-modern maximum security warehouse for inmates rife with violence and brutality.

Like a lot of good history books, Spillane’s account depicts the past while helping to explain the present and is a must-read for anyone who cares deeply about prison reform and wants to avoid (or at least understand) common pitfalls. In his depiction of the pendulum swings characteristics of prison reform movements, Spillane begins with what were the triggering events in the 1920’s and 1930’s. According to Spillane, prisons generally suffer from inattention until a “focusing event” raises public awareness or fear. In the 1920’s and 1930’s, prison riots provided a political tipping point presenting the education reformers with an opportunity to advocate for change. Then-reformers blamed idleness, prison overcrowding and draconian four-strikes mandatory life Baumes Laws (little did they know that three-strikes would later became the norm!) for the riots.

This view, and what to do about it, was part of the New Deal era thinking. New rehabilitate service-oriented vocational facilities were to be financed in part by the WPA. Coxsackie was built as one of the first of its kind—a prison without walls, at the end of a quarter-mile long driveway, flanked by open fields, on a tree-lined campus where visitors were ushered into an administrative complex. (P. 49.) I found some photographs of the facility online (today it’s surrounded by tall wire fences) and it looks architecturally more like a distinguished private school building than the cement-block lightless warehouses characteristic of more recently-built prisons.

More important than its physical structure, Coxsackie was distinguished by its programming and staff. The Coxsackie experiment was premised on the notion that offenders could be educated and rehabilitated. Reformers insisted that Coxsackie and similar institutions be staffed and organized with this rehabilitative mission in mind. A Division of Education was created within the Department of Corrections and 86% of the inmates were enrolled in educational problems or likewise. Service and treatment programs were a mainstay of the institution and eventually were integrated in parole and release decisions. The reformers succeeded in championing a system, backed by legislation that was focused less on conservative concerns about coddling prisoners and more on liberal concerns about rehabilitation and re-entry.

So what happened to Coxsackie—and by extension to prison reform? By the 1970’s, this reformist gem devolved into a maximum security, violent, highly racialized, resource-poor, over-crowded institution that has become emblematic of the mass incarceration problem in the United States. Among other things, Spillane’s account blames its underfunding—nearly from its inception—for undermining its mission. Prison politics, several wars, and financial crises and social revolutions changed the debate and the grounds on which prison reform was understood. Furthermore, prison life was not exempt from the racial strife and racism that plagued in a newly integrating (or at least desegregating) society. A focus on law and order permeated and led to a reinstitution of the notion that “a prison should be a place of fear, not hotel.” This all sounds too familiar.

Spillane’s meticulous account of one of the most optimistic efforts in prison reform provides us with a tragic sense of deja-vu as we think about which innovations have failed in the past. Yet Spillane ultimately exposes a key difference between past reformers and today’s reformers. He described the evolution of Coxsackie as not merely a failure of prison reform but a failure of progressivism. Today’s debates over rehabilitation have become fixated “on ‘objective’ measures of success, especially recidivism rates.” Spillane sees this as fighting the anti-reformists on their own turf. He invites us to recall some of the non-quantifiable justifications for the older progressive vision of prison reform that emphasized “humanity, compassion and communication” as inherent virtues. Even when educational or treatment efforts have succeed on recidivism grounds, conservative critics have attacked them for conferring undeserved benefit on undeserving offenders. Perhaps the next wave of prison reforms should be more explicit about identifying its measurable and non-measurable impact on society and on those it incarcerates.

Cite as: Margareth Etienne, A Case Study for Understanding Prison-Reform, Its Advocates and Its Critics, JOTWELL (October 7, 2015) (reviewing Joseph F. Spillane, Coxsackie: The Life and Death of Prison Reform (2014)), https://crim.jotwell.com/a-case-study-for-understanding-prison-reform-its-advocates-and-its-critics/.

Anti-Rape Culture

Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, 128 Harv. L. Rev. F. 103 (2015).

