Dec 6, 2022 Elizabeth Joh
It’s 2022. A patient arrives at an emergency room and says she needs care for an unexpected miscarriage. During her intake procedures, a nurse, suspecting that the miscarriage was the result of a self-managed abortion, calls over a police officer there accompanying another patient. Nearly all abortions are now illegal in the state. When the police officer starts to ask questions, the patient says she wants to consult a lawyer. The nurse, now treating the patient, suggests it would be “best” if she answered the questions. So she does.
This hypothetical isn’t part of Cops in Scrubs, a recent article by Ji Seon Song, but it very well could be. As Song has written about before, the emergency room and the hospital bed are not usually thought of as places for policing, but they should be. Police routinely spend time in places where people in situations of extreme vulnerability sometimes find themselves also targets of criminal investigation. And doctors and nurses frequently act as willing partners to the police. That is a problem, as Song points out, because their positions of authority and expertise blur the lines of aid and coercion for patients who find out they are also suspects.
While constitutional criminal procedure provides a framework for ordinary policing, what about doctors and nurses? The answer is a complex web of federal and state laws that range from mandatory reporting laws to federal HIPAA obligations, not to mention tort and constitutional doctrines about liability. The overarching characteristic of these rules, as Song points out, is their “asymmetrical” guidance. Federal and state law typically tell healthcare workers what they “can and must do,” but little else.
These one-sided directives pose a problem once we find out how closely intertwined policing and healthcare can be. Although they are not trained as investigators, doctors and nurses can serve key functions in the investigative process. They collect incriminating information from patients during the intake process. They can interrogate patients, either on their own or at the request of law enforcement. They perform procedures, like blood tests and surgeries that can be both medically necessary but also potentially incriminating. Constitutional criminal procedures rules may or may not apply to these very fact specific scenarios, depending on the circumstances.
Some of the biggest problems, as Song insightfully observes, are the ones most difficult to address legally. Like the police, doctors and nurses possess a high degree of discretion. Whether observations trigger “mandatory” reporting to the police, whether to conclude that injuries are consistent with criminal activity, and other judgments are left to the healthcare professional. At the same time, there is little legal or policy guidance on the other end of the decision-making spectrum, including when countervailing interests like patient privacy and trust may suggest other actions.
Song’s analysis is particularly important in the post-Roe world. What was once routine reproductive healthcare is potentially criminal. The lack of clarity in newly enforceable criminal laws mean that decisions not just about abortion as it is conventionally understood, but whether to prescribe medications that also happen to be abortifacients, or to perform emergency procedures that might not fall with a “medical necessity” exception, will all fall to doctors and nurses. Many of them will also become perfectly willing partners to the police.
Nov 8, 2022 Aya Gruber
Guyora Binder and Ekow Yankah’s fascinating new article is essential reading for anyone seeking a deep understanding of the legacy of the massive protests in the wake of George Floyd’s killing. The article reveals that a primary achievement—perhaps the primary achievement—of the agitation, Derek Chauvin’s murder conviction, may not be the racial justice victory people widely believe it to be.
The racial justice uprisings of Summer 2020 constituted the single largest worldwide protest in history. Although the sociopolitical factors underlying the eruption of activism were legion, from the ascendence of Trumpian white nationalism to the rampant health infrastructure inequities that helped Covid to devastate communities of color, it was a single nine minute viral video that galvanized the historical moment. What brought the world into the streets was the heart-wrenching video of Derek Chauvin, hands casually in his pockets, calmly—one might even say professionally—training his knee on the neck of George Floyd, who lay prone and dying and cried out for his mother. In those minutes, the world began to see the police not as the superhero criminal interdictors of ingrained American cultural mythology but as the foot soldiers of the forever war against the poor, minorities, and dissenters. The brutal conduct of the militarized police units tasked with “keeping the peace” during the protests further solidified this notion of the police as violence purveyors rather than interrupters.
For this long-time critic of policing and mass incarceration, everything seemed possible in those heady summer months of 2022. States and localities would “defund” police departments that marginalized communities and reallocate funds to the social, economic, and cultural services that prevent crime. Trained violence-interrupters would respond to mental-health and other calls and aid, not spit-hood and strangle vulnerable people in need. The federal government would pass sweeping reform, and the Supreme Court would put an end to qualified immunity.
That did not happen. A few liberal jurisdictions made these types of positive changes. But amid surging political tensions, economic woes, a surge in gun sales, and youths with idle time and high emotions, some areas—but by no means all—saw an uptick in homicides, and others experienced higher than usual homelessness and petty crime rates. The “revolutionary reckoning” of 2020 became little more than a momentary fast from the steady American diet of hysterical crime-wave coverage and tough-on-crime politics as usual. “Defund the police” barely made it off Twitter when powerful politicians, including the President, declared it a terrible slogan and idea, if not the worst thing that ever happened to the Democratic party. Today, police forces receive more funds, support, and military gear than ever before. To be sure, there was an intense backlash to, and overcompensation for, the defund movement. The problem is that there was never a lash; police departments were never defunded.
Yet, in all this gloom, there was a ray of light for millions who called for “justice for George Floyd”: Derek Chauvin was convicted of murder and sentenced to decades in prison. For good reason, activists regarded the conviction and sentence as revolutionary acts. Finally, a jury saw a Black man with a criminal record as a victim and a white decorated police officer as a criminal killer. Finally, racist policing was fought by the rule of law, and the law won. Yet, amid all the jubilation over Chauvin’s demise, a critique of the paradigm of criminal justice as racial justice bubbled up from the margins. Some argued that the focus on Chauvin as a bad apple who violated the police department’s training and ethos—never mind that he was their veteran training officer—deflected from the fact that Chauvin’s pursuit of physical control over arrestees at virtually all costs is what policing is all about. Others cautioned that the case gave a false sense of the promise of prosecutorial justice. It took millions of dollars, worldwide condemnation, and the full attention of a resolute public to gain a conviction for this one act of police brutality—one of thousands that occur daily.
Nevertheless, even many critics overlooked a truly stunning and disturbing fact about the case: The prosecution elected to pursue a route where it could prove murder without showing that Chauvin intended to kill Floyd or even acted in reckless and malicious disregard of his life. Instead, the premier murder charge was felony murder, an offense that provokes scholarly and philosophical ire because it holds people who commit or aid felonies strictly liable for deaths they did not intend or even foresee. This is why Binder and Yankah’s article is so important. It provides a necessary caution that to achieve this ostensible racial justice victory, prosecutors utilized one of the most idiosyncratic and exceptional, retributively troubling, and racially problematic criminal law doctrines in existence. Charging felony murder relieved the prosecution of having to prove anything more than the fact that Floyd died during Chauvin’s perpetration of a felony. Even more stunning, the predicate felony, third degree assault, requires “assault[ing] another and inflict[ing] substantial bodily harm,” but does not require the defendant to intend, know, or even foresee the risk of bodily harm. Chauvin’s conviction feels a lot less symbolically vindicating when one considers that it could have been rendered by a jury that concluded that Chauvin had zero intent to kill or seriously harm Floyd.
