Nov. 2020 Ballot Endorsement: No on 20

Many Californians don’t know that our state Constitution requires that any voter initiative have a single subject: “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” You wouldn’t know this from looking at our convoluted, confusing, oft-misleading propositions because, as my colleague Mike Gilbert explains here, the rule is very difficult to enforce.

Prop. 20 is an example of a voter initiative that quite possibly violates the single subject rule. It bundles together four different issues under the general “tough on crime” umbrella. While I find at least two of them deeply objectionable on the merits and have serious problems with the remaining two, what really irks me is the marketing: law-and-order supporting folks are being lobbied to vote for things which are, frankly, untethered from reality, simply because they are ideologically bundled with other stuff that belongs on that side of the political map. My message to everyone, from ardent law-and-order people to rabid abolitionists: Vote no on this stupid package.

The first item in the package is the introduction of two new theft crimes. Background: In 2014, California voters approved prop. 47, which changed the designation of several theft-related offenses from felonies to misdemeanors. This is how we’ve been able to achieve the Plata-mandated prison reduction with no increases in crime rates. Prop. 20 proponents would have you think this is a bad thing, and to remedy our apparent shortage of theft crimes, you’d now have two new wobblers: “serial theft” and “organized retail theft.” “Serial theft” would be shoplifting or petty theft for someone with two prior theft convictions (because apparently we’re hurting for habitual offender enhancements, too.) “Organized retail theft” would be shoplifting or petty theft in concert with other people two or more times within six months. Both of those crimes will be punishable either as felonies or as misdemeanors. Theft, and various theft-like offenses, are still crimes in California, as they’ve always been, and the $250 limit placed by Prop. 20 is way lower than inflation would allow for (just to give you an idea, in 2014 we raised the minimum amount for grand theft to $950.)

The second issue is another effort to fix something that isn’t broken–Prop. 57, which California voters approved in 2016. Under Prop. 57, people convicted of nonviolent offenses with “enhancements”—special provisions that add years to their basic sentences, for example, because of prior convictions—come up before the parole board at the end of their basic sentence, and the parole board may recommend their release after considering their criminal history and behavior in prison. Proposition 20 would change the designation of some offenses from “nonviolent” to “violent”, to make some people ineligible to come up before the parole board, and would create a waiting period of two years before people denied parole under prop. 57 can come up before the Board again. It would also add restrictions to parole board considerations. I’m going to humbly suggest that parole in California is something I actually know a little bit about and tell you that this is absolute nonsense. Getting out on parole in CA is extremely difficult, parole hearings are Kafkaesque, and the last thing we need is pile more difficulties in the path of people who pose low reoffending risk. To appeal to people for whom the word “victim” is a talisman for righteousness, they threw in the need to consult with victims, but guess what: victims are ALREADY NOTIFIED of Prop. 57 hearings, and if they want to get involved, they get registered with the state. This proposition would drag into the punitive rhetoric net even victims who are not registered with the state. For what purpose, if these folks themselves are not interested in participating?

The third part of Prop. 20 would expand our DNA collection practices. Currently, California collects a DNA sample from people arrested or charged with felonies. If Prop 20 passes, DNA samples will be collected from people who are under arrest for certain misdemeanors. Many people have qualms about expanding DNA databases, on account of the mistakes that can happen. I suspect that, in the aftermath of the successful DNA-based prosecution and conviction of the Golden State Killer, this is not going to be super persuasive; I also submit to you that DNA databases have the potential to clear and exonerate, not only to convict, and I would therefore be willing to entertain pros and cons of this part of Prop. 20 if it came to us on its own, without the other issues. As it is, it’s not worth the price and expense of reversing two highly beneficial initiatives that reduced incarceration without risk to public safety, so I’m still firmly on the “no” side.

Finally, Prop. 20 also involves various changes to community supervision of people released from prison or jail. Currently, people released from jail, or from prison for nonviolent or nonserious crimes, are supervised in their counties. If Prop. 20 passes, probation officers will be required to ask a judge to change the terms of supervision if the person under supervision violates them for a third time. In addition, the proposition requires state parole and county probation departments to exchange more information about the people they supervise. In community supervision matters, it’s all about the details, and these are technical issues that are unsuitable for resolution via a yes/no political referendum.

The complicated structure of Prop. 20 makes it difficult to estimate the expense involved in its implementation. Because the proposition overall would lead to more and longer incarceration—more severe crimes, less opportunity for parole—there would be cost increases associated with it. The only silver lining here, and this tells you something, is that a sane court will find that the two first aspects are unconstitutional and strike them down, which will mitigate the expense of incarceration (but require litigation.) In other words, if it ain’t broke, don’t fix it. Vote No on 20.

New Outbreak at CIW: Van Houten’s Fate in Gov. Newsom’s Hands

After a spike in early June and an apparent abatement, COVID-19 is once again tearing through the California Institute for Women (CIW) in Chino. In the last 14 days, the prison tested 1,200 of its 1,413 residents (housed in a facility designed to hold 1,398 people – slightly above 100% capacity.) The testing count on the tracking tool seems to suggest testing done in batches, but we don’t know how they are managing isolation in a crowded facility–hopefully not taking a page from the book of this women’s prison in Texas.

CIW is of special interest to me, because a few days ago we learned that Leslie van Houten, who is serving her sentence there, has been yet again recommended for parole. Van Houten has been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what seems to me, after having pored over 50 years’ worth of her prison record, purely political reasons. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.

I mention van Houten’s case because it is emblematic of the dilemma that Gov. Newsom faces with countless other cases. The right thing to do is to release older prisoners, who are more vulnerable to the virus; these people, who serve long sentences, are serving them for violent crimes they committed decades ago. Everything we know about life course criminology supports the prediction that they pose no risk to public safety–they themselves face a risk by remaining behind bars.

In Yesterday’s Monsters I explain how the Manson family cases came to shape California’s extreme punishment regime, and how these cases were impacted by this new regime in turn. This is the chance for a politician who has consistently ran, and prevailed, on a platform of doing the right thing in the face of baseless political pressures. There is no ambiguity about the right thing to do now. Van Houten is 70 years old, has been consistently found to pose very low risk to public safety by actuarial instruments and by everyone who has interacted with her, and there’s a pandemic going on.

Van Houten is not the only person at CIW facing these risks. Just a few days ago, advocates were overjoyed to welcome home Patricia Wright, a 69-year-old cancer patient who doctors say has mere months to live, after she served 23 years in prison. Wright’s release encouraged me, given the infuriating and heartbreaking scene just eleven years ago at Susan Atkins’ last hearing. Perhaps the pandemic is driving home, finally, the message that allowing an older person to die at home with their loved ones, or live out in peace the few years they have left, is not a weakness, nor a slight to the victims. Perhaps it is driving home the message that compassion is an essential component of our humanity. Will Gov. Newsom choose to do the right thing for van Houten and other women at CIW, from both public health and public safety perspectives, or will he succumb to unfounded public pressure, hysteria, and fear?

How to Reduce California’s Prison Population by 50%

Today’s Chronicle features a great article by Bob Egelko, which tries to parse out who is responsible for the San Quentin catastrophe. Getting into the chain of command that made the botched transfer decision might come in handy at a later date, I think, when the time comes to file the inevitable (and more than justified) lawsuit. But, as I said in the article, the time to squabble over who’s at fault has not come yet. Right now we must have all hands on deck, including Gov. Newsom, Mr. Kelso, and Mr. Diaz, making prison releases their absolute top priority.

By now, regular readers of my COVID-19 prison crisis posts know that Gov. Newsom’s plan to release a mere 8,000 people over the course of the summer will not suffice to curb infections, illnesses, and death in prison. You also know that, at least with regard to San Quentin–an antiquated facility that lacks proper ventilation–the physicians at AMEND recommended an immediate population reduction by 50%. But how is it to be done?

The #StopSanQuentinOutbreak coalition, and the Prison Advocacy Network (PAN) have useful, well-researched answers, which are encapsulated in the lovely infographic above. Here are the coalition’s demands, and here’s the PAN page offering legal resources and pathways to release. I want to spend this post getting into the particulars. Before doing so, though, I need to explain a few important things.The Prisoner Advocacy Network has a list of pathways to release.

A lot of the categories in Newsom’s current release plan make sense and show evidence of public health thinking. They are considering age, medical condition, and time left on people’s sentences. The problem with the categories is that they are unnecessarily restrictive, and I think the restrictions can be attributed to two hangups that many people, including well-meaning, educated folks, share about prison releases: the fear that releasing a lot of people is going to be hugely expensive and the hangup around the violent/nonviolent distinction. So let’s tackle these two first.

Get over the hangup of re-entry costs. You may have read that BSCC is considering offering $15 million to CDCR, and might wonder how we can possibly pay for housing, temporary or permanent, of tens of thousands of people. Of course this is going to cost money; the question is, compared to what. It may shock you to learn that, in the 2018/2019 fiscal year, the Legislative Analyst’s Office estimated that the average cost to incarcerate one person in California for a year was $81,502 – more than a $30k increase since our recession-era prison population reduction in 2010-2011. How much does it cost to help such a person for a year, when their healthcare is funded by Obamacare, rather than by CDCR? Here’s a PPIC report from 2015 detailing alternatives to incarceration. Specifically with regard to COVID-19-related reentries, here’s another great infographic detailing what the needs are going to be. The big one is housing, and there are organizations on the ground that are set up to help with that. Even with transitional housing costs, this does not add up to $80k per person per year.

Get over the hangup of making the violent/nonviolent distinction. I am still seeing lots of well-intentioned folks who read Michelle Alexander years ago tweeting about how ending the war on drugs (with or without the hashtag), or focusing on so-called “nonviolent inmates” is the key to fighting this outbreak. I can’t really fault them for this misapprehension–what I can do is repeatedly present you with facts to correct it.

Take a look at the graph below. It comes from CDCR’s population data points from 2018. You will note that the vast majority of people in California prisons are serving time for a violent offense. Drug convictions are the smallest contributors to our prison population (this is of course not true for jails or for federal prisons; I’m talking about the state prison system.) I know we all love to say “dismantle” these days, but dismantling the war on drugs will do very little to reduce state prison population.

Now, take a look at CDCR’s Spring 2020 population projection. What you see in the diagram below are the reductions in population since 2010, and some projections for the years to come. The two big reductions were in 2011, following the Realignment, and, to a smaller extent, in 2015, following Prop. 47. Both of those propositions diverted drug offenders to the community corrections systems–jails and probation. If you care about the injustices of the war on drugs, your heart is in the right place, but this is simply not the most dire problem we are facing in the context of prison population reduction.

It is easier to talk about drugs and nonviolent offenders, because these are typically categories of people that evoke more sympathy from the press. My colleague Susan Turner at UCI has shown that risk assessment tools, when used properly and carefully, yield dependable predictive results, and these are not correlated with the crime of commitment. Because we were so married to the idea that only nonviolent folks need help and public support, our three major population reduction efforts–Realignment, Prop 47, and Prop 57–missed the mark on getting more reductions for little to no “price” of increased criminal activity. Whenever you see a headline lambasting the Governor or the Board of Parole Hearings for releasing a “murderer,” immediately ask yourself the two relevant questions: (1) How old is this person now, and (2) how long ago did they commit the crime? The answers should lead you to the robust insights of life course criminology: People age out of violent crime by their mid- to late-twenties, and at 50 they pose a negligible risk to public safety. Moreover, what a person was convicted of doesn’t tell you a full story of what their undetected criminal activity was like before they were incarcerated. Take a look at the homicide solving rates in California, as reported by the Orange County Register in 2017–a bit over 50%–and ask yourself whether the crime of conviction is telling you a story with any statistical meaning.

In short, my friend, take a breath, let go of your attachment to the violent/nonviolent distinction, and let’s find some real solutions. The #StopSanQuentin coalition has a more in-depth breakdown to offer. Generally speaking, the legal mechanisms to achieve this reduction were identified by UnCommon Law in their letter to the Governor–primarily, early releases, commutations, and parole. Section 8 of Article V of the CA Constitution vests the power to grant a “reprieve, pardon, or commutation” in the Governor. The Penal Code elaborates and explains the process. Section 8658 of the California Government Code provides an emergency release valve: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution.  He shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that is not possible, may release them.  the Governor has the authority to grant mass clemencies in an emergency.”

To begin, there are some bulk populations which, if targeted for release, can deliver the kind of numbers we need to stop the epidemic. These three populations largely overlap, which might make it easier to tailor the remedies to capture the right people. About half of the CDCR population are people designated “low risk” by CDCR’s own admission. CDCR uses risk classification primarily for housing purposes, and their methodology–as well as their practice of overriding their own classification–have been found by LAO to be in dire need of overhaul. LAO and other researchers believe that CDCR’s use of the “low risk” category is too restrictive, and their exceptions to their own classification come from hangups around issues of crime of commitment. This chart from the LAO report tells a useful story: Most of our prison population is doing time for violent crime, and a quarter of it is 50 and older; given the length of sentences for violent crimes, and the fact that a quarter of CA prisoners is serving decades on one of the “extreme punishment trifecta” of sentences (death, LWOP, or life with parole), it’s not difficult to figure out where the older, lower risk people fit in.

Between a quarter to a third of the prison population, depends on how you count: People who have already served a long sentence. This is the time to question the marginal utility of serving a few more years after being in prison for decades. According to the Public Policy Institute of California, About 33,000 inmates are “second strikers,” about 9,000 of whom are released annually after serving about 3.5 years. Another 7,000 are “third strikers,” fewer than 100 of whom are released annually after serving about 17 years. Approximately 33,000 inmates are serving sentences of life or life without parole. Fewer than 1,000 of these inmates are released every year, typically after spending two or more decades behind bars.