I had just pulled up Janet Halley‘s compact and insightful (and incite-ful) commentary on sexual assault for re-reading in preparation for this Jot, when a student came in to chat. This student was involved in a soon-to-be launched pilot program, overseen by the University’s Title IX office and funded by grant money, to provide peer counseling to those identifying as sexual assault victim/survivors. The student-counselor explained that the program aimed to “point students in the right direction” and give them a “confidential sounding board.” The student further stated that the program would be “good for professors” because the peer counselors would deal with contextualizing class topics counselees might find uncomfortable or traumatizing. “You all shouldn’t have to do that,” she opined, “you should be able to just teach.” So I asked, “What are you going to tell students who have concerns about class material being traumatizing?” “I’m not sure yet,” she said, “we are going to receive trauma training from an expert.” “An expert on what?” I asked. “I guess trauma,” she replied. The student-counselor proceeded to reassure me that if a student came to her complaining about a lack of sufficient trigger warnings, she would tell her to “get over it.”

This is the new world we teachers and scholars of criminal law live in. And although the student I spoke with was quite level-headed and well-intentioned, she is soon to be part of this powerful culture. In this new world, the “one-in-four” claim is not just a rallying cry of feminist advocates meant to counter widespread sexist beliefs that rapes never occur and women are liars. Today, the statistic is the “truth” that underlies extreme, one-sided, punitive disciplinary policies and a marked shift in free speech/academic freedom norms. We are told to assume that a quarter of the women (not to mention a tenth of the men) in the class have been raped and traumatized and accordingly to teach rape in a psychologically appropriate manner (at the risk of severely damaging students and our own reputations/careers if we misapprehend the propriety of our methodology). Classes are a source of danger, and student activists call for speech control in the name of safety. Thus, it is not surprising that my interlocutor’s paradigmatic example of a student complaint did not involve actual psychological trauma but rather a sense of injustice when the professor fails to provide appropriate trigger warnings. We find ourselves in the midst of what I am calling “anti-rape culture,” that is, a set of beliefs about what constitutes rape (many forms of sex), its psychological effects (ruinous), how frequently rapes occur (ubiquitous), and appropriate institutional responses (punitive), combined with a norm that “good” people (feminists, women, liberals, non-sexists, etc.) must adhere to such beliefs.

Anti-rape culture is no longer counter-culture. It is not just a creation of feminist activists striving to challenge the status quo through strong rhetoric and hyperbole, if necessary. It has power, specifically, the power of the federal government. Anti-rape culture embodies, for many, undeniable truth, and through legislation, bureaucracy, and informal norms, it governs. Thus, I am particularly pleased that Janet Halley, the foremost expert on “governance feminism” (and coiner of the term) has lent her very important voice to the din of expositions on campus sexual assault. Halley uses the current campus sexual assault moment to illustrate the thorny issues produced when “advocates turn their rhetorical tools and social-movement protest into institutional government.” Halley’s analysis demonstrates why rape-reformers, who now bear the authority and responsibility of the gavel, no longer have the discursive luxuries that come with just a megaphone.

In making her case, Halley examines “ideal types” of hard cases illustrative of the problems that arise when the unyielding rhetoric of the counter culture becomes unyielding law-and-order. The first two involve policy that follows the directives to “take rape seriously” and “not blame victims.” In a signature Halley move of shifting the frame, the article deftly uncovers how recent high-profile claims that University administrators and institutions are indifferent (or worse hostile) to rape victims are, in fact, objections to typical procedural justice requirements. A particularly striking example involves reformed university policy’s treatment of witness credibility. The Harvard University training manual informs administrators that because rape complainants suffer from trauma, their stories “may come out fragmented or ‘sketchy,’” and be “misinterpreted . . . as lying.” The guidelines, Halley argues, are:

100% aimed to convince [administrators] to believe complainants, precisely when they seem unreliable and incoherent. . . . Meanwhile, the immense social, cultural, and psychological differences that can affect the credibility and coherence of both parties’ accounts do not seem, yet, to warrant any mention. On all of those, cultural incompetence is okay.