One might be tempted to rejoin, “Well, given that prosecutors bend over backwards to exonerate bad cops and stretch the law to incarcerate marginalized people daily, I don’t care that Chauvin’s prosecutors used a controversial but totally legal doctrine to ensure a murder conviction so integral to racial accountability.” Professor Yankah, a scholar of criminal law theory and race, and Professor Binder, the nation’s foremost expert on felony murder, provide a compelling case for why we should care. In the vein of scholarship on the “level-up, level-down” conundrum in criminal law, Binder and Yankah consider the possibility that the Chauvin case could serve as a model for prosecutors across the nation to level up the use of felony murder against racist killer cops. They analyze this possibility alongside the costs of further expanding and legitimizing felony murder during a time when there is nascent movement in the direction of civil libertarian reform.
Binder and Yankah begin by noting that the felony murder rule in Minnesota is one of the broadest around because of its inclusion of the very homicidal assault as a predicate felony, and Chauvin could not have been prosecuted for felony murder without this feature. As the authors observe, unlike Minnesota, most jurisdictions do merge assault and homicide, for good reason. Allowing felony murder to be predicated on assault—especially assault that does not itself require intent—gives prosecutors absolute discretion over whether to charge a given assault that accidentally causes a death as a murder, manslaughter, or just assault. Indeed, the Minnesota law declares that assaults that accidentally and unintentionally result in death are murders. In any case, because assault is not a common predicate, the felony murder doctrine holds little promise in punishing killer cops, absent nationwide reform.
What troubles Binder and Yankah more about celebrating a felony murder conviction as a progressive victory is that felony murder statutes often adopt a “proximate cause” approach that holds defendants liable for murder when a third party reacting to the felony kills someone, including a co-felon (Minnesota however does not). The authors provide a captivating and detailed history of the proximate cause doctrine and demonstrate that the notion of saddling a felon with murder liability for the independent acts of third-parties, which courts initially widely rejected, gained acceptance at two critical junctures in U.S. history. The first was after World War II when courts drew parallels between felons reaping what they sow and Japanese citizens of Hiroshima deserving to be nuked because the Japanese bombed Pearl Harbor. The second and greater expansion of the probable cause approach occurred during the period of the late 1960s through the 1990s, what many scholars have described as a racialized “war on crime” era. Expanding felony murder liability granted prosecutors powerful tools to incarcerate the usual suspects and served to normalize police and private homicidal violence as the natural and inevitable reaction to crime.
Not content to rest on the proximate cause approach’s ignoble history, the authors point to a particularly noxious deployment of it, that is unfortunately all too common. Felony murder liability often arises when the police respond to minor felonies committed by Black men and employ disproportionate and deadly force that kills one or more of the people engaged in the crime. Make no mistake, the person charged with murder is not the cop but the suspects lucky enough to survive the onslaught of police violence. Moreover, as the authors demonstrate through empirical evidence, it is precisely Black men who bear the brunt of this charge-the-victim practice. Black men disproportionately draw police fire, and they are disproportionately charged with felony murders because of the officers’ homicidal choices. Far from being a potential tool to control police violence, the felony murder doctrine shifts the blame for police brutality on to its victims and normalizes violence as the prototypical response to felonious behavior in system where everything seems to be a felony.
There is so much packed into this article: a normative point about using expansive criminal law doctrine to achieve social justice, a detailed history of the felony murder doctrine, an exposition of the philosophical justifications and critiques of the doctrine, and a distributional racial analysis of broad felony murder rules and who wins and loses under them. It is critical reading for not just those interested in the Chauvin case but everyone wanting to learn more about the complex ways substantive doctrine and prosecutorial practice combine to produce racialized police violence and mass incarceration.
Oct 6, 2022 Jessica M. Eaglin
Fanna Gamal,
The Miseducation of Carceral Reform, 69
UCLA L. Rev. _ (forthcoming 2022), available at
SSRN.
Educate, don’t incarcerate. Schools, not prisons.
The call to invest in institutions of care, not prisons and carceral surveillance has grown in popularity in legal and policy circles in recent years. But how should we spend our money to build a world that is safe and equitable for all? A popular response centers on schools. In her forthcoming article,The Miseducation of Carceral Reform, Fanna Gamal critiques this popular response. She contends that there is nothing inherently benevolent about investment in schools over prison. Yet if we take seriously the idea of reinvestment beyond that conceptual confine, we might begin to imagine a transformative pathway forward. Because her work challenges readers to confront the shortcomings in an underlying assumption central to criminal legal reform efforts in recent years, this article is a must-read for anyone curious about the connection between criminal legal reform and education in the era of mass incarceration.
As Gamal asserts, “public education looms large in criminal legal reform.” Whether policy advocates juxtapose spending on prison and spending on education or lawmakers urge getting “smart” on crime by shifting spending from correctional costs toward schools, Gamal helpfully traces a consistent thread in the legal discourse around mass incarceration – if we are to spend less on punishment, perhaps we should spend more on schools. This shift in money is typically considered a positive development.
And it might be, suggests Gamal, but it is an incomplete solution. This is most evident in specific kinds of criminal law reform bills: those that fund schools through the anticipated cost savings of sentencing reductions. Gamal characterizes legislation like California’s Proposition 47, which reclassifies certain felonies as misdemeanors, as both a sentencing bill and an anti-spending bill. Such legislation, she contends, seeks to reduce overall government spending by directing some funding that would otherwise go toward prisons to schools. Critics usually attend to the effects of such laws on the criminal legal system. In contrast, Gamal interrogates the implications of such laws for schools. To grasp the broader implications of these policies for schools, one must understand the school as a site of institutional care not unlike the prison. Today, prisons function not just as sites of punishment, but also welfare institutions for marginalized populations increasingly subject to the carceral legal apparatus. But prisons are only half the story. As Gamal convincingly describes, schools are the other robust welfare institution in an otherwise “anemic welfare state.”