23%: People Over 50. Not only does this population intersect with lower criminal risk and higher medical risk, it also correlated with cost. According to the Public Policy Institute of California and Pew center data they cite, in fiscal year 2015 the state spent $19,796 per inmate on health care–more than thrice the national average.

To this, we can add a few smaller populations, numbering a few thousand each. Let’s start with people on death row and people on life without parole, who have been exempted from pretty much any release valve possible. The Governor has the authority to commute both of those sentences to life with parole today, and this is probably the right course of action anyway, pandemic or no pandemic. We have a moratorium on the death penalty, which means no one is getting executed but we are still paying for expensive capital punishment litigation. Cut out the middle man and shift all these folks to life with parole. I talk about how these three sentences are indistinguishable anyway in Yesterday’s Monsters, chapter 2.

There are also, apparently, a few hundred people still incarcerated who have been recommended for parole and approved by the Governor–coalition members have identified a few dozen in San Quentin alone. If these people have been given the green light to be released, why are they still behind bars? As for people who have been recommended for release and still awaiting the Governor’s authorization, now’s the time to expedite that.

Finally, lifting the offense limitations on people from outbreak epicenters, people with medical conditions, and the like, should expand those numbers considerably, given the significant overlap between crime of commitment, length of sentence, age, and health condition.

My point is that all of this is eminently doable, and there would hardly be any downsides. If we can just let go of the tendency to view only one side of the cost equation, and of our hangup about the nonviolent/violent distinction, we can scale up the proposed release plan to the point that it will be effective. Let me end with this thought: Gov. Newsom announced that the goal is to reduce San Quentin population to close to 100% of design capacity. In a sane world, prisons that are at 100% occupancy are not a goal. They are a starting point.

August 14 Update: Jason Fagone has a gorgeous piece in today’s Chron explaining how we could achieve a 50% reduction today, with negligible impact on public safety.

The Last Whiplash of the Balrog

In J.R.R. Tolkien’s Lord of the Rings, the Balrog is an ancient monster, a relic from times past, who lurks beneath the surface. When the Fellowship of the Ring crosses the Bridge of Khazad-dûm, they provoke the Balrog, who angrily attacks them. Gandalf, the wizard, successfully fights the monster, but at the very last minute, as the Balrog plunges to its death, it flings its whip one last time, capturing Gandalf and dragging him along into the abyss.

The U.S. death penalty in the 21st century is like the Balrog—an ancient monster, a relic from times past, still grasping and lashing its whip even as it approaches its demise. The score, state-by-state, is even: 25 states have retained it, 22 states have abolished it, and three (including California, home to the largest death row in the country) have instated moratoria upon its use. Even in retentionist states, the rate of executions has slowed down to almost a grinding halt, and initiatives to abolish the death penalty frequently appear on the ballot. Paradoxically, as Daniel LaChance explains in his book Executing Freedom, it retains the support of the majority of people even as it loses practical ground. Much like people on death row, most of whom die natural deaths after decades of incarceration and litigation, the death penalty itself is dying a slow, natural death. This is a confluence of several factors: recession-era politics that drew attention to the immense, disproportionate expenditure on capital punishment; the rising prominence of the innocence movement, which shone a light on the widespread problem of wrongful convictions; and the Obama-era attention to racial disparities in criminal justice, among others.

Tolkien is a master storyteller, and he sets up the moment when the Balrog’s whip ensnares Gandalf as poignantly tragic—a sudden, unnecessary reminder that, even at its demise, the archaic still has bite. This is how last week felt. Taken together, the decision in Barr v. Lee and the three executions that followed were a persuasive catalogue of the evils of the death penalty, straight out of the abolitionist playbook.

First was the decision itself, which followed the expected 5-4 pattern. In the spirit and tradition of death penalty litigation in the last few decades, it revolved around what Justice Harry Blackmun referred to in the early 1990s as “tinkering with the machinery of death.” Blackmun could afford a direct, stop-beating-around-the-bush approach to the tiresome and technical minutiae of postconviction litigation, but capital defense lawyers cannot; arguments about human rights and racial disparities have long been futile, for various procedural reasons, and the limits of the sayable on appeal and on habeas revolve around chemicals and number of injections. Justice Breyer’s dissent echoed Blackmun’s distaste with what death penalty litigation has become, remarking, “[t]his case illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishmen[t]’”. Justice Sotomayor, in turn, remarked on the absurdity of doing justice to fundamental questions via “accelerated decisionmaking.”

Then came the three executions, the first sneaking up on the American public while we were sleeping in our beds. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victim’s families to spare him the death penalty. The judicial and executive branches’ trampling of the victim’s requests followed the usual capital punishment theater in which, as Sarah Beth Kaufman explains in her new book American Roulette, prosecutors, governors, and death penalty advocates use victims as a prop, assuming that punitiveness is faithful to their wishes. As I documented in my book Yesterday’s Monsters, in California (as in other states) the voice of victims has been captured by a small group of white, middle-class victims of stranger homicides which, albeit sincere about their own punitive sentiments, do not represent the demographics or wishes of most survivors of violent crime. The first-ever national survey of crime survivors paints a more realistic picture. Twice as many victims prefer that the criminal justice system focus more on rehabilitation than on punishment; victims overwhelmingly prefer investments in education and in job creation to investments in prisons and jails, by margins of 15 to 1 and 10 to 1 respectively; by a margin of 7 to 1, victims prefer increased investments in crime prevention and programs for at-risk youth over more investment in prisons and jails; 6 in 10 victims prefer shorter prison sentences and more spending on prevention and rehabilitation than lengthy prison sentences. The assumption that the only good victim is a punitive victim does not have a factual leg to stand on.

The execution that followed was of 68-year-old Wesley Purkey, who was described by his lawyer, Rebecca Woodman, as a “severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease” and does not understand “why the government plans to execute him.” The debate over Purkey’s mental illness was emblematic of the decades and billions of dollars spent poring over the fitness of elderly, decades-long death row residents, for execution. Reading of Purkey’s execution reminded me of how COVID-19, which is ravaging San Quentin’s death row as I write this, is making a mockery of our state’s well-intended moratorium. More people on death row have died of the virus during this moratorium than have been executed by the state in the entire century, which in itself should raise serious qualms about the ethical validity of the debate whether this or that individual is healthy enough to be killed by their government.

Finally came Dustin Honken’s execution, which offered a grim reminder of the gap between the inexplicable federal enthusiasm for executions and the waning interest of states in the penalty. Honken is the first person from Iowa to be executed since 1963; Iowa abolished the death penalty in 1965. Honken’s lawyer, Shawn Nolan, said, “There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.”

In her dissent, Justice Sotomayor expressed concerns about the procedural framework used to greenlight these three executions, a grant of the federal government’s emergency application, which “inflicts the most irreparable of harms without the deliberation such an action warrants.” But my deeper concern is about the inexplicable zeal that animated the emergency application in the first place. As a deadly pandemic ravages cities and towns, as the American public wakes up to the fragility of human life, the federal appetite for cheapening it by pursuing human-inflicted killings in the name of dated approaches is astounding. That it is in step with the Trump administration’s embrace of old-school punitivism does not make it any less perplexing, nor any less tragic. The Balrog of the death penalty is taking its last steps, but its last whiplash, an echo of what passed as justice in the olden days, stings as viciously as ever.  

The Meaning of Life: A Friend’s Murder and the Recent Federal Executions

I was quietly reading Robin Wall Kimmerer’s Braiding Sweetgrass and thinking about yesterday’s post on the interconnected dance of life, when Facebook, with its indelible memory, reminded me: It is six years to the day that my colleague Dan Markel, a criminal law professor at Florida State University, was murdered, shot to death in his garage.

The sensation of shock, like unsavory gray smoke filling my lungs, making me nauseous with incomprehension, has stayed with me, and seems to have been universal. Dan was so alive–isn’t that what is always said of the dead?–a true, energetic community builder, the architect of Prawfs Blawg, the inaugurator of CrimFest, both of which have outlived him. A loving father to his two young boys, of whom he always spoke with such affection. The nauseating smoke whispered, how? why? who? Theories spread among Dan’s friends and colleagues; blogs were ablaze, picking up the shreds of Dan’s life, looking for some conflict, strife, danger, something that would explain the unexplainable. Underneath it all, unspoken save, perhaps, in the offices of my friends’ therapists, was the uncomfortable but true realization, this doesn’t just happen to someone I know. People living comfortable lives of safety and social advantage, lives that do not grow in the shadow of street violence or require it, were deeply unsettled. If we could only find out why, we felt, perhaps, this senseless thing will make sense; something in Dan’s life, in his relationships and entanglements, would make sense of this out-of-place death.

The mystery of Dan’s murder lingered on, picking up steam occasionally on blogs, for two years. Whenever I met other friends and colleagues of Dan’s, we shook our heads. “We just want to know what happened,” we said. The aching gap Dan left in the professional and social fabric of our trade was lovingly mended by friends who took the mantle of organizing. Then, two years later, we found out. It was sordid, disturbing, the stuff of low-grade cold-crime television shows in which a deep-voiced anchor dramatizes the events. They were Luis Rivera, 33, and Sigfredo García, 34, murderers for hire, and the only plausible connection between them and Dan was the mother of García’s children, Katherine Magbanua, who was dating a rich Florida dentist, Charlie Adelson.

Adelson was Dan’s brother in law. Dan and his ex-wife, Wendi Adelson, had divorced in 2013, and were amidst an ugly custody battle; Dan had won an order prohibiting Wendi from moving to Miami with the children, and filed a motion that would have prohibited Donna, Wendi’s mother, from being alone and unsupervised with the children due to alleged disparaging remarks about Dan. The investigators alleged Magbanua made the connection between the Adelson family and Garcia , that she received a large amount of money from the Adelsons following Dan’s murder, and that Magbanua was the first call Garcia dialed after Markel was murdered.

All this added up to arrest warrants against García, Magbanua, and Rivera, but not against the Adelsons. Despite repeated efforts to trip them, they have eluded law enforcement efforts at gathering more evidence against them. Rivera turned state witness, García was convicted, and Magbanua, who remained steadfastly silent even in the face of a threat with Florida’s death penalty, won a mistrial (ten jurors voted to convict, two to acquit.) Magbanua is to be retried for the murder. Much as I find it loathsome and distasteful to lionize and sanctify the three apprehended parties to a murder-for-hire because they are “poor people of color,” I can understand and empathize with the sentiments of injustice: the rich and powerful have managed to escape all consequences of their likely actions. Given what we know, what plausible explanation could there be for all this except the Adelsons’ desire to get Dan out of the way? Not one member of the Adelson clan evokes even a shred of sympathy: In a particularly cruel move, Wendi Adelson immediately proceeded to remove Dan’s last name from those of the children and denied them contact with their paternal grandparents. And yet, the police claims not to have cobbled enough probable cause for an arrest.

Thing is, what I think happened and what the law, which requires stringent beyond-reasonable-doubt proof, asserts happened, are two different things. The law does not operate in a vacuum, and people of means have many ways to insulate themselves from incriminating behavior and paper trails. I know many of my friends and colleagues who grieve for Dan hope for justice in the form of criminal consequences for the Adelsons. Much as I fail to comprehend the moral makeup of the Adelsons, I’ve always been pretty clear on the fact that I would not feel even a little bit better about this tragedy if I heard that the police arrested Donna, Charlie, or Wendi. Moreover, I didn’t feel relieved or vindicated when the police waved the threat of capital punishment over Katherine Magbanua’s head. Not only did it not work, in Magbanua’s case, and not only does this use of the death penalty as a bargaining tool create ugly disparities between sentences in abolitionist and retentive states, but I found the whole entanglement with the worst aspects of Florida’s criminal justice system tasteless given Dan’s own scholarly stance against the death penalty. My conversations with many of Dan’s friends and colleagues revealed that they, too, felt like knowing what had happened and making their mind about the culprits was sufficient. What horrors, albeit deserved, could the criminal justice system possibly visit upon the Adelsons that would make us feel better about the grievous loss of our friend?

I’m not particularly surprised that so many people’s grief over Dan’s death didn’t manifest as a desire to see his killers–all of them, including the ones too dainty to pull the trigger–harshly punished. I see the same from families and friends of homicide victims all the time. The first-ever national survey of crime survivors show that victims are far less punitive than Twitter would have you believe.

Not everyone is nonpunitive, of course. The Tate family, whom I discuss at length in my book Yesterday’s Monsters, were instrumental in shaping public perception of what victims want, as was Mark Klaas. I don’t think any of these people has been manipulative or insincere or has not suffered unimaginable pain; I do think, however, that their voices are mistakenly assumed to represent what most victims want, which is not the real picture. Nor is this an illness particular to the conservative right; the fault lies just as much with the folks who wrote fashionable pieces about how Jean Brandt’s act of faith and forgiveness toward Amber Guyger was “problematic” in that it “allowed whites to benefit from black forgiveness”, because some people on the left are apparently so enlightened that they can educate people on how to properly grieve their relatives. I saw the same dynamic in some of the astonishing reactions on Christian Cooper’s sane and measured response to the police investigation of Amy Cooper’s false complaint about him to the police, those accusing him of “performing a disservice” to African Americans nationwide, because apparently (1) everything has to be a performance and (2) the only true path to social justice is through arrests, charges, and convictions.