But for many of us (progressive/feminist criminal law teachers), formalist, libertarian concerns have to take an occasional backseat to distributive fairness concerns. Tinkering with procedure, one might argue, risks sacrificing the occasional innocent respondent, but it is fair in the larger scheme of things. Without reform, it is asserted, there will be far more female victim sacrificial lambs who fail to receive justice or are discouraged to report. Halley points out, however, that one should be circumspect about the distributional consequences assumed to justify the departure from due process. There is evidence that reformed procedures may not have the effect solely of increasing the chances that the right bad guys receive discipline. Rather, such reforms have the grave potential to disproportionately impact racial and sexual minorities.

The other types of hard cases Halley discusses illuminate how the anti-rape culture constructs sex, gender, and the relationship between sex and gender. For example, Halley examines reformed policy’s treatment of “drunk-drunk” sex. It is now old news that the feminist gold standard for disciplinary policy is to declare that a person commits rape if he has sex with someone that he “should know” is too drunk to consent and that the accused’s own drunkenness is not relevant. Some policies go so far as to say that a rape occurs even if the drunk complainant initiated the sex, creating the following theorem:

A and B are drunk.
A initiates sex.
A and B have sex.
B is a rapist.

How can this possibly make sense? Add some gender and it suddenly seems more sensible: Anna is extremely drunk and vomited in the bathroom. Her friends tell her to go home, but she refuses. Instead, she accepts the invitation of Bob, who is also extremely drunk, to go to his dorm room. There they drink some more, and Anna tells Bob she’s “sooooo drunk” and “hopes she doesn’t vomit again.” Anna proceeds to initiate a “make out” session with Bob. They have sex. Anna wakes up naked in Bob’s bed the next morning, remembering nothing and feeling horrible. She tells Bob she can’t believe “he took advantage of her that way.”

If this example sounds familiar, you have probably read a similar vignette on a University sexual assault web portal as an example of something that, although close, “would constitute sexual assault under our policy.” Reformed policy produces a distinctly gendered vision of sexual relations and constructs drunk college men looking to have sex (and random “bystanders”) as women’s protectors from their own inebriated bad decisions (necessarily the decision to have sex). As Halley states, “This commitment cuts women off—in theory and in application—from assuming agency about their own lives. Since when was that a feminist idea?” In addition, rape reforms involving intoxication and affirmative consent construct sex as a site of danger―an act that risks life-shattering trauma if not subject to strict constraint.

Halley wonders whether “campus-sexual-assault movement expresses the priorities and visions of white middle-class women” and accordingly “may not be providing us with everything we need to know to make fair decisions in cases involving class, race, and other key differences.” Perhaps, however, activists’ unyielding embrace of white middle-class woman’s vision of sex is the only way to counter the older white man’s view of sex. Even as sex-positivists, who believe law often undervalues sexual pleasure, and civil libertarians oppose radical rape reforms because they encroach too much on sexual exploration or use too blunt a punitive tool to foment social change, there are many who scoff at affirmative consent as “ridiculous” because “women want men to dominate them.” Male students routinely express disdain at rape reform because “it’s so easy for anyone to lie about rape.” And these contingents historically have had and desperately want to keep the gavel. In the days to come, as the law of rape gets parsed out by universities, the American Law Institute, and the public on social media, all of us involved in the debate should prepare to have strange, for lack of a better word, bedfellows. But that is Halley’s point. The issue of sexual assault is complex, shifting, and unsettling, and we are not well served with sound-bites masquerading reasoned policy, on either side. For those truly interested in delving into the complexity, Halley’s article is required reading.

Cite as: Aya Gruber, Anti-Rape Culture, JOTWELL (September 28, 2015) (reviewing Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, 128 Harv. L. Rev. F. 103 (2015)), https://crim.jotwell.com/anti-rape-culture/.