This insight reframes and deepens existing critiques of criminal justice reform and education policies. First, it underscores how reforms that explicitly connect schools and de-carceration can achieve largely symbolic victories without transforming deeper social ills. For example, in both California and Connecticut, legislation that reduced sentencing and allocated some anticipated money toward schools also earmarked the way schools could use such money for punitive purposes. In essence, criminal law’s “long-arm” shapes schools through sentencing reform. Second, Gamal underscores that the efficiency discourse within which this kind of reform tends to arise can obscure important normative questions about how to go about the administration of schools. The assumption that efficient equates improvement can silence other values, like economic and social redistribution. Thus, a common efficiency critique applicable in the criminal law context also applies in the school context. Finally, the conceptual connection between de-carceration and schools threatens to reinforce uncritical engagement with a problematic narrative about schools in society—that this institution performs an unmitigated good. To the contrary, Gamal emphasizes the contested nature of schools as a site of constant substantive battle for political and ideological inculcation.
As solution, Gamal centers the “problem” with this trend in criminal law policy and discourse in the term “reinvestment.” Gamal argues that we can productively build upon reinvestment by seeing schools as an important part of the welfare state that depends upon and requires other critical welfare institutions, by distributing power over funding decisions when funds move to education from prisons, and by addressing the narratives of race and gender that substantiate our current, problematic configurations of social power.
It is the resistance to an implicit conceptual binary in reform circles that makes her project alluring. Surely, we should not continue to incarcerate in a business-as-usual approach to criminal law and policy. And surely schools are better than prisons in many respects. Said differently, if we must live with an anemic welfare state, a point that Gamal does not engage, we very well may prefer one where schools, not prisons, loom as the larger of the two institutions. By shifting the problem from the policies to the discourse, Gamal challenges the conceptual foundation on which these two singular pillars of care exist. Through this approach, she urges readers to imagine how the law of reinvestment may truly be a “first step” toward deep transformation in society rather than an “only step” to reconfiguring the status quo through criminal law.
Cite as: Jessica M. Eaglin,
Reimagining Reinvestment, JOTWELL
(October 6, 2022) (reviewing Fanna Gamal,
The Miseducation of Carceral Reform, 69
UCLA L. Rev. _ (forthcoming 2022), available at SSRN),
https://crim.jotwell.com/reimagining-reinvestment/.
Sep 6, 2022 Jennifer Chacón
The use of electronic surveillance and dataveillance in policing are topics of ever-increasing interest. In the pages of JOTWELL, Chris Slobogin recently provided a helpful introduction to Sarah Brayne’s Predict and Surveil, which represents an important contribution to this field of study. In this post, I want to celebrate Ana Muñiz’s contribution to this growing body of work: her latest book, Borderland Circuitry: Immigration Surveillance in the United States and Beyond.
While Brayne focuses on the LAPD, Muñiz initially trains her scholarly gaze on the practices of the Department of Homeland Security (DHS), and particularly Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). She explores the surveillance and information sharing practices that these agencies pursue as part of their efforts to identify and remove alleged gang members and “criminal aliens,” which is the term the federal government uses to describe “a noncitizen who has had contact with the US criminal justice system.” (P. 15.) Of course, her research quickly extends right back to agencies like the LAPD and other law enforcement agencies, whose labeling and surveillance practices shape, and are shaped by, federal immigration enforcement prerogatives.
Muñiz draws from thousands of pages of documents that she obtained from various agencies. Some were publicly available, but many were obtained through FOIA and Public Records Act requests. Using these documents, in Chapter 2, she breaks down the development and uses of the Enforcement Integrated Database (EID) data repository, and and another data system called TECS. (P. 13.) In Chapter 3, she explores how federal surveillance systems and practices are linked to those of state and local law enforcement, examining “how interoperable gang databases move racialized, unreliable, and at times falsified information across law enforcement jurisdictions to form a set of regional gang surveillance circuits.” (Id.) Chapter 6 shows how the circuit is closed. Here, she examines how federal agencies share EID and TECS data with state and local law enforcement, and how federal agencies in turn rely on these sub-federal agencies to assist in the surveillance of “criminal aliens” and alleged gang members. (P. 14.)
In Chapter 4, she provides a textured understanding of the impact of these networks of surveillance by revealing how lawyers seeking immigration relief for their clients in the form of access to the Deferred Action for Childhood Arrivals (DACA) program confront the “gang labels ricocheting between databases as they guide immigrant youth through the…application process.” (P. 13.) Chapter 5 examines the risk assessment tools used in ICE detention facilities. She reveals how both discretionary determinations and automated categorizations in these risk assessment processes operate to generate additional criminal labeling. (Id.) Criminal labels travel through the circuitry across jurisdictions, and also across borders. In Chapter 7, Muñiz follows the information across the national border to reveal how electronic records concerning individuals’ criminal records and alleged gang activities are sent to other countries along with deported immigrants themselves, “aggravate[ing] global precarity.” (P.14.)
Muñiz labels the resulting network of information and surveillance “borderland circuitry”: “the particular geographic patterns or circuits along which authorities deploy surveillance and information-sharing programs and as a result enable enforcement against an expanding group of criminalized immigrants.” (P. 8.) As the book makes clear, the surveilled populations are not just “criminalized immigrants,” but also immigrants with no contact with the criminal legal system, and US citizens. Muñiz argues that surveillance systems are used in the service of a broader and more insidious set of bordering practices that are inherently racialized. (P. 3.)
Several important themes run through the book. First, Muñiz grounds her evaluation of contemporary surveillance practices in the history of racialized colonial practices which, in the U.S., served as precursors for the surveillance methods used to facilitate slavery and native land dispossession. She thus situates the practice of surveillance within historical paradigms of racial control, noting how such practices continue to target racially subjugated groups disproportionately. (P. 4.) She argues that the border control project is inherently “rooted in frameworks of White supremacy,” and preoccupied with the targeting of racial outsiders. (P. 17.) As her book makes clear, this is not just about the policing of external boundaries, but also interior ones. In this sense, her project serves as an important companion to Monica Bell’s work –also profiled in JOTWELL–exploring the segregationist aspects of policing. Different forms of racialized border patrolling come to the fore as a central feature of policing in both of these works.
Second, she expands on the work of scholars like Anil Kalhan (who first coined the term “immigration surveillance” and mapped its contours) and Etienne Balibar. These scholars have helped to document the ways that immigration surveillance has come untethered from the border. Muñiz provides further illustrations of how radiates outward and inward, constructing a cross-jurisdictional, physically ubiquitous “punitive digital borderland spaces that enable detention, deportation, brutality, and precarity against an expanding group of criminalized immigrants.” (P. 5.)
Third, Muñiz illustrates that it is not just the border that is a moving target. Since the data systems used for immigration surveillance are operated and accessed by a wide variety of agencies, other boundaries also blur. Criminal records and immigration records, benefits data and enforcement data are intermingled and conflated. (P. 31.) Moreover, categorical boundaries around citizenship and criminality are also in flux because the threat of the criminal alien serves to justify extraordinary data collection on citizens and noncitizens alike. Rather than passively record information about criminality, the data systems Muñiz explores contribute to racialized criminalization. “[T]he pool of ‘criminal’ or ‘dangerous’ immigrants is expanding, not because immigrants are committing more crimes or joining gangs in greater numbers, but because policies enable the application of criminalizing categories to progressively broader groups of immigrants.” (P. 10.) The apparently growing threat, in turn, justifies more surveillance, more data collection, more labeling, and more punitive responses in the form of detention, incarceration, and removal.