Why is all this making me so sad today? Because amidst these frightening times, that should by right make all of us deeply grateful for life and concerned to preserve its fragility, incomprehensibly, the federal appetite for executions reached a boiling point, and sometime last week, while we were all asleep, the Supreme Court kosherized three executions. Each, in its way, highlighted the deeply misguided aspects of the death penalty. Daniel Lewis Lee was put to death against the express, vocal, and repeated wishes of his victims’ families against his execution. Wesley Purkey’s execution of a “severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease,” whose lawyer, Rebecca woodman, said does not understand “why the government plans to execute him” was a grim reminder of the idiocy of incessant, expensive litigation to ensure that people are healthy enough to be killed by the state; And Dustin Honken’s attorney, Shawn Nolan, underscored the fallacy that people are unchanging and irredeemable: “”There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself.” In keeping with the usual pattern of death penalty litigation, which Justice Harry Blackmun called “tinkering with the machinery of death“, the dissents were all about method and process, rather than about the heart of the matter.

That this–a reaffirmation of our government’s commitment to a punishment that is, itself, dying a slow death (like many of death row inmates themselves)–is our takeaway from this pandemic, is mind boggling, but I see the same mentality among those wondering why we worry about people on California’s own death row catching COVID-19. Being on death row is hardly a natural consequence of one’s actions, as so many of my colleagues have explained over the years, and so the shrugging of shoulders, accompanied by a more or less crude version of “you do the crime, you do the time” or “we have to make priorities” astounds and perplexes me. As we inch toward November, the urgency of a vote that affirms everyone’s value in the dance of life becomes clearer and clearer. And then, we begin the hard work of reshaping the arc of progress, which has taken a very, very wrong turn.

Stretching Compassion to Difficult People: Is Abolitionism Only for People “We” Like?

Fifteen years ago, the LGBTQ community in Israel was reeling from a vicious stabbing attack by Yishai Schlissel, an Ultraorthodox Jewish man, at the Gay Pride in Jerusalem, which claimed the life of 16-year-old Shira Banki and injured several others. Some friends and I–legal scholars and members of the LGBTQ community–were invited to participate in a public panel whose goal was to advocate for broader criminalization and increased punishment for violent hate crimes. I found myself wondering: isn’t murder already a crime? Would more decades in prison for Schlissel bring Shira and other innocent victims back? And what does that say about our commitment to other progressive goals, such as humanizing (or defunding) law enforcement and decreasing (or eliminating) incarceration? Are we single-issue fanatics or do we see the bigger picture? Are we only aboard the abolitionist train when we talk about people we like?  And when people we dislike are on the agenda, are we part of the carceral problem we so vehemently disavow?

These internal contradictions have been on my mind for many years, both in Israel and in the U.S. The last decade of punishment and society scholarship has seen an expansion in the circle of blame for mass incarceration in the United States. There certainly is plenty of blame to go around; even with the salutary recession-era turnaround in incarceration rates, the American correctional colossus continues to dramatically eclipse incarceration rates in other countries, its human rights crimes, racially discriminatory policies and outcomes, and financial unsustainability still in plain sight.

Where Are Progressives in the Carceral Blame Game?

Traditionally, the blame for mass incarceration was placed squarely upon the shoulders of conservative Republicans. A subsequent wave, which we see in some newer works as well as in progressive public discourse, pulls centrist Democrats—from Kennedy and Johnson to Clinton, Obama, and Biden—into the circle of responsibility, either through federal legislation such as the 1994 Crime Bill or through “tough on crime” posturing for centrist voters.

But even with these patterns, social movements of a more progressive bend have been granted a “pass” from the blame circle. This is fair when talking about the traditional categories of people subjected to the evils of mass incarceration: poor people of color, whom civil rights advocates and activists seek to help and protect. That these populations are disadvantaged and marginalized is an important argument against mass incarceration (and for abolitionism, for those who identify as such.) But three recent books argue that progressive movements have wrongly excluded from our circle of compassion several categories of people whose criminalized behavior is unpopular–even reviled–in progressive circles: people committing animal cruelty, sexual assault, and domestic violence. All three books provide an extremely valuable service to progressive communities in outlining the broader, negative implications of making crime control the rallying cry of progressives. Moreover, reading all three of them together raises the question I asked when I defined, and wrote about, progressive punitivism: have all Americans, including progressive ones, marinated for so long in carceral logics that we are unable to view the social problems we want to solve through non-criminal paradigms?

After summarizing each of the three books, I will discuss the ways in which they are particular iterations of progressive punitivism, which reveal common mechanisms of progressive carceral activism and policymaking; provide a few theoretical frameworks for understanding progressive punitivism; and raise questions about the viability of an overall abolitionist, or anticarceral, progressive milieu, examining the application of anticarceral perspectives to who I suspect might be the last bastions of criminalization: police officers and white supremacists charged with homicide or assault.

“Abuse an animal—go to jail”: Justin Marceau’s Critique of Carceral Animal Rights Advocacy

In Beyond Cages, Justin Marceau critiques the animal rights movement’s convergence around criminal justice as a vehicle for animal protectionism, encapsulated in the slogan, “abuse an animal–go to jail.” Marceau finds the consensus around this mentality surprising given the diversity and conflict within the animal rights movement; under this mentality, he argues, “the reduction of the suffering of animals is something of a zero-sum game where the increased status of animals is in tension with a less punitive, less carceral approach to criminal justice” (6). But this strategy has strong drawbacks:

Carceral victories do not meaningfully enhance the protection of animals, they do not make humans safer, and the efforts to align the movement, at least at a conceptual level, with the policies and logic of mass criminalization, come at a cost. Propagating the dehumanizing violence of incarceration is not a viable solution to the inhumane treatment of animals. Such a view of the movement – that incarcerating rogue animal abusers will dislodge longstanding social norms about animals – is empirically unfounded and conceptually dangerous (6).

As Marceau explains, from its inception, the animal rights movement’s success came from criminal prosecutions. Stories of abuse of pets, in particular, have been the “low-hanging fruit of outreach and fundraising” (19). Before wide animal cruelty legislation, successes came from a patchwork of litigation, including creative use of customer protection laws. These efforts received rebuke from courts, who steered animal rights organizations toward criminal prosecution as the appropriate path.

As a consequence, the animal protection movement has come to see criminal convictions and harsh sentencing as the hallmark of its success. To guarantee favorable legislation, the movement plays an active role in drafting criminal codes, adding animal cruelty offenses, and raising sentences for violations of these laws. The advocacy for these punitive laws Touting low enforcement rates, that are actually higher than rapes and murders etc.A major success has been raising animal cruelty to the level of a felony, and there is wide support in the movement for mandatory minimums and for charging juveniles as adults. Marceau describes amicus briefs supporting warrantless searches and seizures (primarily through the expansion of the exigent circumstances exception to the warrant requirement), as well as partnering with other organizations to remove minority rights in cases that are primarily motivated by racist animus; Marceau mentions efforts to argue that double jeopardy allows charging a defendant with multiple counts of animal cruelty for the same scheme involving multiple animals—of no benefit to the animal, but allowing for lengthier incarceration.

Relying on harsh animal cruelty legislation, the movement spends enormous resources on prosecution: Animal rights groups provide trainings and advice to prosecutors. The groups pay for expert witnesses and consulting experts, they draft pleadings, they provide hands-on services to police, and in many organizations the interest in securing convictions is part of the strategic conversation. Litigation that implicates law enforcement or that might attract the ire of prosecutors is disfavored, and potentially subject to a pro-prosecution veto. The organizations give awards to prosecutors. In some cases, animal rights organizations bankroll prosecutions by effectively hiring and paying the salaries of members of the prosecutorial team—a practice infested with conflicts of interest. More commonly, animal rights organizations do the investigative legwork behind prosecutions.

Marceau’s critique of this policy is threefold. First, he explains, by expressing punitive sentiments toward people whose empathy toward animals has eroded, “the movement appears to be losing sight of whether it is eroding its own empathy by seeking ever more carceral solutions to animal mistreatment” (13). The punitive coalition tends to target primarily poor, disenfranchised people, absolving the greatest agents of animal cruelty–factory farms–from responsibility, and deploying incarceration and collateral consequence toward disempowered people–including loss of housing and employment and, in cases of undocumented slaughterhouse workers, even deportation. This is not only callous, but ultimately ineffective: There is little reason to believe that animal welfare would be better protected in destabilized communities with entrenched socioeconomic deprivation. Indeed, the movement purports to speak punitively on behalf of animals (whom are found by robust scientific research to be far more forgiving than humans!) only in the context of cruelty to pets, whereas no such punitive assumptions are present where police abuse of companion animals is at stake: “Law enforcement is always right, and they side with animals only when and to the limited extent necessary to advance the incarcerating power of the State” (47-48). This principle is even more salient in the scant support the movement offers to radical activists conducting undercover investigations in factory farm or forms of direct action like open rescue of sick animals. In other words, “[i]n the carceral view of animal law, animals win when prosecutors win” (48.) This shortsightedness as to progressive interests other than harsh prosecution plays out in other legal contexts as well, such as a landmark case in which the movement tried, but failed, to limit abhorrent videos of animal abuse, relying on rationales that would help this single issue but hurt free speech in general, positioning them “in the unique role of a civil rights movement that has consistently urged narrowing interpretations of the fundamental  rights enshrined in the Bill of Rights” (78.)

Second, Marceau highlights the racial underpinnings of the collaboration between the animal rights movement and the carceral state. Animal rights groups, whose membership is “still overwhelmingly white”,  risk alienating people of color further, because “African Americans are not leading the animal protection movement, and the enthusiasm for tough-on-crime policies. . . has an unavoidable racial inflection” (42.) The movement selectively centers and ignores the suffering of racial minorities: even as it relies on analogies between human slavery and the exploitation of animals, which sound tone-deaf to potential allies of color, it supports carceral policies, and pursues individual cases, that exacerbate the stronghold of the racism on the carceral machine. Not only that, but some of its alliances and chosen battles trivialize the suffering of people of color and create a false dichotomy between the interests of humans and animals. In addition, there is a perception that animal cruelty prosecutions are somehow different than other types of crime because they are not tied to race; this misses a strongly racialized history of animal cruelty legislation and enforcement.

Finally, Marceau obesrves that much of the punitive animal rights rhetoric relies on the idea of what he calls “the LINK” theory: a hypothesis that animal abuse predicts violence toward humans. Marceau marshals secondary literature disproving “the LINK” offers a critical assessment of the studies that posited it. He concludes that, while animal abuse is surprisingly common among both violent and nonviolent people, it offers precious little prediction of violence toward humans. Animal rights organizations obfuscate the true scientific consensus, relying on a popularization of “LINK” theories in their plea for harsh punishment. The irony is not lost on Marceau: to say that incarceration is not a mechanism that alleviates this purported propensity for violence is an understatement. Moreover, Marceau argues, when the movement espouses abuse of humans, not only through harsh sentencing and consequences but also through obtuseness and downright ridicule of extenuating circumstances like poverty and mental illness (which correlate with animal abuse), it cannot in good faith claim that it cares about humans.

#BelieveWomen: Aya Gruber’s Critique of Carceral Feminism in Domestic Violence and Sexual Assault

Aya Gruber’s The Feminist War on Crime articulates and critiques the uneasy alliance between feminism and carceral logics. Gruber begins by observing the inconsistencies between feminist protectionist positions toward commercial sex by marginalized women and the puritan approaches (consistent with calls for formal and informal harsh punitive measures) toward sexual misbehavior of men. She explains:

The tension between the over-the-top sexuality and intolerance for imperfect sex reflects contemporary feminists’ struggle to embrace sexual liberation while simultaneously critiquing a hazardous sexual terrain where the burdens of open sexuality fall disproportionately on women. Unfortunately, the existing criminal law discourse of devastating victimhood, righteous indignation, and punishment as ‘justice’ provides a ready-made vocabulary for women’s unease with the disparate nature of sexual liberation. The existing criminal system provides a ready-made remedy in the form of prosecution, conviction, and prison. Condemnation of men’s newly branded criminal conduct and calls for just deserts multiply on social media until feminists’ thoughtful efforts to grapple with a complex issue appear as little more than pitchfork-bearing vengeance, demonstrating that #MeToo has lots its way (15.)

Lest her readers see carceral feminism as a recent product of entitled young, white third-wave feminists participating in online cancel culture, Gruber demonstrates that feminism has shaped and has been shaped by the penal state as early as the Progressive Era. Contrary to the received wisdom that second-wave feminists adopted criminalizing methods out of lack of choice, she finds more complex narratives of criminal culpability and penological appropriateness. Alongside disturbing cases in which rape victims were disbelieved, mocked, and demonized for unchasteness, she finds women prosecuted for adultery and fornication, but also criminal legislation prescribing, and criminal courts imposing, capital punishment for rape, particularly against poor men and men of color. Rhetoric in favor of temperance reflected an animus against druknenness as a precursor to domestic violence and consumption of prostitution services, and was rife with disapprobation for loose sexual mores (such as, for example, in dance halls.) Among the achievements of the white, middle-class movement that combined radicalism with purity was raising the age of consent “so that tolerated seductions could be converted into easily prosecutable rapes” (26.) Particularly, the participation of early feminists efforts to criminalize “white slavery” was drenched in racial assumptions and hierarchies, as efforts to rescue white women (and a small number of Chinese women) from “foreign men, low-class criminals, and ethnic minorities” (28)–a concept which marginalized black slavery and oppression. The result of this successful campaign, the Mann Act, was weaponized in infamous and controversial ways, particularly against men of color. Alongside marginalized women who claimed rape and were ignored because of their identities were white women falsely–and successfully–claiming to have been raped by black men (sometimes fabricating these claims out of thin air and sometimes masking consensual, but frowned upon, interracial liaisons.) Such cases culminated not only in harsh sentencing, but also in rape-based lynching. The “rape-race nexus” (39) continues to loom large in American mythology, relying on stereotypes against immigrants and racial minorities.

