One reaction I’ve gotten on my fairly popular post about the Kavanaugh hearings is that many people were feeling some unease around “progressive punitivism” but couldn’t quite put their finger on the source of the discomfort until I defined the term. Since then, I’ve been thinking a bit more about the discontents of pursuing a social justice agenda through a call for harshness, and came up with the following overall framework:

Origins of Progressive Punitivism

The left and the right do not operate in separate universes. Marinating in the American mainstream culture is likely to leave its imprint on social movements of all stripes, and I think progressive punitivism shares quite a bit with its source, conservative punitivism.

Conservatives are largely saddled with having brought about aggressive law enforcement and mass incarceration, though newer works highlight the complicity of Democratic presidents like Kennedy, Johnson, and Clinton, as well as that of middle-class minorities. What is characteristic of this framework, as set forth by Jonathan Simon in Governing Through Crime, is the general tendency to address social malaise (in schools, at work, at home) through a framework of crime. In other hands, holding the crime hammer in your hand makes every problem seem like a nail.

In addition, the tough-on-crime movement was characterized by the reification of victims, or even (to recur to Simon again) to recast the quintessential defining metaphor of the American citizen as a potential victim.

Finally, while the left gets accused often of inventing identity politics, much of the aggressive law enforcement effort–especially in the area of drugs–was driven by identities, i.e. seeing crime in the inner city and as perpetrated by people of color while being blind to crime committed by more powerful people (critical criminologists often identify this identity-based enforcement principle as the main trope of our criminal justice system.

I’m coming to think that, rather than protesting about this, vocal and active parts of the left have coopted this mentality to support their own ideology.

Defining Features of Progressive Punitivism

1. It’s identity-driven. Progressive criminal justice reform emphasizes justice for particular contingencies and explicitly excludes leniency or compassion for people who are considered part of the power structure or bearers of entitlement and social advantage.

2. “Leveling Up” punishment. When comparisons are made between disenfranchised people and privileged people, the call is toward harshness for the latter, rather than leniency for the former (or both at once.) While the system as a whole is to be scaled down, the place of entitled wrongdoers is in prison.

3. Retribution is perceived as a catalyst for change. When a person of privilege is called upon to answer for crimes and wrongdoing, the general perception is that a just outcome–one that would provide appropriate, harsh retribution–will have trickle-down effects on social justice and in general on the public good. These morality tales are “conversation starters” that are perceived to bring about reckoning, understanding, and important steps toward remedying structural inequalities.

Key Areas 

1. Police violence and lethal force. Frank Zimring’s recent book When Police Kill offers some excellent reasons why our essential struggle against police violence should not focus on the prosecution of individual police officers to the exclusion of training and other forms of systemic reform. And yet, the issues that tend to galvanize large popular movements for police reform have to do with the perceived inadequacies of the criminal justice system in bringing cops to justice, charging them, or convicting them. As we now know, the criminal justice apparatus in Ferguson was broken long before Michael Brown’s killing, but the killing galvanized the activists, focusing on Darren Wilson as the face of evil as opposed to looking at the systemic problems (if you have read the grand jury transcript, you have probably realized that this was actually a difficult decision.)

2. Sexual assault and #metoo. The overall commendable #metoo movement started a wave of admissions and sharing on the part of victims of sexual misconduct, but rather than inviting a dialogue about how to reimagine social spaces in which everyone is treated with dignity and respect the movement has tended to focus on bringing down people in high-profile cases (Weinstein, Kavanaugh, and Brock Turner.) This reached a particularly low point with the campaign to recall Judge Persky, which penalized a judge for paying attention to a probation report of a convicted criminal that many people perceived as getting off leniently because of his race and social advantage. The outcome is communicating a message of harshness to judges, and the first people in line to suffer will not be people of social advantage.

3. Bigotry and hate crimes. Oakland Mayor Libby Schaaf recently argued on behalf of changing the burden of proof in hate crime cases. The presumption of innocence, in other words, only exists for people we like. Beyond the dangerous slippery slope that such proclamations might create, in general the movement has focused on taking individual examples of racists and bigots and making the destruction of their reputation into the focus of the movement’s energy (I’m thinking of the mariachi party below the home of the lawyer who spewed racist epithets at Spanish-speaking restaurant workers.)