Finally, Muñiz offers some well-placed advice about data collection. Like many scholars who work on immigration policing, Muñiz had a hard time gaining access to information about ICE and CBP surveillance practices. Lacking people on the inside who would be willing to share information, Muñiz worked primarily with documents, supplemented by interviews with lawyers attempting to help clients navigate the system. When necessary, she sued for documents. (Pp. 158-160.) She observes that scholars can be reluctant to take an adversarial stance toward agencies they study, and that they may also downplay concerning information that they uncover out of fear that they might lose access. That is not her style. She strongly urges scholars to assert their right to public data from public agencies. “The data does not belong to the police but to the public. It is our data. If a government organization refuses to release public data, it is not protecting its own property, but rather privatizing and pilfering public property.” (P. 165.)
My summary gives you a sense of the scope and significance of the work. It does not, however, capture its lyricism. Muñiz writes, first and foremost, as a child of the borderlands. She remembers the desert beauty and racialized violence of her childhood in Arizona, and sees metastasizing borderland circuitry as a growing threat to those who dwell in those lands, and beyond. She closes her book with a call to remove rot of this circuitry by the root, going “out into the borderlands at the exact moment the sun sets behind the mountains, when dust particles swirl in the low light and the ground still retains warmth from the day.” My own childhood in El Paso was filled with such electric moments. Borderland spaces, and the people who are navigating the violence of bordering processes within them, come alive in the pages of this worthwhile book.
Cite as: Jennifer Chacón,
Border Wounds, JOTWELL
(September 6, 2022) (reviewing Ana Muñiz,
Borderland Circuitry: Immigration Surveillance in the United States and Beyond (2022)),
https://crim.jotwell.com/border-wounds/.
Jul 26, 2022 Christopher Slobogin
For those of us law professors who write about policing, sociologists have been a real boon. From the pathbreaking work of scholars like Jerome Skolnick and Michael Brown to the more recent research of Monica Bell and Issa Kohler-Hausmann, these trained observers and interlocutors of human and institutional behavior, who usually obtain much of their knowledge by embedding themselves in the criminal system, have provided law professors with extremely valuable insights about how things actually work. One of the newer sociologists to join this group is Sarah Brayne, an Associate Professor of Sociology at the University of Texas.
In her book Predict and Surveil, Professor Brayne paints a detailed portrait of how the Los Angeles Police Department (LAPD) uses big data and, in doing so, gives us a glimpse of what policing might look like in the future. The third-largest police department in the country, the LAPD has been at the forefront of the move toward predictive policing, the use of fusion centers, programs that compile detailed data about police-citizen interactions, and reliance on private companies to help make sense of all the information collected by police and other agencies. Over the course of five years, Professor Brayne’s research into these practices involved ride-a-longs in patrol cars and helicopters, dialogues with all tiers of the LAPD’s hierarchy, interviews with people in federal agencies and technology firms, deep dives into LAPD archives, and trawling the data the department uses for its investigations. (Pp. 7-8.)
After summarizing the history of government surveillance efforts, the book zeroes in on the LAPD’s data-driven policing programs. During the period Professor Brayne conducted her research (2013 to 2018), this objective required figuring out the relationship between the LAPD and Palantir, a company founded in 2004 with partial support from the CIA that began its work in the intelligence business but soon expanded to providing platforms for compiling and analyzing law enforcement data. As Professor Brayne points out, until her work, “there was virtually no public research available on Palantir, and media portrayals [were] frustratingly vague.” (P. 37.)
Professor Brayne’s description of the interactions between Palantir and the LAPD focuses on what she calls “dragnet surveillance” and “directed surveillance.” On the dragnet side, Professor Brayne observed analysts using Palantir’s platform to carry out a wide range of functions: narrowing a search from 140 million records to just 13 using identifying information about a car; running an address to learn about all the criminal “events” that had occurred there; tracking down a person suspected of trafficking by obtaining his siblings’ addresses and then discovering police reports about strange goings-on at one of those residences; finding another suspect through nicknames and body art described in computerized police reports; and nabbing still another individual through an alert provided by an automated license plate reader data (ALPR). (Chapter 3.) With respect to targeted surveillance, she documents how the LAPD uses Palantir and other services to create programs like LASER (designed to identify “the violent” with “laser-like precision”), compile “Chronic Offender Bulletins,” and pinpoint “high crime areas.” (Chapter 4.)
Professor Brayne recounts that during her fieldwork, she saw many examples of how technological advances like ALPRs were “plainly useful.” (P. 51.) However, Professor Brayne also makes clear that measuring the efficacy of modern policing is a “complicated” process that requires evaluating all of its benefits and costs. (P. 23.) She points to several potential downsides of data-driven policing. Most importantly, she notes that once the LAPD decided to go the big data route, it became obsessed with obtaining data. Even the police themselves complained about “data greed” and the extent to which the new regime ignored their intuitive street knowledge or merely replicated it. (P. 89.) To get the data, officers on the streets were pressured to fill out Field Interview cards (FIs) for virtually every encounter, no matter how trivial. Thus, the names and addresses not only of those stopped but of those who accompanied those stopped, ended up in the LAPD’s databanks, accessible through Palantir. People received “points” for being stopped, which then formed the basis for subsequent stops, which then led to more points and more stops. Given the areas that police frequent in Los Angeles, the net-widening effect of these efforts hit communities of color particularly hard; Professor Brayne reports that half the people listed as “chronic” offenders were Hispanic/Latino, and another 30% were black. (P. 108.) And she also documents that FIs were just one of dozens of criminal data sources that could suffer from such feedback loops.
To Professor Brayne, the dominance of Palantir was also problematic. Because of trade secret protection, the company’s inner workings were opaque even to the police department, much less to outsiders who wanted to monitor them; she notes that “not one person I spoke with could identify a single instance in which a Palantir use audit had been conducted.” (P. 103.) Partly as a result of this lack of transparency, many officers did not understand how to use the platform, nor did the LAPD have ultimate control of the types of information Palantir accessed or how it combined that information. In a real sense, employees at Palantir were making decisions that the police themselves used to make, and in ways that were even more mysterious to those affected.