After the progressive era, punitive energy in the feminist movement waned. Second-wave feminism emerged initially as a radical, antiauthoritarian reaction to the Vietnam war and oppressive capitalism, and its initiatives mostly reflected mistrust of the police–an arm of “the Man”– and sisterhood assistance (for example, through the establishment of battered women shelters as an alternative to the state.) Even the antirape movement, characterized in the late 1970s by Take Back the Night (TBTN) rallies (and fueled by terrifying, albeit rare, stranger-rape cases), was not carceral in nature, and sought more funding to empower and assist women against a variety of “violences”–systemic, social, and institutional. In some cases, however, the portrayal of rape victims and sex workers as modern-day slaves overlapped with conservative sex-panic discourses. Within a few years, second-wave feminism largely shifted its position to advocate for more law enforcement and prosecution. Gruber uses domestic violence activism to highlight this transformation. She describes the shelter activists of the early 1970s who sought to “upend[] the patriarchal structure of marriage” (50) and the establishment of the National Coalition against Domestic Violence; the radicalism and separatism of these organizations was an uneasy fit for women of color because of its blindness to intersectional issues, and the enforced separation from batterers that they advocated offered little benefit to poor women who depended on male partners for subsistence. Gruber then describes the battered women’s movement, whose punitive position toward individual abusers was epitomized in class action lawsuit Bruno v. Codd (1976), in which feminist lawyers argued that domestic violence victims have a right to police assistance and intervention. In the 1980s, feminist efforts to obtain accountability dovetailed with the shifting national politics under the Reagan administration to paint marginalized populations as perpetrators of their own misery, with domestic violence and sexual victimization as powerful examples.

The feminist depictions of police officers as patriarchy-supporting brutes failed to acknowledge the more complex (albeit still masculinist) ambivalence of community-minded officers who saw domestic violence as indication of deep-seated problems they felt unable to address in a typical police-like manner. In targeting individual male offenders, feminist lawyers’ depictions of the domestic violence problem deviated from those of family violence researchers, who identified socioeconomic and psychological dimensions of the problem, and who examined women’s violence as well as men’s. Legal feminists touted (and, as Gruber argues, overclaimed and somewhat misinterpreted) a study conducted by Lawrence Sherman and Richard Berk, which advocated for arrests as a solution to domestic violence. This advocacy led to the adoption of mandatory arrest policies, despite new studies that shed doubt on their efficacy; the advocacy for mandatory arrests and harsh punishment took on “a troublingly racialized tone” (91). Gruber’s epilogue to this transformation describes Sherman’s 2015 followup to his 1988 study with Berk, in which he found that the arrest of a partner for domestic violence led to heightened morbidity from a variety of causes among the female victims.

The chosen rhetorical and cultural vehicle for feminist advocacy was victims’ narratives and rights. Because the public was more receptive to some victims’ narratives than to others (rape by strangers versus date rape, for example), feminist narratives tended to rely on poster-children victims who received more public sympathy: white, middle-class, attractive victims of stranger crimes who sought severe punishment. Feminist lawyers made paternalistic assumptions about what was best for victims, believing “that they knew how to manage victims’ safety better than the victims themselves” (105). Even more symbolically powerful was the narrative of the child victim of the sexual predator, which fueled various punitive laws, including sex offender registration, notification, and housing restrictions. Anti-rape and anti-prostitution activists, such as TBTN protesters, relied on fear of violent stranger attack to support their cause, even though acquaintance rape is far more common, and on controversial depictions of the commercial sex industry.

In some cases, the second-wave feminist framework of sex-as-coercion, such as in the context of egregious cases of adults exploiting children, characterized the legal response; in other cases, such as the gradual criminalization of date rape, the liberal feminist framework of consent carried the day over the previous standard of force. Within the framework of consent, feminists sought to expand the meaning of consent beyond cases in which the victim said no. “Instead of the messy endeavor of divining the complainant’s mind-set from the totality of the circumstances, fact finders could simply look to whether there was a ‘yes’ or functional equivalent” (131.) Gruber demonstrates the difficulty in affirmative consent standards through an analysis of cases, in which relying on the victim’s affirmation can be as confusing and ambivalent as relying on her denial. The idea that obtaining verbal, explicit consent is easy flies in the face of sexual conventions and commonly opaque interpersonal communications. Any effort by the defense to tarnish a victim’s credibility through her pre- and post-event behavior was explained away by trauma, raising serious questions of how to test credibility and bolstering the myth that rape “ruined” women–a myth that also has pernicious race and class implications. Gruber points out the role that affirmative consent plays in expanding prosecutorial discretion, which infuses charging decisions with class and race biases–against both perpetrators and victims from disadvantaged backgrounds.

The strongest chapter in Gruber’s book examines  campus sexual assault regulation reform in the 2010s. A pivotal moment in the fight to remove due process protections for alleged sexual abusers was the publication of a Rolling Stone article about gang rape, which was later found out to be completely fabricated. Nonetheless, a movement had coalesced after the article, generating sex panic on campus. Gruber recounts an interview with the author of a campus sexual assault survey, showing that the survey was designed to furnish evidence for the magnitude of the problem by categorizing a wide range of sexual behaviors (ranging from force to emotional manipulation) as rape and sexual assault. Arguments asserted as fact by campus advocates and carrying weight in their advocacy–such as the theory of campus serial rapists”–rely on questionably applicable survey data, and any risk-avoidance suggestions to women, primarily in terms of alcohol consumption, is excoriated as victim blaming. Gruber’s analysis concludes with a critique of the recent campaign against Brock Turner, a Stanford athlete who assaulted an unconscious woman behind a dumpster, which was expanded to a successful recall campaign against Judge Aaron Persky, who followed the recommendation of the probation department in sentencing Turner to six months in prison. Gruber’s careful analysis of Persky’s sentencing record is disheartening–his rulings generally followed probation recommendations. Nonetheless, not only did he personally become another victim of a misguided #MeToo campaign, but his recall fueled increased punitivism by judges fearing similar consequences (explicitly so, in at least one case that Gruber cites), as well as more Draconian campus legislation.

Gruber offers three “neofeminist” recommendations for feminists seeking to navigate the gap between “toleration of private male violence and complicity with the penal state” (192): adopting a framework that eschews the entanglement between feminism and mass incarceration (such as, for example, those who universalize the experiences of white victims of stranger assault to all women); withdrawing support for existing and future carceral programs purporting to support victims that do not advance justice (such as “yes means yes” legislation and aggressive campus criminalization proposals); and diversifying feminist participation in the debate to include voices and programs that address gender justice as well as oppose mass incarceration.

Throwing the Book at Domestic Abusers: Leigh Goodmark’s Critique of Criminal Justice Approaches to Intimate Partner Violence

There is a certain topical overlap between Gruber’s argument and Leigh Goodmark’s Decriminalizing Domestic Violence, though the two books are considerably different: Goodmark’s book is set mostly in the present time, and therefore less expansive on historical account and more expansive on policy analysis. Goodmark dates the problem of domestic violence policy to the exponential increase in criminalization, arrests, conviction, and incarceration resulting from the enactment of the Violence Against Women Act in 1994. The new law led to a dramatic change of the criminalization landscape, mirrored by astronomical growth in VAWA grant money devoted to criminal enforcement compared to housing and other social services: “In 1994 62 percent of VAWA funds were dedicated to the criminal legal system and 38 percent went to social services. . . . In fiscal year 2017, VAWA’s two largest grant programs combined to provide $266 million to the criminal legal system. By contrast, VAWA allocated $30 million to housing, despite repeated studies showing that housing is the single greatest need identified by people subjected to abuse.” (3%.)

Despite this expenditure, there is little evidence that criminal legal interventions have curbed domestic violence: “Since 1994 rates of intimate partner violence in the United States have fallen—but so has the overall crime rate. From 1994 to 2000 rates of intimate partner violence and the overall crime rate decreased by the same amount. From 2000 to 2010 rates of intimate partner violence dropped less than the overall crime rate. No reliable social science data ties the drop in the rates of intimate partner violence to criminalization or to increases in funding and criminal legal system activity spurred by VAWA. Crime has declined and the funding to address intimate partner violence has increased, but the problem persists” (3%). Indeed, while the punitive approach toward domestic violence grew in lockstep with mass incarceration, postrecession criminal justice reforms, which scaled back other aspects of the carceral state left the punitive policies toward domestic violence perpetrators untouched. Instead, as mandatory minimums were slashed for drug offenses, they were created for intimate partner violence. In short, “[a]s a result of these law and policy initiatives, the criminal legal system is the primary response to intimate partner violence in the United States today” (3%).

Goodmark opens the book with a critique of the carceral paradigm for solving domestic violence. in a nutshell, she finds little merit in exclusively focusing on criminalization:

[The criminal legal system is ineffective, focuses disproportionately on people of color and low-income people, ignores the larger structural issues that drive intimate partner violence, robs people subjected to abuse of autonomy, and fails to meet the pressing economic and social needs of people subjected to abuse (5%).

In her summary of the criminal model for addressing domestic violence, Goodmark shows that mandatory arrest policies were adopted without sufficient data to support their role in recidivism reduction, and that their implementation ignored mixed results. She also demonstrates how no-drop prosecutions developed in lockstep with neoliberal economies. While Goodmark agrees that, in serious cases arrests and criminalization can stop dangerous situations (she has recently disavowed this position on Twitter, arguing that she has moved further into abolitionism since publishing the book), she also offers that these disproportionately target the people who are targeted by the system anyway. In a Wisconsin study she cites, “men of color represented 24 percent of the population but 66 percent of the defendants in intimate partner violence cases, a disparity attributed in part to policing practices. Most intimate partner violence offenses are prosecuted as misdemeanors, and rates of misdemeanor prosecution are much higher among men of color. Arrest and conviction may have particularly negative consequences for men of color; finding employment after incarceration is difficult for all men, for example, but much more so for men of color” (11%). Notably, Goodmark maintains that the destructive impact on offenders is matched, or even exceeded, by the impact on survivors. Given that domestic violence has largely been perceived and analyzed through the lens of patriarchy and gender domination, Goodmark importantly argues that women have also been harmed and overly criminalized as a consequence of mandatory arrest polices, especially dual arrests, and of child custody consequences (which largely intersect with race and poverty.) The only acceptable victim under the criminal model, Goodmark argues, is a punitive victim: the system ignores, infantilizes women who have ambivalence toward the process. Indeed, victims who refuse to cooperate are themselves criminalized. This is all especially true for marginalized communities, in which the motivation to cooperate with the police is already low given the broken trust. Indeed, “Women of color frequently have negative, abusive, and even deadly experiences with police officers who are called to respond to intimate partner violence.”

In addition, Goodmark points out that criminalization also has detrimental effects on community, in that it “shifts the responsibility of policing intimate partner violence from the community to the state. While that initial move grew out of community failures to sufficiently protect people from abuse, the result has been to relieve communities of any responsibility for or ability to hold community members accountable without resorting to the criminal legal system.”

Weighing the penal rationales, both retributive and utilitarian, against the costs of the criminal model, Goodmark finds that domestic violence behavior do not seem to be deterred through arrests and convictions, though, as she points out, measuring deterrence is difficult because new arrests capture only a small part of recidivist behavior. Goodmark is concerned that carcerality and collateral consequences might outweigh the benefits of criminal enforcement, both on the individual level and on the level of communities and neighborhoods. Even the benefits of criminalization–the resources brought to the movement, safety of victims, and expressive value of criminalization–are muddled because they are not spread evenly across the population.

The remaining chapters of Goodmark’s book shine spotlights on alternative frameworks for understanding and addressing domestic violence: economic, public health, community, and human rights models, respectively. Goodmark finds that the lion share of domestic violence costs, already correlated with preexisting poverty and material deprivation, is borne by the people who are subjected to abuse—and that these costs stem not only from the violence itself (in the form of medical and mental health as well as economic abuse), but also from the state response to it: for example, survivors’ inability to find and keep secure housing is associated with domestic violence, most perniciously through evictions for nuisance (the nuisance itself being either the violence or the police response to it.) Financial literacy programs offer some relief, but are themselves grounded in corporate capitalism. For people who abuse, the economic hardships that flow from a state response to domestic violence, particularly the emasculating aspect of losing one’s job, can trigger escalation in violent behavior. Goodmark also finds benefits to a public health approach, which views intimate partner violence as a preventable problem and emphasizes preventative efforts in the form of education for men and boys, as well as–importantly–the prevention of adverse childhood experiences, which correlate with perpetuating the cycle of abuse in adulthood. She also examines community interventions, including a range of restorative and transformative justice approaches, and argues that community-based responses could shift societal norms around intimate partner violence and provide meaningful justice for people subjected to abuse. Goodmark is somewhat less sanguine about relying on an international human rights framework for domestic violence prevention and response, arguing that the vague formulations of protections in international and regional treaties could intersect poorly with the primarily-criminal domestic framework in the U.S.

Goodmark concludes that a balanced policy approach to intimate partner violence would work better than a predominantly carceral model. She recommends introducing legislation addressing economic abuse and financial empowerment and literacy programs for survivors. She also recommends adopting public health preventative measures and community-based alternatives, and relegating the criminal legal system to a last-resort role for serious cases.