Challenges and Problems

1. The emphasis on punishment of individual wrongdoers as an educational lesson confounds personal pathology with situational evil. The lessons of Milgram and Zimbardo are well taken: bad behavior, including what looks like cruelty and sadism, is largely situational. It is perhaps ironic that movements that set out to prove just how situational and prevalent bad behavior was end up confounding their raison d’être by pursuing remedies in the form of punishing individuals as if the source of the problem is their personal pathology.

2. The dependence on courts (“case and controversy”) means that whatever ends up the lightning rod for ire is largely left to chance, or to a movement’s preferences and idiosyncrasies. Sometimes, instances of poor behavior–racism, sexual assault, police brutality–that come to light in the context of an individual lawsuit are less egregious than the ones that remain in darkness. But because grand juries and courts take cases on a case-by-case basis, we are not really getting an idea of the scope and breadth of a particular problem by looking at a particular case.

3. The emphasis on criminalization draws efforts away from other laudable, systemic reforms, that don’t enjoy as much public appeal. The movement for reform only has so much energy, and it has to be spent in directions that might prove most productive. To focus a movement on mobbing and stigmatizing one particular person is to spend finite capital–money, time, verve–on a particular case under the unproven assumption that the case will produce systemic change.

4. Reifies victimization to a point that is unhealthy not only to offenders, but also to the victims themselves, and sets up “victimization competitions.” The victims rights movement from the right brought us many of the excesses of the 1990s and the 2000s, and the current victims rights movement from the left, albeit less destructive on the grand scale, can bring similar destruction to people whose victims get the talking stick with the current movement. But more importantly, we’ve taken from the right the notion that a necessary condition to being heard is claiming a status of oppression and victimization, which requires people to marinate in their victimization experience longer than their healing would require. It also pits some victims against others–namely, those that would complain versus those who wouldn’t.

5. Rankles potential allies and closes avenues for cooperative, inclusive discussion. If the ultimate goal is to bring about social change, ideally the people at the table include those whose behavior we want to change. But when the weapons of choice are stigma and calls for incarceration, it is unlikely to get people to the table with the spirit of cooperation that, say, a truth and reconciliation committee might induce.

6. If it fails–which it often does–sets us back, and while raging against it feels productive, it doesn’t really produce change. Rage, I find, is not a finite quality that one can express once and then be liberated from it. Rather, rage is generative, and it produces more rage. With the animus that comes with rage, one might feel that one is being productive. But the recent rage-filled calls for more prosecutions and more punishment have not really yielded anything, and whenever the call is not fulfilled, the rage is an indication that we are still where we were before–and something more for the other side to pick on.

7. It is not without ambiguity when identities collide. Case in point: “Cornerstore Caroline” who complained about being harassed by an 8-year-old boy (the complaint was unfounded). If we’re all about believing victims, where does that leave the boy? If we’re all about empowering people of color, where does that leave their victims when they commit crime? The universal appeal to “intersectionality” leaves these dilemmas without easy solutions, because the movement confounds the rule of thumb in individual cases (find out the facts and then see what is credible) with the ideological edict to categorically believe or disbelieve specific groups of people.

What Should We Do?

1. With regard to systemic problems, focus on systemic solutions. I often think that these crazy times call for truth and reconciliation commissions after all this is over, because the public debate is so toxic and partisan. There are evils that are rampant, and those need to be fixed through an inclusive conversation and a commitment to training, early education changes, whatever it takes, because spending all the poker chips on a grand jury proceeding of one cop doesn’t really offer us as much benefit as systemic reform.

2. Let go of schadenfreude and mobbing. Think a moment before piling on someone online and calling for their firing, incarceration, or otherwise destruction of reputation. If it’s all about laughing at someone else’s expense, find better things to do with your time.

3. Focus on doing more and saying less. Expressionist tactics have their place – they lift morale and make people feel that they’re not alone. But when the shit hits the fan, it’s not the marches and the op-eds that make a difference: it’s voting, knocking on doors, and donating money. While all avenues for social change are important, it’s time to tilt the balance back toward action and away from symbolic expression – just in time for you to vote in the midterms.

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