The key warning Professor Brayne provides is that, while big data policing may appear more objective, it is “fundamentally social.” (P. 6.) As used by the LAPD, this mode of policing is just as dependent on human decision-making as traditional policing, at both the data collection and the data analysis stages. As a result, Professor Brayne suggests, “the unintended consequences of algorithmic systems may be a Trojan Hose: the algorithms posited as a gift to society actually smuggle in all sorts of biases, assumptions, and drivers of inequality.” (P. 6.) Of most relevance to legal academics, she argues that “the technological tools of police surveillance are far outpacing the laws that regulate them, resulting in a growing mismatch between law on the books and the law in action.” (Id.) To those of us who want to provide meaningful regulation of modern policing, Brayne’s book is a necessary starting place.
Jun 23, 2022 SpearIt
“Why does our system pressure innocent people into pleading guilty?” (P. 5)
When people think about how the criminal justice system works, they might think about a trial in a courthouse, with a judge, jury, lawyers, and a defendant trying to beat the case. While this might have been the expectation of the framers, or indeed how criminal justice worked at some times and in some cases, things are very different for most people encountering the system today. Rather than enforce constitutional rights to ensure justice is carried out, what happens today is pure injustice, characterized by individuals pleading guilty to crimes they did not commit, prosecutors leveraging powers and discretion against defendants, and judges and defense counsel who sometimes seem more interested in cutting and approving deals than seeing justice upheld. Rather than arriving at the truth, the system is obsessed with efficiency, with disposing of one case and moving on to the next. The reason innocent people are pressured to plead guilty, asserts Carissa Byrne Hessick, is “because everyone is pressured into pleading guilty. Ours is a system of pressure and pleas, not truth and trials.” (P. 5.)
Hessick’s Punishment Without Trial—Why Plea Bargaining is a Bad Deal argues our system is now designed to impose punishment without trial—a fundamental change to the very foundations of the criminal justice system. The book boldly calls out the constitutional sacrifices made in the name of expediency—and there are lots of them. For example, it is common for prosecutors and judges to impose a “trial penalty” on defendants, by which they give more favorable deals to those who plead guilty and free up the court of having to conduct a trial. In contrast, the defendant who goes to trial can expect to be charged with more crimes and more serious crimes, and handed longer sentences. The penalty effectively punishes a defendant for exercising the constitutional right to a trial by jury, which undermines the very purpose of having the right. But the possibility of more punishment isn’t the only pressure. The system of pretrial detention pushes people to admit guilt too:
For those people who are accused of low-level crimes, agreeing to plead guilty can mean walking out of jail that same day rather than sitting in jail for weeks, if not months, waiting for their trial to take place. Even if a jury eventually acquits them, they don’t get that time in jail back. We’ve managed to punish them before we convict them, so they might as well make that punishment as short as possible.
Efficiency guides the justice system at every corner, and plea bargaining is the result. The entire system is built around a model where only a tiny minority of cases ever go to trial, which, according to Hessick, means “we have given up on the search for truth itself.” Of course, it is not that the system is broken, but working as intended. Indeed, if more defendants took their case to trial, rather than the 2-3% who do, the existing system would come to a grinding halt. In other words, we can barely keep up with the very few cases that end up going to trial, which is why the current course of efficiency must be maintained.
In some instances, the systemic goal of efficiency permits charge bargaining and plea bargaining laced with corruption. The author cites the Jeffrey Epstein case as an example. Epstein’s counsel struck a deal with the federal prosecutor, avoiding a public trial. By allowing Epstein to plead guilty, the government denied the families and victims the ability to participate in the process and have their voices heard.
Because the odds are so stacked, and justice so underserved in these instances, Hessick offers several prescriptions for revamping aspects of the system to equalize the playing field. She suggests that one means of remedying the problem is to jettison some of the formalities that go into a trial. While it might sound counterintuitive to suggest that defendants will benefit from less formal trials, Hessick’s argument is that formalities tend to contribute to procedurally inefficient trials which, in turn, leave courts more dependent on plea bargaining.
But what, specifically, can help achieve this? First, the author advocates changes in pretrial detention policy. Too often, onerous bail practices or the inability to post bail makes the system more burdensome than necessary, and a defendant often must choose between freedom and taking a case to trial. Second, Hessick favors the elimination of extreme sentences, which give prosecutors too much leverage in plea bargaining. The ability to invoke mandatory minimums, Three Strikes penalties, and charges for crimes with extreme sentences allows prosecutors to forge bargains with frightened defendants who have little idea about the strength of the state’s case. Third, Hessick suggests not requiring defendants to show up for all pretrial court appearances. This revision would allow defendants to move closer to trial without having to endure so much inconvenience and expense. With such formalities relaxed, there would be more impetus for individuals to take their case to trial, since the cost-benefit analysis would not lean so heavily on the prosecution’s side.
For readers who are unaware that many are punished without trial, or worse, punished more severely for going to trial, this book will be an angering, eye-opening experience. For those familiar with some of these practices, it is a reaffirmation of much that is wrong with our overbearing criminal justice system. The work is commendable in that it takes both liberals and conservatives to task for helping to engineer this situation, and for ignoring the need to make the system more accountable. The text weaves together analysis and critique of multiple practices to reveal the true scope of the problem. The analysis also shines light on the desperation that the current system wreaks on people who get caught up in it. The book’s first chapter, with its powerful indictment of the current system, is destined to show up in college course readers and law school courses across the country.
May 24, 2022 Maartje van der Woude
Even before Juliet Stumpf coined the term “Crimmigration” in her 2006 article The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, scholars were developing a steady flow of legal and empirical scholarship focusing on a sharper demarcation and a better understanding of crimmigration – or the merger of crime control and migration control. From its initial strong focus on understanding the legal ramifications of the growing convergence between criminal law and immigration law, over time, the scope of the scholarship widened. Until recently, the main ‘actors’ in crimmigration research were either state-agents such as border guards, immigration officials, the legislature, the police, etc., or migrant communities that were subjected to and affected by crimmigration. Recently, by building on the notion of ‘crimes of solidarity’, NGO’s and activists defending immigrant rights have been introduced as actors subjected to crimmigration.
In their article Solidarity under siege: The crimmigration of activism(s) and protest against border control in Spain, López-Sala and Barbero are describing how, in Spain, repressive tactics are being employed against the state against various activists and immigrant-right initiatives. Their analysis paints a grim picture that unfortunately is illustrative of a European Union-wide development. In response to fears of mass migration to the European continent, many European states have formalized so-called crimes of solidarity, also referred to as ‘intolerable solidarity’. Interestingly enough, whereas this tendency in most European countries was sparked by the so-called 2015 ‘European Refugee Crisis’, the criminalization of activists in Spain predates the ‘crisis’ and is part of an earlier punitive turn that started about 30 years ago. As part of this punitive turn, (im)migration has been generically categorized as a source of ‘criminality’ that must be contained at the border and controlled within the territory. At the same time, rules were put in place to control and sometimes sanction various forms of social protest, as it was framed as a public disturbance. By tracing the legal history, the authors indeed paint a picture of an increasingly intolerant state that is putting various mechanisms in place to control (im)migration and to silence those protesting against the state’s laws and policies. These ‘gag’ laws seem to cover a range of criminal but mostly administrative measures, as the latter category requires far fewer guarantees for defendants, whereas police and the administration have certain privileges and can act with much greater discretion.