Common and Divergent Themes in Progressive Punitivism

I want to be careful in arguing that the three stories in the books I review here are iterations of the more general trend toward progressive punitivism. First, by no means do I argue that the authors have failed to suggest generalizations of their respective case studies or that their choice to describe a particular scene of progressive activism, to the exclusion of others, is an oversight. On the contrary, all authors, most explicitly Marceau and Gruber, see their subjects not as outliers but as warning signs of a broader phenomenon. Marceau asks that his book be taken not only as “a specific critique of carceral strategies pursued in the name of improving the lives and status of animals”, but also as “a more general case study about the limitations of relying on the criminal law as a vehicle for progressive social reform.” (2-3). Similarly, Gruber warns about uneven, racially discriminatory enforcement in other areas, not only those near and dear to feminist activists: “Take, for example, hate crime legislation, a perennial progressive carve-out. in the face of accumulating evidence that defendants of color are disproportionately subjected to hate crime enhancements, incarceration critics are beginning to realize that criminalizing identity-based animus is a double-edged sword” (184). Marceau explicitly cites Gruber and Goodmark’s works to point out similarities.

Moreover, each of the three books tells a story with importantly distinct characteristics. The particular histories of criminal justice encroachment in each of these cases matter, not only because they highlight carceral tactics, but because they reveal different stories about the internal struggle in broad movements between those who support and oppose carcerality. While Marceau’s story reads more as a surprising carceral consensus among animal rights advocates, Goodmark’s and, to a greater extent, Gruber’s, unveil how trends and strategies vary over time, with the carceral animus ebbing and flowing along with local politics, regional differences, and the particular personalities of advocates.

I argue that we need both detailed case studies and a generalized bird’s-eye view: the narratives have value on their own as well as cumulative value when read together. Seeing progressive punitivism as a broad phenomenon is important for several reasons. First, I suspect that single-issue advocates may fail to see the way in which the undesirable application of punitive principles to targets of “other” movements might educate them as to the choices they make regarding their own targets. There is much that progressive movements can learn from each other if they set aside the unique features of their respective pet causes and listen. Second, as Gwendolyn Leachman and I argued elsewhere, sometimes progress for one progressive cause can spill over and hamper the progress of another. Progressive advocates have much to gain from coordinating their strategies in ways that do not sabotage other important struggles. And third,  reading accounts of progressive punitivism in tandem can offer some insights about the extent to which punitive policies are openly chosen, or merely swept, consciously or unconsciously, into the current of the punitive zeitgeist. These insights can be deeply uncomfortable for progressive activists, who earnestly take on causes in an effort to bring more justice and compassion into the world, but they are crucial if we are to develop a broader vision of the world we’d like to see. Here, then, are a few of the common themes I find in all three books:

Who Subjugated Whom – Progressive Movements or the Carceral State?

All three accounts offer reflections on the extent to which carceral advocacy was an an explicit choice, and are sensitive to the fact that what seems like a terrible choice in hindsight could have emerged from a perceived lack of choice in the past. Trying to provide support for beings whose health (and sometimes their very existence) is threatened and precarious is a difficult task. Marceau recognizes that “the attraction to criminal punishment might be charitably viewed as an act of desperation by persons and organizations seeking a foothold in a legal world that has proven itself hostile to recognizing animals as deserving of meaningful consideration or protection” (10.) Gruber situates Progressive Era reformers, such as the leaders of the Temperance movement, within their race and class identities, arguing that their perception of women different from them, whom they sought to protect, colored their notion of the appropriate policies. Similarly, Goodmark provides a nuanced account of both community justice initiatives and international treaties, pointing to the sincere beliefs of their advocates that they would provide holistic, not-necessarily-punitive solutions to the problem.

Nevertheless, to a contemporary reader, it seems that the relationship between progressive advocacy and the punitive animus is a symbiotic one. In all three examples, the carceral state seems to have gained at least as much from coopting progressive campaigns as progressives gained from embracing carceral principles. Examples of this trade-off abound in all three accounts. Marceau’s irate description of the free-speech-limiting remedy sought in Stevens explicitly alerts readers to the frightening erosion in constitutional protections that could have resulted from a narrow victory to the animal rights camp. Gruber shows the extent to which the Reagan administration, and later the Bush administration, benefitted from adopting the women’s rights cause as their own and contributing to imbuing it with carceral “flavor.” And Goodmark shows how neoliberal approaches to poverty and housing, which essentially flout any responsibility for the basic needs of people at the bottom of the social ladder, benefit from carceral approaches; her account is particularly heart-wrenching when she describes how landlords are often victorious in courts when evicting women who are abused by their partners on the basis of “nuisance”–the nuisance being the very calls to the police that these women are encouraged to make.

At the same time, none of the books absolves the activists of responsibility. The choices of poster-children and “pet causes” in all three books seem very deliberate, and geared to find sympathy among broad swaths of the public not generally inclined toward progressive change. Appealing for support for highly anthropomorphized pets (but not for the factory-farmed animals that most Americans consume, oblivious or obtuse to their suffering) or for white, attractive, middle-class victims of stranger assault (but not for sex workers or other victims/survivors whose behavior is ambiguous) is a strategic choice designed to form a coalition with the prevailing punitive forces, rather than, say, with the far more marginalized advocates of animal rights or sex work reform. We receive intelligent, nuanced accounts of strategic collaboration and tactical choices that are effective on one hand but destructive on the other.

Criminal Law as a “Conversation Starter,” Not a Problem Solver  

Related to the genesis of carcerality is the question of the goal of pursuing carceral outcomes. Because, in all three books, carceral policies are adopted as one strategy among other options, these accounts highlight the ways in which the movements hope to leverage the successes in the criminal realm onto broader achievements. Gruber’s account of second-wave feminists’ efforts to place the issue of domestic violence, and later acquaintance rape, on the map, to make them visible, demonstrates how criminal prosecutions were supposed to frame these issues as important social policy matters. Goodmark, too, explains that the criminal model of domestic violence serves a symbolic function, not merely a retributive or utilitarian one. And, as Marceau explains, animal cruelty prosecutions are perceived as raising the profile of animal protection as an important societal program: “over time,” many senior figures in the animal protection world think, “these prosecutions and longer sentences, it is argued, will result in a widespread acceptance of animals as enjoying a more significant legal status” (96).

Flawed Intersectionality: Oppressing Marginalized Populations in the Name of Social Justice

Relatedly, all three books highlight the ways in which moving to criminalize, convict, and punish a wide swath of behaviors results in the usual patterns we see in punitive criminal justice: targeting and overrepresentation of marginalized people, particularly along the dimensions of race and class. This is evident in Marceau’s account of behaviors that are and are not criminalized in animal cruelty laws. For example, of all the animal entertainment practices, states have banned the racialized and class-identified practices of dog and cock fighting, as opposed to the similarly cruel practices of penning, hunting, and fishing, which are associated with white people. Similarly, along the class dimension, Marceau points out the hypocritical web of legal exemptions from prosecution of factory farms; these exist in forty states, and in twelve of them the exemptions were created in tandem with the raising of animal cruelty crimes to felony level. But even where discretion is allowed by law, Marceau shows the disproportionate impact on racial minorities and undocumented workers. He criticizes the movement’s “jubilation over the prospect of incarceration for immigration offenses and support for deportation proceedings” (6), and argues that the message of giving a voice to the voiceless falls flat when it “completely ignores the power dynamic between an undocumented immigrant and his corporate employer” (17.) It is also a counterproductive strategy from the animal protection perspective, because it is “heedless of the possibility that such prosecutions may ultimately allow the industry to scapegoat precisely these low-level employees” (45).

Both Gruber and Goodmark’s accounts provide a wealth of data to show that statutes criminalizing men’s behavior against women are disproportionately enforced against people of color. Gruber’s historical account of the connection between feminist causes and carceral practices demonstrates the seemingly protean quality of race discrimination: not all rape victims were equally mocked and disbelieved. While women of means and social capital succeeded in claiming rape–primarily against men of color, even when the accusations were false–poor women and women of color were treated much differently. Gruber’s account adds important race and class dimensions to the race-neutral (but deeply racialized) advocacy on women’s behalf. This trend continues throughout Gruber’s narrative, culminating in her excellent chapter on campus sexual assault, in which she shows how eroding due process protections in university regulations most harshly descend upon defendants of color, whose access to higher education is already tenuous.

Similarly, Goodmark provides data to show how well-meaning (or less well-meaning) interventions purporting to help women result in serious harms to families–both men and women. In one of the strongest chapters of her book, she analyzes the economic impact of arrests and convictions. Not only do these often leave women who are abused without economic means (and then ignore their pleas of leniency so that they can subsist), but they also threaten men’s jobs; this latter observation is especially important because of the correlation between unemployment and domestic violence. Because people in poverty are more vulnerable both to abuse and to harmful interventions, these economic deprivations exacerbate class differences and prevent mobility for the entire family. Goodmark explains how housing restrictions hurt especially those who rely on low-income housing programs, and how statistical evidence clearly shows a systemic preference for prosecuting and incarcerating men of color for these offenses.

You Can’t Handle the Truth: Misuse of Science and Misguided Notions of Credibility

Progressive activists often criticize conservatives for touting values over facts, ignoring science, or misleadingly portraying scientific evidence to support punitive reforms. All three books show that conservatives have not cornered the market on obfuscating the truth. Marceau’s analysis of the use of dated “LINK” studies, and the misuse of the many studies that refute them, to bolster harsh consequences for animal abusers, is a case in point; he demonstrates how activists organizations persist in “LINK” messaging despite being made aware of the fact that the “LINK” is causally tenuous at best and meaningless at worst.

Similarly, Gruber’s account of the struggle to limit the range of permitted cross-examination of sexual assault victims is telling. Gruber does not question the inappropriateness of asking a victim-witness about her sexual behavior, but rather points out that the ability to inquire into a witness’s behavior before and after the crime was allegedly committed is one of the most important methods to challenge credibility in criminal trials. She demonstrates how any and all victim behaviors and choices have been attributed to trauma, without sufficient scientific backing.

Both Gruber and Goodmark discuss the emergence of mandatory arrest policies in domestic violence cases, and demonstrate how activists and organizations ignored, or misrepresented, the ambiguous findings as to their efficacy. These policies–particularly dual arrest policies–were adopted without sufficient data supporting their role in recidivism reduction, and subsequently implemented in the face of subsequent research that, at best, found mixed outcomes. Similar unscientific assumptions have underpinned arguments on behalf of lengthy prison sentences for perpetrators. Goodmark highlights the overall unsavory effect of incarceration on recidivism, and Gruber shows that the assumption that incarceration would at least separate couples (and thus incapacitate assailants) flies in the face of the many women that continue to visit and support their male partners in prison.

Due Process and the Presumption of Innocence Are Only for People We Like

Generally speaking, the rights of defendants in substantive and procedural criminal law have been line with goals that progressives overall enthusiastically endorse: humanizing the defendant, creating a fair and predictable criminal legislative framework, and providing the defendants with tools to mitigate the unbalanced effect of confronting, as a private citizen, the state’s law enforcement machine. All three books highlight a disturbing readiness to discard these important principles when the defendants happen to be people disfavored by the movement. Punitive legislation proposed by activists errs on the side of eschewing elements of the offense to facilitate conviction. Marceau points out the gradual diminishing mens rea requirement in animal cruelty law, from intent to neglect, and sometimes even efforts to enact strict liability cruelty laws. Gruber devotes considerable effort to describing the evolution in the actus reus elements of rape, from force to consent to affirmative consent, explaining how the new standard can be as vague and problematic to enforce as the old one, and how the interpretation of the affirmative consent requirement can be irrelevant to everyday human communication patterns.

Another example is the common understanding that children differ from adults in terms of their criminal accountability and potential for rehabilitation. After decades of treating, and trying, juveniles (particularly poor teenagers of color) as adults, the last fifteen years have seen a renaissance in our understanding of childhood, mostly inspired by advances in neuroimaging and resulting new understandings of brain developments. But the importance of treating children like children is sometimes set aside by zealous progressive advocates. Marceau notes this problem particularly in the efforts to prosecute teenagers who abuse animals as adults, exposing them to “sentences that may be grotesquely long relative to sentencing practices dictated by a system that is supposed to recognize the reduced culpability of juveniles” (29-30.) Goodmark similarly observes that a harsh criminal framework, which waits until after the crime is committed (by a juvenile or by an adult) to punish, ignores the immense preventative potential of public health interventions with teenagers on mutual respect and acceptable behavior in dating and the importance of identifying and intervening to mitigate adverse experiences in childhood–both scientifically proven to minimize experiences that strongly predict intimate partner abuse.

Classicist and Conservative Criminology: Retribution, Deterrence, Incapacitation

All three books also show a deliberate effort to frame criminality according to the traditional tenets of classical criminology: as a consequence of evil individual choice and nothing else. Contrary to the perception of progressives as “bleeding-heart liberals” who ask for compassion for offenders because of their disadvantaged backgrounds, the movements depicted in these books portray the ideology behind seeking Draconian punishment as squarely classicist, devoid of sensitivity to contextual factors. Animal mistreatment, argues Marceau on the basis of sentencing arguments by prosecutors and movement messaging, is portrayed as “the result of corrupt, depraved individuals, not a predictable result of child abuse, family strife, or other issues, and the solution to such personal failures is always a more robust penological response” (118). Similar portrayals of offenders as monsters, irredeemable except through interminable incapacitation, are present in Gruber and Goodmark’s books. Gruber devotes a chapter of her book to discussing the rhetorical “weapon” of the feminist war on crime: a deliberate and carefully crafted good-versus-evil narrative that contrasts innocent, “ideal victims” (94) with monstruous, incorrigible offenders. Goodmark highlights how the notion that domestic violence, with or without interventions, inevitably escalates to homicide flies in the face of empirical support for successful interventions with violent men.

In terms of the aims of punishment, the perception of criminality as divorced from social context can feed into several rationales for lengthy incarceration usually endorsed by conservatives: retribution, deterrence, and incapacitation. The Achilles’ heel of retributivist arguments, for example, is that reasonable minds can and do differ on the appropriate punishment for a particular crime, but when the targets are disfavored by people across the entire political spectrum, there will be consensus that the longer the sentence, the better. As Goodmark explains, lengthy incarceration not only affects individuals and their families, but also on communities; widespread, lengthy incarceration of men for domestic violence offenses (among other crimes) disproportionately affect low-income neighborhoods and neighborhoods populated by people of color, which raises the question of just deserts as they apply to the entire community. Gruber also raises the issue of just desert-head on in her discussion of the campaign to recall Judge Persky. How one measures the appropriate length of sentences given by a particular judge depends on the political lens through which one examines their sentencing record, and as Gruber explains, the data was deliberately portrayed to support the campaign, obfuscating the best explanatory variable: accepting the recommendation of probation officers. Similar certainty that sentences are not long enough is also evident in Marceau’s account: “When the maximum sentences for cases of severe cruelty to animals are less than five or ten years, the leaders in the movement are quick to complain – as one group did in a fundraising letter in 2017, remarking that ‘the animal cruelty statutes are in desperate need of updating.’ Newsletters and fundraising material frequently communicate that months or even just a couple of years simply ‘isn’t adequate for the worst cases of animal cruelty’” (25.)

Similarly lacking is the assumption that harsh sentences will result in effective deterrence in these cases (as opposed to other cases, in which progressives tend to view deterrence with suspicion.) Marceau shows how the LINK logic supersedes any “[c]oncerns about poverty or racism, which may correlate strongly with animal abuse and human violence. . . and instead we are told with an almost religious zeal that incarcerating animal abusers will make society safer. More aggressive cruelty prosecutions, the public is told, will result in fewer mass shootings, less serial killers, and an overall drop in violence” (193-194). Gruber’s account of the tone-deafness of 1970s white feminist activists to the concerns of feminists of color, who viewed the criminal justice system with suspicion, is similarly jarring. And both Marceau and Goodmark remind us that lengthy incarceration is unlikely to make anyone less violent–toward animals or toward people.

The Intersection of Formal Justice and “Cancel Culture”

Marceau and Gruber’s books (and Goodmark’s book, to a lesser and more nuanced extent) point out the link between the formal criminal justice apparatus and the informal shaming machine, as they amplify and egg each other on. Gruber’s account, particularly in her discussion of horrific crimes against children, highlights the perverse effect that community notification and residence requirements has had not only on the basic human living conditions of sex offenders, but also on their recidivism. It is fascinating to see this technology migrate from one context to another; Marceau discusses the establishment of animal cruelty registries, borrowed from the sex offender context, which exacerbate the penal consequences through the informal public shaming machine.

More generally, both books highlight the ways in which mob shaming, particularly through the context of social media campaigns, amplifies and influences the punitive criminal process. In Gruber’s book, this is especially evident in her narration of the aggressive campaign to recall Judge Persky. Gruber highlights the lack of context and nuance in the recall campaign, as well as the deliberate reliance on the identity-driven “privilege” angle (which was true for Turner and Persky, but not for the probation officer who provided the recommendation.) Tweets from the campaign, quoted by Gruber, are jarring and disturbing. Gruber also examines the transition in perspective by the victim, who skewed more punitive as the campaign gathered steam, to the point of appearing in People Magazine and publishing her own book. The farcical nature of social media mobbing is even more pronounced in Gruber’s account of the Aziz Ansari affair: an anonymous young woman, “Grace”, provided Katie Way, a reporter for Babe (a “Rupert Murdoch-funded news-tabloid website dedicated to ‘girls who don’t give a fuck’ and ‘the pettiest celebrity drama'” (12)) with an account of a date gone sour with nationally famous comedian Aziz Ansari. The article unleashed a high-profile controversy about the limits and excesses of #MeToo–even as, Gruber explains, under affirmative consent standanrds, “the text of many current sexual assault statutes makes what Grace said Ansari did a crime” (14).

Similar dynamics were in place in high-profile animal cruelty cases. In one case of abuse of a cat, relates Marceau, “it was eventually acknowledged by the prosecutor that ‘behind-the-scenes’ advocacy by animal protection groups had influenced the prosecutor’s exercise of discretion and prompted him to refuse to offer any plea bargains to Robinson. As the reporter put it, the ‘activists and the pressure they have put on prosecutors have made the defendant’s life, and case, much more complicated.’ After a Facebook page was created to provide updates about the cat, Robinson become a household face” (52). This dynamic took on a racist spin in the context of Michael Vick’s conviction for his involvement in dogfighting; after a prison sentence, a heavy fine, public speaking against dogfighting, and empathy workshops… “Theorists and activists alike agreed that he should never be able to resume a normal life, much less a well-paid career as a football star” (178.)

In both sexual assault and animal cruelty cases, Marceau and Gruber both highlight crowd-baiting techniques straight out of the conservative playbook: “This is the normal cycle,” explains Marceau, “use a terrible act of abuse as an opportunity to fundraise, and pass harsher, more far-reaching criminal sanctions” (51.)

Goodmark’s account of informal justice processes is more nuanced. In her chapter about community justice, she describes the principles of transformative justice in detail, and in the conclusion to her book, she exhorts community justice facilitators to insist that perpetrators accept responsibility and efforts to make amends, rather than manipulate the other participants in the process. Overall, Goodmark sees growing community involvement as a positive development, in that it would return responsibilities to the community that have been relegated to the state, but she does express concerns about the extent to which urban, heterogenous communities will carry weight in bringing a domestic violence issue to a satisfactory outcome with buy-in from the parties. She also mentions concerns about community shaming, though not to the extent of preoccupation that is evinced in the other two books.

A Good Victim Is a Punitive Victim

Finally, many critical works on the rise of mass incarceration highlight the impact of the victims’ rights movement on public attitudes on crime and punishment, and on various aspects of criminal justice policy, ranging from law enforcement to courtroom practices to punishment and parole. But again, conservatives have not cornered the market on what Gruber refers to as the “deification” and “veneration” of victims. For punitive movements, be they conservative or progressive, a good victim is a punitive victim. All three books point out the toxic dynamic of viewing the victim and offender perspectives as a zero-sum game. An ideal domestic violence victim, Goodmark explains, is one that seamlessly cooperates with the law enforcement project and participates in the investigation and trial of her own partner; women who are reluctant to complain or press charges are, at best, treated with paternalism, and at worst forced to participate in a criminal process that does not reflect their initiative and wishes. In some jurisdictions, prosecutors follow “no-drop prosecutions,” which can result in subpoenas to testify; if women violate these and refuse to testify against their partners, they can find themselves criminalized and incarcerated, as well. Even in jurisdictions in which prosecution is optional, prosecutors might assume that they know better than victims what is good for them, and assume a punitive stance at sentencing with the purported goal to protect the victim from the perpetrator.

A similar dynamic is present in Gruber’s account of sentencing hearings. In theory, she argues, “victim impact statements could benefit defendants if victims called for compassion in sentencing. In practice, however, victims often ‘are angry, depressed, and mourning,’ as one victim of the Oklahoma City Bombing explained. Victims’ rights discourse, as law prrofessor Elizabeth Joh observes, netihger “generates [n]or tolerates narratives in which victims’ families can exercise mercy, kindness, or forgiveness toward defendants” (99).

The effort to assume a punitive position on behalf of–but not on behest of–the victim assumes a more stark form where nonhuman victims are concerned, as the victims are unable to speak for themselves. Nonetheless, as Marceau explains, the default position is that punitivism is for the animals: “If we don’t punish (and punish severely) the human who harms animals, regardless of race, age, socioeconomics, or mental health, then we devalue the non-human animal. To imagine that an animal abuser should get treatment, community service, or strict probation terms instead of incarceration is regarded as tantamount to disrespecting the entire animal rights agenda” (7). But as he explains, this position assumes that the animals themselves would wish for this punitive outcome. In one of the most remarkable passages in his book, Marceau delves into zoological to ascertain whether this assumption has any basis in reality and finds that “it is not clear that court-appointed human advocates are particularly well-suited to speak for the animal victims. Ethologist Marc Bekoff has described animals as ambassadors for forgiveness, and Frans De Waal has documented submissive behaviors and kissing among chimpanzees as a token of forgiveness in the immediate aftermath of some gruesomely violent encounters. In fact, some consider the almost mythical ability of dogs to forgive and move on after even the most horrific acts of abuse or neglect an inspiration for the betterment of humanity. At the very least, it is far from obvious that every animal would reflexively prefer incarceration to treatment and rehabilitation. If advocates could truly decipher the wishes of their animal clients, they might be surprised to learn that the animals might frequently prefer forgiveness to a degree beyond that of which many humans are capable. Put differently, whether one judges an animal’s propensity for forgiveness as a sign of a higher or lower biological status, the fact remains that they might be more forgiving than their human-appointed advocate” (81.) Marceau sees it as a “terrible irony” that “by inserting a human “voice” to speak for the animals, courtroom advocates would once again be using animals to serve characteristically human interests in revenge or in the name of preventing future violence against humans” (82.) Thus, in all three examples, at the same etime that these movements “deify” and “venerate” victims, they appropriate their voices (whether vocal or nonexistent) and subjugate them to the ultimate goal of the carceral apparatus.

What Makes Progressives Punitive? 

There is a robust body of scholarship devoted to parsing out public punitiveness, which consistently finds a correlation between punitive attitudes and political worldview. In particular, white men of low income and low education, with a pessimistic outlook on their economic situation, tend to endorse punitive positions, such as lengthy incarceration and the death penalty. These findings characterize not only studies of potential legislation, but also mock jury experiments. And, generally speaking, conservatives tend to endorse more punitive positions.

Progressive punitivism is perhaps better understood through Gruber’s concept of a “carve-out”: the overall positions of progressives are less punitive–anticarceral or abolitionist, even–but there are important exceptions. If conservative political worldviews explain punitivism, what explains the progressive carve-outs?

One way to look at this is through theories of group dynamics and processes. In The Rules of Sociological Method, Durkheim–true to his functionalist framework–posits that crime and deviance perform an important social service. When someone flouts a value that the rest of the community holds in high respect, the community coalesces in indignation and bears witness against the offender. The excitement generated by the crime quickens the tempo of interaction in the group and creates a climate in which the private sentiments of many separate persons are fused together into a common sense of morality. In other words, deviance acts like a natural disaster in that it highlights the interests and values that the community holds in common, and serves both as a reminder and a clarifier of the “collective conscience” of the community and its moral priorities. Even in “a society of saints, a perfect cloister of exemplary individuals,” some rules, even trivial ones, may emerge–solely so that crime may occur once in a while, to remind people of their values, clarify them if they have been blurred and forgotten, or offer them an opportunity to modify them.

In the context of U.S. political divisions, which are increasingly polarized, each political persuasion subscribes to Tajfel’s social identity theory: they tend to exaggerate the commonalities among them (the “in-group”) and the differences between them and the opposite side of the political map (the “out-group”). Tajfel sees this occurring in three steps: categorization (identifying the in-group and the out-group), social identification (adopting the identity of the in-group), and social comparison (comparing the in-group favorably with the out-groups.) In other words, group identification yields tribalism and demonization of other groups. Durkheimian rituals of shaming and punishing deviants would act, therefore, to unify the members of the group and solidify their values; this is why even the self-perceived “perfect cloister” of progressive, anti-carceral activists needs its demons.

Elsewhere, I examined a different possibility. Americans of all stripes, I argued, are so steeped at this point in punitive marinade that every problem appears to them as a criminal problem. With this pervasive conditioning, progressive punitivism could simply be the consequence of lack of imagination: if the only tool you have is the criminal justice hammer, everything looks like a crime nail.

A third possibility I am thinking of now relies on Paul Bloom’s Just Babies. Drawing on his experiments in infant moral cognition, Bloom deduces that infants at a surprisingly early age are capable of judging the goodness and badness of others’ actions, feeling empathy and compassion, soothing suffering beings, and possessing a rudimentary sense of fairness. At the same time, we are naturally hostile to strangers, prone to parochialism and bigotry. It may be that everyone–albeit to different degrees–needs to satisfy this innate sense of justice, or fairness, sometimes through punitive sentiments.

The Future of Progressive Anticarcerality: Will Cops and White Supremacists Be the Last Carceral Bastion? 

Even Durkheim and Bloom would agree that it is possible to overcome our punitive tendencies; one of the transformations Durkheim predicted was from repressive to restitutive law, and Bloom thought that, as we grow and evolve, we can overcome tribalism. This may be the moment at which progressives wake up from their own punitive blind spots. It would have been difficult to imagine a book like the books reviewed here emerging from within the progressive movement just a few years ago. And yet here we are. Perhaps the excesses of these movements have now exceeded their benefits to the point that they are difficult to ignore.

And still, I have to ask myself if this progressive awakening will sweep the entire movement, or retain some last bastions of punitivism. As I write this, hundreds of thousands of people nationwide are participating in protests to express their understandable anger at systemic racism and the overcriminalization of police. These protests evince a complex and interesting duality, which has characterized previous waves of protests against police killings and white supremacist violence, albeit perhaps not to the same extent. The protests are almost always triggered by a horrific incident of killing, usually across racial lines, and the subsequent the legal system’s failure to act appropriately. This makes sense–it’s pain, grief, and anger, that drive people to the streets. At the same time, protesters correctly perceive the triggering incident not as an isolated occurrence, but as part of a long pattern of police violent misbehavior disproportionately directed at people of color. Even as protesters call for a systematic overhaul of the police–defunding, reorganizing, abolishing, which mean different things to different people–they are invested in a resolution of the particular criminal case. Success and failure are measured via traditional criminal justice metrics: criminal charges, convictions, and long prison sentences.