Applying a socio-legal approach, in which the authors combined document analysis with semi-structured interviews of activists from different social organizations and formal and informal networks, the article discusses three cases in which immigrant rights activists were explicitly targeted by the Spanish government. The three cases focus correspond with the different ‘faces’ of border control in Spain, and in Europe at large. One case addresses the internal borders, also known as the ‘Schengen borders,’ referring to the 1994 Schengen Agreement that did away with all forms of permanent border control at these internal borders. A second case discusses activism at Spain’s external border, which demarcates the frontier between Europe and Northern Africa (which, in turn, is part of the ‘Western Mediterranean Route’, stretching across the sea between Spain and Morocco). The last case revolves around the externalized Spanish border in Morocco.
The analysis of these three cases shows a wide array of repressive police tactics, administrative sanctions, and criminal prosecution that have been used to impede the work of defenders of immigrant rights. The authors distinguish between four levels of repression that activists in Spain are facing. As the authors write “This repression is multifaceted and variable and mutates depending on the influence of the activist as well as the limits imposed by the courts. In other words, the crimmigration of activists employs soft and hard coercion.” (P. 688.) The first level of repression are the ‘informal dissuasion’ practices, subtle actions and inactions carried out by the police, such as increased police presence, verbal threats of sanctions, coercion to delete pictures or videos, or failure on the part of the police to fulfill their obligations to protect these activists from harm. The objective of these practices is to pressure activists to stop their activity, but without opening formal proceedings (or leaving any evidence), either because their activity does not warrant such proceedings or because the tactics used to apply pressure are illegal. At the second level of repression there are the ‘formal dissuasion’ tactics, such as applying stop & search powers, carrying out ID checks, confiscating personal property or political material (protest signs or fliers), bringing charges (despite not initiating sanction proceedings), and detaining activists on the street or taking them into custody at the police station. Third are tactics labelled as ‘bureau-repression’ in which administrative sanction proceedings are formalized. As individuals are quite vulnerable in administrative proceedings, which allow varying degrees of coercion to be applied to activists, the authors note that these tactics are often an effective approach to dissuasion. The last level of repression is made up by criminal prosecution, which is the State’s last – but most coercive – resort. In Spain, activists can receive three months to a year of prison for helping someone migrate irregularly. The rationale behind these sentences is not only to punish individual activists, but also to have a preventative effect by discouraging other activists.
Among these various levels of repressive measures, the authors note that the informal tactics and bureaucratic repression are most common. The measures that fall within the scope of these tactics require very little procedural effort and can happen at any given time, thereby contributing to an overall sense of immigration and immigration activism surveillance. The fact that these tactics can also be done with impunity because of the limited – or, more accurately, absent – legal protection that activists have in these cases (particularly as compared to protections in administrative or criminal proceedings) only further fuels the use of such practices.
The article not only illustrates how grim the situation around immigration and border control has become in Europe, but it also fills a gap in the existing scholarship by analyzing the intersections between crimmigration and activism, focusing on the repression of migrant rights activists, particularly those monitoring border and internal control sites. In so doing, they contribute to a deeper and more complete understanding of the state’s approach to not only criminalize immigrants and to expand categories of outsiders, but to also target various categories of nationals by finding them guilty of helping fellow human beings and fighting for their rights. Their analysis emphasizes that the growing legal, bureaucratic, and police repression of solidarity with immigrants represents a new approach to irregular immigration and migration control tactics. They urge scholars to look not only at the formal tactics and state interventions, but also – or perhaps in particular – to the small and informal strategies utilized daily by the police.
Cite as: Maartje van der Woude,
Criminalizing Solidarity, JOTWELL
(May 24, 2022) (reviewing Ana López-Sala & Iker Barbero,
Solidarity Under Siege: The Crimmigration of Activism(s) and Protest Against Border Control in Spain, 18
European J. of Criminology 678 (2021)),
https://crim.jotwell.com/criminalizing-solidarity/.
Apr 20, 2022 Aziza Ahmed
In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with the rise of what is now called “carceral feminism.”
Gruber begins her book by connecting the dots between the anti-sexual violence activism of the 19th century and today. In doing so, Gruber centers the role of race in structuring how imaginaries of sexual exploitation and violence occur. The voices of dominant groups (including white feminists) constructed the larger social narrative of sexual violence. Their ideas of sexual exploitation were shaped by the racialized ideas undergirding the political economy of the time, including the anti-immigrant sentiments of Chinese exclusion and the racist ideologies wrapped into slavery.
In Gruber’s account, the narrative of sexual violence was deeply connected to racialized ideas of purity. This began early in American history. The image of the exploited woman forwarded in early Twentieth century movements to end the traffic of “white slavery” was a young white woman who was lured into a relationship with a trafficker. Drawing on the work of Jessica Pliley, Gruber shows how white slavery played into ideas of racial hierarchy, as stories of white slaves often involved women trapped into slavery by “foreign men, low-class criminals, or ethnic minorities.” The idea that women were being sexually exploited also helped to reify ideas of sexual deviance. In the context of Chinese Exclusion, first wave feminists sought to rescue Chinese immigrants perceived to be prostitutes. Onto Chinese women, white “abolitionist” women projected a range of constructs, including the idea that Chinese women had an innate degraded status and that Chinese culture fueled this. The voices of Chinese women, and their own experiences, were disregarded.
Black women who suffered sexual violence were not given the same status as “victim.” During slavery and after, Black women were often hypersexualized. The institution of slavery did not allow for the recognition of sexual violence faced by Black women as violence. While the plight of Black women drew some white women to their cause, white nationalists used the trope of innocent white women to galvanize the anti-Black violence documented by Ida B. Wells and Fredrick Douglass. To white nationalists, Black men were the primary cause of the stolen innocence of white women.
Moving forward in time, Gruber shows how these racialized ideas of sexual violence set in motion in the past adapted to the contours of the political economy of the day. In the 1980s, neoliberal ideas of personal responsibility began to dominate policy-making, spurring the retraction of the welfare state. And, as the welfare state retracted, the carceral state expanded. As security came front and center in national debate and dialogue about American life, a new politics of victimhood emerged that gave new life to old tropes about the criminality of racial minorities. Black men and black communities were, once-again, cast in the role of the serially criminal—almost pathologically predisposed to crime. Black women continued to struggle to be seen as true victims, as stereotypes from the jezebel to the welfare queen were thrust on them. There was little room for Black and other women of color in the growing and conservative victim’s rights movement in the 1980s that remained fixated on the white woman as innocent victim of crime.