An additional wrinkle to this complex message is the movement’s approach toward protests. The debate about violence and harm to property by protesters (framed as “protesters or looters”) predictably divides people along political lines; now, there’s a debate about police violence toward those participating in the process, divided along the same lines.  Ilhan Omar, voicing the sentiments of many progressive activists, tweeted: “We need to criminalize violence against protesters. Pass it on.” Indeed, thousands “passed it on,” even though homicide, assault, and battery are already criminalized. The appetite to criminalize something that is already a crime–several crimes, in fact, and serious ones at that–even as the same movement decries the excesses of the criminal justice system–highlights the complicated messaging of the protest: on one hand, much of the animus for drastic changes to policing comes from the understanding that policing in the United States is mired in a toxic culture of racist masculinity. On the other hand, the trigger for these sentiments has often been the criminal justice system’s reluctance to prosecute, convict, and punish individual police officers involved in such incidents.

At this moment, it seems impossible to imagine that the anticarceral animus driving works like Beyond Cages, The Feminist War on Crime, and Decriminalizing Domestic Violence will be applied in the context of criminal expressions of white supremacy: killings through hate crimes and police killings, especially of people of color. Indeed, these books themselves position racialized violence as the last bastion of punitivism. Race is ever-present in these critiques of punitivism: one of their common major arguments is that using criminal enforcement to support women and animals tends to disproportionally target people whose plight in the carceral state is at the forefront of progressive thinking: poor people and people of color. In each of the three books, movements are criticized for their whiteness and elitism. And in each of those movements, activists are chastised for pinning their hopes on the police. If so, what anticarceral arguments will we marshal in a situation in which enforcement targets the people who are themselves victimizing poor people of color, and moreover, do doing so as the front workers of the carceral state itself? It might even be be tempting to distinguish the movement to hold police accountable from the movements to hold animal abusers, wife batterers, and sexual assailants accountable, by arguing that the first of these is the only truly progressive movement–one that directly takes on the carceral apparatus–whereas the others compromise by aligning themselves with conservative principles and agencies.

And yet, the rich conversation around police abolition/defunding/reform reveals openness to anticarceral perspectives and reveals real possibilities even in this difficult and controversial arena. In When Police Kill, Franklin Zimring argues for the need to reform police training and practices to prevent use of lethal force, and expressly devotes a section to discouraging advocates and activists from resorting to criminal charges against cops as the preventive/deterrent strategy. It won’t work, explains Zimring, and the problem is systemic, not individual. Similarly, Kate Levine argues that resorting to prosecutions of police officers is a lost cause because of the embedded conflict of interest. Even though #DefundThePolice is a slogan, open to a range of interpretations in our collective imagination, it is a call for diversifying our approach toward social problems away from the single focus of law enforcement. It would be complicated to exclude from this argument those who participate in law enforcement itself.

A few posts ago I relayed another personal anecdote here: when I worked at the Military Defender’s Office in Israel, despite my broad perspective of the occupation as an aberration, I never had moral difficulty defending soldiers who looted Palestinian homes. Beyond the obvious fact that, like everyone else, they were people, and as such should not have been excluded from due process protections, I had a strong conviction that there was nothing uniquely evil about them. Like the prison guards in Haney and Zimbardo’s famous Stanford Prison Experiment, they were placed in a situation in which their dehumanizing activities were not only tolerated, but lauded and encouraged by their commanding officers and their government. I think it’s fair to say that the rot in police organizational culture is much deeper than individual pathologies. I think progressives recognize this–not only in their heart of hearts, but in their voices when they call for real change. And I think we know that real change–if not for all people, then for most of them–does not begin and end with cages.

To Be Believed: Christian Cooper and the Scottsboro Boys

A few years ago we had a minor scandal at Hastings. A first-year female student who lived in our dorm reported an intruder to campus police. She came to her apartment, she said, and found an African American man, well dressed (“could pass for a student” was the description we learned through the Jeanne Clery Act disclosure campus police sent us via email) rummaging through her underwear drawer. For a few weeks, our African American students were under surveillance. Then, we got a cryptic message from the police, saying that the investigation had ended and no offense was committed.

I put the whole thing out of my mind until a year or so later, when I taught race and crime and we watched this excellent clip of Gregory Peck as Atticus Finch cross-examining Collin Wilcox as Mayella Ewell:

My students said, “holy crap, that’s exactly what happened with this girl.”

“Wait, WHAT?” I said. “Explain.”

So they did. It turned out the story was as follows: the student who had made the complaint wanted to move in with her boyfriend. In an effort to show him how dangerous the Tenderloin was, she manufactured the story of the intruder out of thin air. For weeks, the investigation went on, understandably enraging our Black Student Association, and then she finally broke down and admitted she had fabricated the whole thing.

The literature on racial hoaxes is pretty consistent: people make up stories for their intended audience, based on their assumptions of what would be believed. When white people engage in a racial hoax, it is aimed for a white audience, and usually evokes some version of the hypermasculinized, predatory black man. When black people engage in a racial hoax (yes, this happens, too), it is aimed for an audience of people of color, and revolves around hate crime (admittedly, there are so many true reports of hate crimes that it is hard to assess the rate of the false ones–which is exactly what makes hate crimes believable to people on the receiving end of so many real ones).

I’m not particularly interested in hounding Amy Cooper or in the waves of (understandable but counterproductive) vitriol, threats, and schadenfreude that are coming her way. I’m more interested in the quick, reactive thought process that landed her in threatening-black-man territory after Christian Cooper made his reasonable, polite request (and wisely recorded the aftermath.) The reason white women make accusations against black men is that they know they have the social capital to be believed.

Nothing is new under the sun. Michael Klarman wrote a classic article about the nine black men who were falsely accused of raping two white women on a freight train in Northern Alabama. He comments:

In such cases, guilt or innocence usually mattered little. As one white southerner candidly remarked in 1933, ―If a white woman is prepared to swear that a Negro either raped or attempted to rape her, we see to it that the Negro is executed. Prevailing racial norms did not permit white jurors to believe a black man‘s word over that of a white woman; prevailing gender norms did not allow defense counsel to closely interrogate a white woman about allegations involving sex. As one contemporary southern newspaper observed, the honor of a white woman was more important than the life of a black man.And because most southern white men believed that black males secretly lusted after ―their women, they generally found such rape allegations credible.

Michael Klarman, Scottsboro. Marquette Law Review, 2009.

Nothing is new under the sun. I am nauseous with anger this week over what Christian Cooper has endured, and over how precarious is situation was–how quickly this allegation could have turned into the stomach-turning horrific tragedy of George Floyd’s killing (the heart cries with so much grief this week; how can any of us breathe when some of us are not allowed to?) But this is exactly the crux of the issue: who is and is not believed is a reflection of deeply engrained, sinister, ugly cultural myths, and all the criminal justice reforms in the world has not yet succeeded in sweeping these away.

Restorative Justice in Sex-Positive Communities: What, If Anything, Does It Restore?

It’s always distressing to see situations in which the cure to a social disease looks pretty bad in itself. For me, many of these situations revolve around the concept of progressive punitivism–situations in which social justice activists and advocates pursue equality, fairness, and other good stuff through punitive means (here‘s a podcast I did about this.)

Progressive punitivism can operate through the formal legal system (as it does when mayors call to reverse the burden of proof in criminal cases featuring cross-racial violence or when activists pursue vindictive recall campaigns against judges they deem too lenient) or, at least just as commonly, through the informal punitive machine of hard-to-reverse reputational harm, referred to in social media as “cancel culture.”

Many people have written about the ills of the prevalent virtue signaling and virulent shaming mob campaigns of he progressive left, especially in the context of what is known as “carceral feminism“. Aya Gruber’s recent book The Feminist War on Crime offers a critical examination of the allegation-as-fact narrative and what it means for the carceral state. And Leigh Goodmark’s Decriminalizing Domestic Violence suggests alternatives to the common domestic-abusers-are-inhuman-monsters narrative that permeates even progressive conversations about crime. In short, one of the serious problems with carceral feminism is that the progressive commitment to due process ends the minute we find ourselves facing a defendant we dislike.

Perhaps as a reaction to the contradictions between carceral feminism and cancel culture on one hand, and the abolitionist stance that the same folks tend to hold regarding the U.S. criminal justice system on the other, alternatives have been proposed, including the notion that harms of the patriarchy can be resolved outside the formal legal process, through restorative justice processes. One of these alternative process, Transformational Justice, takes on issues that are typically regarded through a punitive lens among progressives–domestic abuse, sexual assault–and offers a survivor-centered process that involves the community. You can read more about the premises behind transformative justice here. Central to the process is the establishment of “pods”: a “survivor pod” that supports the survivors and amplifies their narratives, and an “accountability pod” that accompanies the perpetrator’s journey toward accepting responsibility and offering redress of harms. The Bay Area Transformative Justice Collective defines the pod as “the people that you would call on if violence, harm or abuse happened to you; or the people that you would call on if you wanted support in taking accountability for violence, harm or abuse that you’ve done; or if you witnessed violence or if someone you care about was being violent or being abused.”

It is not surprising that sex-positive communities, such as the polyamorous and/or kink communities, are eager to adopt restorative practices. Polyamorous people have been on the receiving end of horribly discriminatory legal action, ranging from heart-wrenching custody battles to lack of police support in the face of hostilities. BDSM and kink practitioners have had to defend themselves against criminal charges with meager legal protections. Both communities regard consent as the centerpiece of their ideologies: polyamorous speakers often present polyamorous relationships as the opposite of cheating and kink practitioners develop protocols for consent before engaging in sexual scenes. When cheating and nonconsensual interactions occur in these communities, the harm is not only to the victims, but also the already vulnerable reputation of communities that are underserved and misunderstood. Which is why it makes sense that these communities have recurred to “accountability processes” to resolve these situations. In some cases, there’s fear that seeking recourse through police intervention will be futile at best, or worsen the situation at worst. In other situations, the harms would not trigger legal intervention, either because the incident would not be perceived as serious enough or because it does not constitute a criminal offense, even though it matters a great deal to the participants.

I’ve recently looked through the Internet chronicling of two such processes: the accountability process for sex educator Reid Mihalko and the accountability efforts lobbed at polyamorous author and speaker Franklin Veaux. While I’ve been a long-time researcher of political and legal mobilization in the context of underserved sexual communities (see here, here, and here), I don’t personally know either of these two men or any of their accusers, even though two of the people who participated in the pods and/or wrote about them are friends, acquaintances, and colleagues. I am completely agnostic on the facts and perceptions that surrounded these incidents, except for the obvious fact that the survivors experienced immense suffering and trauma, sometimes spanning years. My only source material is what’s publicly available online, which turns out to be quite a lot, but I haven’t attempted to uncover “the truth,” whatever that means. My commentary on this mostly seeks to understand what these processes seek to achieve and whether (and to what degree) they feel qualitatively different from the process this was supposed to complement or replace.

Chart of Reid Mihalko’s accountability process. Source:

In January 2018, The Daily Beast publicized accusations against Mihalko, according to which, eight years earlier, he pestered Kelly Shibari, an adult performer who attended a workshop of his, into giving him a hand job. The article emphasized two aggravating factors: the exploitation of a sex worker, whose consent is already suspect and vulnerable to doubt, and the incongruence of the incident with Mihalko’s public image, particularly the emphasis he placed on consent at his workshops and events.

Mihalko quickly published a public apology on Facebook and subsequently announced that he would step down from teaching. Two pods formed: An accountability pod for Mihalko and a survivor pod for Shibari. The accountability pod created a link for soliciting more anonymously submitted stories about Mihalko, with a “soft deadline” in early March. The entire process, which consisted of writings by the accountability pod members, writings by Mihalko himself, and accounts of the progress made (including securing a therapist for Mihalko) was publicly shared on The public face of the process included accounts from the survivors; 12 of these stories were included, as well as an “analysis” by the survivor pod members, which concluded:

“Overall, the stories consistently depict a person who, often while under the influence of alcohol, crosses boundaries in both overt and covert ways, and mingles sexual behavior (including flirting and propositions) with connections with people that are not in specifically sexually-appropriate environments. There were multiple mentions that Reid seems to specifically seek out sex from people who may not have strong boundaries around him, possibly due to the assumption that Reid is an expert and/or has professional influence. A number of people noted that Reid seemed to be unaware of the effect of his privilege & power as an educator / expert in gaining consent. Multiple people noted that they did not feel that Reid picked up on cues that they were uncomfortable with being flirted with and/or that they did not want to engage sexually.”

I was struck by how similar this assortment of Medium posts was to the dynamic in parole hearings that I uncovered and analyzed in Yesterday’s Monsters. For one thing, the idea of allegation-as-fact, which Gruber discusses in The Feminist War on Crime, is prevalent in both proceedings. At a parole hearing, the courtroom transcript is king: any deviation from the story as it was told by the prosecutor in the courtroom is “minimizing.” Here, the allegation is queen. The idea that the allegation is true simply by virtue of being alleged shapes the discourse, and is presented as as antithetical to the official process, which would harm victims by questioning their credibility. By contrast, any effort by Mihalko to dispute this assessment would be regarded as a minimization of his role in the incidents.