Just as they had in earlier moments, as Gruber describes, feminists divided. Some feminists focused on welfare and poverty, fought to prevent the dismantling of the welfare state, and demanded a structural approach to intimate partner violence. Others did not. While some feminists held their noses and joined forces with the police because they lacked any other funding or opportunities to bring about structural change, other feminists ran with the idea that prosecution, policing, and imprisonment should be the first—if not, only—resort. These feminists offered fodder for the rising push of security and anti-crime measures that would result in what we now call mass incarceration. As Gruber points out, like in the 19th century, Black women’s experiences with violence were erased as feminist activists flattened women’s experience of violence into talking points supporting a criminal law-oriented approach
Our current moment can be defined, in part, through the ongoing, national conversation on criminal law reform. Activists march through the streets demanding the abolition of the prison system and the defunding of police. It is becoming increasingly difficult to be considered progressive and see the criminal legal system as a solution to a social problem. Yet, once again, feminist advocates find themselves at the cross-hairs of this fight. As advocates fight for raising consent standards in the context of #metoo advocacy, for example, they run up against the idea that we should be making it harder for prosecutors to punish people. Again, feminists grapple with how to end sexual violence, but now with a sense of how punitive approaches do more harm than good.
Understanding our contemporary moment, and the choices activists are making in calling for criminal justice reforms, requires a sense of the past: the decisions that have come to shape contemporary anti-sexual violence organizing and what feminists could have done better. As Gruber powerfully shows, to find a path forward we cannot simply rely on the dominant feminist visions of prior moments, which often were mired in a racial and carceral feminist politics. Instead, advocates should unearth the dissenting feminist voices that long argued that it was possible to have a world free of sexual violence and without the cruelty of the carceral state.
Mar 10, 2022 Jonathan Simon
Benjamin Levin, Criminal Justice Expertise, 90 Fordham L. Rev. __ (forthcoming 2022).
Much of Benjamin Levin’s prolific work in recent years is concerned with what might be called the history of the criminal justice present; understanding the many intellectual and activist currents that are shaping the remarkable current moment when criminal justice reform in many states is happening (although in fits and starts) and claims of abolition not heard in a generation are also being raised. In Criminal Justice Expertise, perhaps his most intellectually venturesome work, Levin steps back from the frontlines of emerging law (topics like “wage theft,” “mens rea reform,” and “progressive prosecutors”) to look at the nature of expertise about criminal law and justice as it figures in debates about criminal justice reform. In doing so, I believe Levin helps many of us thinking and acting in this space to locate ourselves in ways more enabling of cooperating and conflict (when necessary).
For a long time, one of the dominant strains in criminal justice reform scholarship from academics has argued for a more administrative law model of criminal law in which the power of police, prosecutors, and prison administrations would be subjected to greater procedural transparency and scrutiny by expert analysis of objective data. This expert reform logic, sometimes referred to today as “evidence based criminal justice reform,” relates to an even more seasoned narrative about mass incarceration, that described it as a product of the success of a politicized punitive populism over an earlier consensus behind expert-based rule over criminal justice (David Garland’s The Culture of Control: Crime and Social Order in Contemporary Society 2001 is perhaps the most influential version of this account).
More recently, critics of mass incarceration have offered a second view on expertise, arguing that the problem may not be too much popular say over criminal justice, but too little real democracy. One version of this is the late William Stuntz’s influential article, “The Pathological Politics of Criminal Law,” in which he argued that once tolerably effective forms of popular democratic local control over criminal law had broken down due to the racial politics of urban control and the intervention of the federal government through the war on crime and the Warren Court’s criminal procedure. Among academics, until recently, it seemed the question of expertise was a debate between these two camps (which I’ve been on both sides of).
A third account is only now receiving academic attention, the reemergence to academic and public view of dedicated abolitionist discourse among activists and community members. Levin’s primary contribution is to flip the debate about expertise v. politics into a discussion of different kinds of expertise and the inevitability of politics as part of that expert role.
One important divide, often surfacing in the administrative law analogy, is the conflict between vocational and scientific or educational expertise. This division within the “expert” camp, goes back to the very birth of the university based social sciences which often positioned themselves as the solution to failed decisions by frontline police, prosecutors, and prison officials. Levin does not question the reality of punitive populism as a historical reality, but he does challenge the strong bifurcation between educational or scientific expertise and the politics of crime control. This administrative law model presumes that there is a values consensus on what we want from criminal law that is not in fact in evidence. Second, it presumes that politics in the conventional sense can be walled off. One of the biggest reasons to support Levin’s skepticism about an administrative law solution is the history of reforms by science-based experts. As recent histories of criminal justice have suggested (see Simon Balto, Occupied Territory: Policing Black Chicago from Red Summer to Black Power), scientific elites have often reaffirmed and hardened lines of racial discrimination.
Levin’s other contribution is to set this vocational/scientific expertise into a discussion with the emerging discourses of abolition and activism, not as a new populism (although interestingly it is that as well) but as a new or at least original form of expertise, one based on lived experience and standpoint subjectivity. While some of this new experiential expertise is abolitionist, it cannot be assumed that it will always align with pro-decarceration policies. Indeed, in other ways it strengthens the political authority of crime victims, and crime as a category of meaning. Ultimately, if we are entering a period when criminal justice expertise is associated with power, it will not so much push politics away as transfer it from the point of discretion to the selection of experts. This is a very helpful clarification of conflicts that we can avoid and those we cannot.
Feb 7, 2022 Eric J. Miller
Michelle Madden Dempsey is one of the foremost contemporary analytic philosophers of criminal law, someone whose work engages in deep and important ways with issues of power and oppression located in and expressed through the criminal process. In past work, she has explored the ways in which the institutional role of the prosecutor operates to entrench the victimization of survivors of sexual violence. Another line of inquiry, and one to which this work returns, is the nature of consent in the criminal law and in moral theory, especially consent to sexual relations.
In her article, Coercion, Consent, and Time, Dempsey engages with the #MeToo/#TimesUp movements to “provide conceptual tools for making sense of (and understanding the limits of) three distinct responses commonly offered by those accused of past sexual misconduct: ‘But that used to be okay!’ ‘But everybody used to think that was okay!” and ‘But that was so long ago!’” In separating out these three responses—the claims of justification (I was permitted to do it), of excuse (it was impermissible, but I reasonably believed I was permitted to do it), and of accountability (I knew it was wrong when I did it, but the so much time has passed that I cannot now be held to account)—Dempsey taps into important issues for criminal theory and law more generally. Of particular interest is Dempsey’s focus on the importance of the passage of time.
Criminal law teaching generally pays scant attention to the role of the passage of time in cutting off accountability. Dempsey demonstrates just how strange is that oversight for our notions of criminalization. One, currently popular way to think about criminal law is as embodying the serious condemnation of the polity (represented by the state) for some moral wrongdoing. If the wrongdoer is still around, and if the act was neither permitted nor their conduct excusable, then why should the passage of time make a difference to the community’s power to hold the wrongdoer accountable and demand they make amends? Why is it that on the front end, if the state does not charge an offender within a few years of committing the crime, the offender may evade accountability or amends, whereas if the charge comes within that time frame, accountability and amends may stretch for years through various forms of direct and collateral sanctions?
The passage of time also plays a role in both the (moral and legal) permissibility of conduct and beliefs about the permissibility of conduct. Dempsey points out that conduct that was socially permissible at one time may become impermissible (and vice versa). The wrongfulness norms that guide and explain our conduct change over time. In the context of the #MeToo/#TimesUp movements, the issue is the evolution of wrongfulness norms that structure heterosexual relations. The brilliant insight Dempsey offers us is that these norms are used by people in dialogue with other social norms to structure their lives.
We often think about wrongfulness norms by taking a static snapshot of contemporary and prior norms of conduct. At different times, the same act, considered in light of that norm, may have different meanings. From our contemporary standpoint, we consider the criticized norm—Dempsey considers a norm of seduction in the now-maligned song, Baby it’s Cold Outside—in light of our contemporary mores. That does tell us something: it tells us whether the conduct in conformity with the criticized norm would be acceptable today. But it doesn’t tell us the whole story.
Dempsey’s critical insight is that people act not by simply applying a norm mechanically to guide conduct, but by playing with norms in complex ways. This norm-using activity takes place against background moral, social, and institutional norms which structure our interaction with the criticized norm and between people. Thus, what is from our perspective a morally wrong norm of social interaction, one that from our contemporary perspective should be avoided, might in the context of the norms of the time, take its place in what Tommie Shelby has called in his book, Dark Ghettos, an “impure” act of resistance. That changes not simply the social meaning of some act, but the activity itself.
Dempsey proposes, for example, that the act of seduction in Baby it’s Cold Outside is not the act of sexual predation, coercing an unwilling and less powerful woman into sex. Instead, and understood against the 1949 legal and social prohibitions against fornication, the act is (as the duet format might suggest) a joint, conspiratorial act seeking sexual intercourse despite the social mores of the time. It is, in that case, a joint act of sexually liberated resistance to the norms of sexual pleasure in that society. To be sure, it is an impure act of resistance: we cannot just wish away the structures of sexism and misogyny that determine who has power in this setting and who does not. Nonetheless, sometimes things are a little more complicated (although, on the alternative, predatory reading, sometimes they are not).
Under pressure of space, I shall leap over Dempsey’s fascinating discussion of excuses. The less familiar issues—for a criminal law audience at least—are raised by accountability delayed. These difficult questions revolve around whether the victim of a sexual assault has a duty to call her assaulter to account, and when. One version of time’s importance is to blame the victim for not acting quickly enough. Dempsey addresses these concerns under the heading of the doctrine of laches.
If the statute of limitations provides a formalistic separation of crimes into those that are serious and persistent and those that are not; then the doctrine of laches applies to victims, and separates them into those who act with appropriate expeditiousness and those who “sleep” on their duty to call a wrongdoer to account. Laches, Dempsey suggests, applies, “if the victim was unaware of the wrong, and her lack of awareness was reasonable.” That can happen, Dempsey suggests, when survivors have “suppressed memories of past sexual trauma or did not perceive themselves as experiencing sexual misconduct in the distant past, and yet now recall the abuse and/or finally recognize the conduct they experienced as wrongful”
Another way to think about the laches idea of sleeping on one’s rights focuses on power. When we think about what happens to victims of sexual violence or other forms of oppression, the idea of “sitting on their rights” covers a multitude of activities (or inactivities), some of which may be morally culpable, some not. For example, trauma can be expressed in ways other than not recognizing that one has been injured: it can come in the form of recognizing but not feeling capable of seeing through the criminal or moral process of calling one’s victimizer to account. Perhaps the survivor does not have access to the sorts of personal resources Hobbes calls the “faculties of the body and mind”; perhaps alternatively or in addition, the survivor is disempowered by lack of “riches, reputation, and friends” that the wrongdoer possesses.
When the balance of resources changes, either in civic society or through government, then perhaps so too does the power and perhaps the responsibilities of survivors. What the #Metoo/#TimesUp movements do (in part) is change the context in which survivors can speak up and call out. Before, survivors lacked allies who would protect them for calling out the wrongdoing, and social and legal institutions that would protect them from retaliation. #Metoo/#TimesUp creates a novel environment that hopefully empowers some survivors to speak up and challenge their wrongdoers.
A core way in which people push back against accountability is to argue that it is unfair to hold people responsible for past wrongdoing when “the rules have changed on them.” Dempsey notes that this is one way in which people defend the men who engage in misogynistic conduct or sexual assault, but it is a feature of a variety of forms of oppression. Her article usefully disentangles three ways in which oppressors argue that time’s passage renders irrelevant their past wrongdoing—it wasn’t wrong back then though it is now (justification); if it was wrong back then, then we all believed it wasn’t (excuse); and even if it was wrong and we knew it, you can’t prosecute me now (unaccountability). Dempsey’s article thus enables us to place the passage of time within the context of our central criminal defenses. Ultimately, she demonstrates that times’ passage may not create the ruptures that the guilty use to evade the consequences of their wrongdoing, but also that charting continuities between the present and the past may be more complicated than we sometimes think. The simple fact of (non)consent cannot be understood apart from the social, moral, and legal norms that structured the world in which that consent was given, and may explain why victims might wait so long before seeking accountability for the wrongs done to them.
For the most part, the United States legal system ignores the ways in which it has contributed to oppression in the past, and does so in the present, so that past oppression structures present harm. A theme of Dempsey’s work is that criminal prosecutors overestimate their power to protect survivors from harm, and underestimate the social costs they impose upon those survivors when they force them to come forward. Dempsey argues elsewhere that this is a failure of governance: it is how the state and society participate in the harm to survivors at the time of their injury and over time. Dempsey’s current article examines what happens when traumatized victims do come forward and are told that it is now too late. She powerfully argues that time does assuredly not heal all wounds, and that the criminal process’s inaction can impose some new ones of its own.