Similarly, apologies begat criticism, which begat more apologies–for the better part of the few months covered by these posts. Some of Mihalko’s apologies were perceived as undue “centering” of himself, rather than of the people he had harmed. The effort to push more and more self excavation and inquiry reminded me of the decades-long parole hearing efforts to get people to “authentically” talk about the “insight” they have gained. There is the perception that these pods (members of whom are also, in part, celebrities of the sex-positive community–either self-appointed or picked by Mihalko and Shibari) could discern when Mihalko would finally get to the bottom of the apology well and emerge with a fully and appropriately contrite version of his apologies. Until then, apologies begat apologies. I don’t claim to have the power to discern authenticity, or lack thereof, or an instrumental effort to save his reputation, from Mihalko’s contrite posts on Medium (you may come to a different conclusion–read here and judge for yourself–but robust social psychology research suggests we are not good at all at determining this.) They remind me a lot of the parole transcript stuff, echoing the iconic scenes in The Shawshank Redemption in which Red repeatedly assures the board that he is completely rehabilitated: “no danger to society here, and that’s God’s honest truth.”

Another way in which this process reminded me of parole hearings has to do with the role of the survivors. By contrast to the criminal process, where the victims (understandably) perceive themselves as powerless, it was Shibari who asserted control over the survivor pod and the gathering of the other survivors’ stories. This is understandably more empowering to survivors than a situation in which the system takes ownership of the victim’s narrative, but as Kent Roach points out, providing victims/survivors with agency does not necessarily uproot the punitiveness of the process. If this process is focused on the healing of Shibari and the other survivors, it adopts a very particular interpretation of what healing means.

By contrast to Mihalko’s cooperation with the accountability pod, Franklin Veaux’s case exemplifies how these public processes with “accountability pods” operate when their target does not cooperate. Like Mihalko, Veaux built his public persona as a polyamorous educator around notions of healthy relationships, consent, and healthy communication practices, which he espoused in his public talks and in his book, coauthored with former partner-turned-accuser Eve Rickert. The accusations against him, again, are aggravated by the contrast between this benign public persona and his behavior in private relationships. His survivor pod elaborated in an open letter, which referred to their inquiry into Veaux’s behavior as “polyamory’s #metoo”:

“The women’s experiences indicate that Franklin has patterns of manipulation, gaslighting, and lying; leverages his multiple partners against one another; tests or ignores boundaries; pathologizes his partners’ normal emotions and weaponizes their mental illnesses; exploits women financially; uses women’s ideas and experiences in his work without permission or credit; grooms significantly younger, less experienced, or vulnerable women; lacks awareness of power dynamics and consent; has involved women in group sex and other sexual activities that they experienced as coercive; and accepts no responsibility for the harm he causes by engaging in these behaviors — often blaming other women, or the harmed women themselves, for that harm.

These behaviors escalate when Franklin lives with a partner, and he becomes verbally abusive when his nesting relationships end. The severity of this pattern is illustrated by the fact that none of his former nesting partners will be alone with him. Two of them, over a decade apart, fled the homes they shared with him at the end of the relationships. Their written records from the time of leaving him show evidence of trauma.”

But the process of holding Veaux accountable for these harms went awry from the survivors’ perspectives. In an open letter they wrote on their own behalf (rather than by the pod), also published on Medium, they wrestle with what procedure should be in this kind of “transformative justice” process:

“In our understanding of transformative justice practices, the survivor pod centers the needs and input of the survivors, in turn informing the actions of the accountability pod. That didn’t happen in the part of this process that involved Franklin’s pod. From the time that someone representing an accountability pod first made contact with Reid until just before “An Announcement About Pod Boundaries” was posted, no survivor was consulted or given meaningful opportunity to influence the actions of the survivor pod toward Franklin’s pod, or given access to the communications between the pods. Our list of asks was not sent, and we were not given an opportunity to make additional requests, or to decide what information, if any, to share with Franklin’s pod. The survivor pod has said more about this in their wrap-up statement.

“Those of us who have taken the time to read through the correspondence between the pods do not agree with the approach the survivor pod took and do not believe it represents us, or the values this process was intended to be founded on. We also disagree with some of the characterizations made in the pod boundary statement. Because this cannot be undone and does not materially affect the way forward now, we will leave it at that.

“To be clear, not all of us were even invested in a transformative justice framework when we came forward. Those of us who were, sincerely believed in it. But regardless of intent, it is clear that such a framework was not in place during this process. Nor do we believe that Franklin would ever have engaged in an accountability process in a way that was ever more than performative — we believe his many public pronouncements about us prove as much. This clarification should therefore not be taken in any way as a vindication of Franklin or his own pod members. But it is time to set aside any pretense that a transformative justice or accountability process has occurred here, or will.”

Several things seemed to have gone awry. The survivor pod members admitted that they engaged in some exchanges with Veaux’s pod that were not divulged to the survivors themselves; in a particularly curious procedural twist, the survivor pod appointed Mihalko (yes, the subject of the supposedly exemplary accountability process) to liaise with Veaux on behalf of the pod, a move that was not successful and not coordinated with the survivors themselves (this raises an ancillary question, which is whether people subjected to versions of this process that are deemed successful are ever fully redeemed, to the point that they are regarded as assets in others’ process; I’ve seen this sort of empowering move in peer-to-peer networks of formerly incarcerated people, but this process is supposed to be centered around the wishes of survivors, rather than about the redemption of former accountability process subjects, so it’s a completely different story.) Another part of what went awry, according to the survivor pod, had to do with the fact that the basic assumptions underlying the process were not shared by the two pods–the survivor pod, which sought to amplify the voices of survivors (albeit not in the way the survivors wanted and without informing them or seeking full input from them), and the accountability pod, some of whose members did not accept accountability as given and disputed credibility.

This, I think, is the crux of the matter. Reading the different facebook posts, Medium posts, and Quora questions, is complicated, because transformational justice (like a lot of formal and informal processes) is heavily laden with jargon and terms of art (“transformational” “pods” “accountability” “centering” “amplifying”, and that’s on top of the relationship jargon (“harm”, “gaslighting”, “problematic”, etc) and the considerable specialized verbiage developed around consent and relationships specifically for poly and kink communities. But underneath this intricate terminology there seems to be a simple idea: a necessary condition for supporting survivors is accepting their narratives at face value. Questioning their credibility in any way is a violation of the basic assumptions of the accountability process. In other words, if you “plead not guilty”, or even ask for the transformational justice version of an Alford plea (acknowledging the suffering but not taking on full responsibility for it), you are not deemed a good-faith participant in your accountability process and the whole transformational justice edifice breaks down. What seems to have gone awry, beneath the layers of process and prose, is that Veaux did not accept the survivors’ narrative (he argued that he was the victim of a smear campaign orchestrated by Rickert); the members of his pod who spoke publicly also expressed less than wholesale acceptance of the survivors’ versions of the events (albeit to a much lesser degree than Veaux himself.)

Indeed, eventually, the breakdown of the process because of this basic gap in factual accounts saw the survivors break with the pod and the prcess and assert ownership of their own narratives. The culmination of this break was the publication of their stories, as interviewed by Louisa Leontiades, in a website called “I tripped on the (polyamorous) missing stair.” The open letter refers to it as a “survivors’ archive. Nothing more, or less.” Indeed, the suffering is evident and heartbreaking. Reading the testimonials feels like watching a train wreck–tragic, elegant, generative of questions. In an odd subversion of the allegation-as-fact ethos, the document collection itself has evoked debates and disputes not only about credibility, but about methodology, and about the interpretation of methodology, and about the methodology of interpretation of methodology. These posts feel a bit like the story of the blind men who set out to inspect an elephant and, underneath all the fancy analysis, they all revolve around the inescapable conundrum of credibility.

Looking at the presumably successful process in Mihalko’s case, and at the unsuccessful (assessed by the survivors themselves) process in Veaux’s case is instructive. It is clear that, in both cases, the people running the process are doing so with good intentions, but it is not entirely clear what those intentions are, or whether there is consensus about them. It’s clear that the process is supposed to be “survivor centered”, and that the survivors play a role in it that is greater than what they would play in the official legal system. Indeed, since a lot of the experiences that the survivors and pods describe are examples of poor (and traumatizing) interpersonal behavior, but do not constitute criminal offenses, they certainly get more agency naming their grievances than they would get if they filed a complaint with the police. Nonetheless, it’s not at all clear what the survivor participation/leadership means or even that the survivors, as a group, are clear on it themselves or in agreement amongst themselves. It is pretty clear that the pod members are well meaning in stepping in, but it is not at all clear what the yardstick is for naming them, and what sort of authority and expertise they claim, nor is it clear whether their determinations or guidance would or should be acceptable to the person who is to be held accountable (when the person flouts their presumed authority, such as in Veaux’s case, what does this authority even mean?) It is pretty clear that some measure of sincere accountability needs to flow from the perpetrator–and it’s clear that none was forthcoming from Veaux–but it is not clear at all what the yardstick is for determining what sort of contrite expression will be deemed sufficient, how sincerity is measured, and how the pod determines when the penance is done and the person (who, in both cases, holds himself out as a public celebrity educating others on good relationships) “gets” to resume his public life. What does the “certification” that the person has “done the work,” as they say in progressive circles, mean? Even in the event that, as in Mihalko’s case, the pod eventually rinses him of the reputational stain, is the stain really gone when the process is public for the sake of transparency?

I applaud the earnest and well-meant effort to find an alternative to the criminal process on one hand, and to the social media mob-shaming spectacle on the other. Both of these things are destructive, and the project of empowering survivors to tell their stories is laudable. But overall, I’m not sure that transformative justice really has presented a better alternative. It appears to be a more elaborate, erudite, and articulate version of the trial-by-social-media that is Twitter; it retains much of the pathology and does not present a fully salutary alternative. Moreover, it seems not to have bypassed two of the central problems of all processes designed to address interpersonal and sexual misbehavior: the engagement with the credibility of narratives and the buy-in (call it “admission of guilt” or “accountability”) on the part of the accused party.

First, the credibility. The idea of allegation-as-fact, or #believewomen, emerged as a contrary notion to the pathological lack of respect and credibility questioning that victims of interpersonal misbehavior, particularly domestic violence (“why didn’t she leave?” and sexual assault (“what were you wearing?”) survivors encounter in police stations and courtrooms. But it seems that the effort to either present these narratives without testing their credibility, or with an explicit statement that they are to be believed, does not quell the understandably human urge to “find out what happened.” Even the folks that have done the erudite meta-analyses, particularly in Veaux’s case, are concerned with credibility; within this women-positive, sex-positive process, they engage in contrasting factual stories. Rather than believing that people have suffered–which should be obvious just from the tenor of the narrative, before even engaging with the particulars–the focus becomes on believing their account of what happened; the former is seen as an insult, and expressing regret just for the suffering, without giving the allegation full credibility, is a worthless “non-apology apology.” Pretty much what you get from the legal system and/or the social media cancel culture machine. Ultimately, transformative justice can only transform perpetrators who walk into the process fully prepared to accept the narrative of the survivors. Any effort at insisting on transformation if this basic condition is not met is not only futile, but destructive.

Relatedly, assuming–and I’m not sure that assumption is true at all for all the survivors, given their own statements–that there’s value in being offered an apology, and assuming–and I now this assumption is not true, because social science literature refutes it–that it is possible to detect sincerity in apologies, the success of an apology or an acceptance of accountability depends entirely on the extent to which the perpetrator even buys into the process. With public figures, even in a progressive, feminist, queer-friendly space, there are huge disincentives from buying into the process. The threat of withdrawal of social capital has to be considerable to convince someone to participate. And even when the buy-in is complete, as in Mihalko’s case, one is left with the unsatisyfing taste that an apology that is offered in the context of a tribunal that offers you a stamp of approval back into public life can never be 100% genuine. This is what Nick Smith talks about when he argues against court-ordered apologies. Which raises the question: Does buy-in matter for what the survivors get out of the process? I’m not sure whether Shibari and the other survivors in Mihalko’s eventually walked away from his accountability process feeling fully satisfied with the outcome, but we do know that Rickert and the survivors in Veaux’s case were unhappy with the aftermath and attributed its failure in part to the pod’s positions and process. Again, it is hard to argue that the question of credibility is not a big part of this. 

I wish I knew how to offer an alternative to this process that would bring about healing without the aftertaste of credibility testing and punitivism. I used to think that the problem is that we’ve been steeped in the idea of punitivism for so long. But after having read Paul Bloom’s Just Babies, I think that notions of retribution are an important part of our psychological makeup since infancy, and dealing with them inevitably requires us to wrestle with the complicated question of “what really happened.” Much as we try to escape it with concepts of survivor empowerment, we end up exactly where we started: comparing shards of narrative, selling ourselves unknowable truths, and refusing to accept that incidents can be experienced in radically different ways by different people. And maybe, when we experience immense suffering at the hand of someone else, the most important thing to us is not just to be listened to, but also to be found credible, to be believed. And if that’s the case, I don’t know how we square this with due process, restorative process, or any process.

This conversation goes straight to the heart of the non-choice we face in the November 2020 election: vote for the Democratic candidate, who has been accused of sexual misconduct, or for the incompetent, psychopathic, semi-literate, despotic career criminal. If we are to save the country, we have to figure out how we handle the moral and factual vagueness around these accusations, and sit with what it means to walk through the woods of credibility. That there is no real alternative (an abstention or a write-in is a vote for Trump, I’m pretty clear on that) makes this even more confusing. And yet, we should wrestle with the meaning of supporting suffering, and whether that is inexorably tied to questions of credibility and buy-in.

On Looking for Closure from the Criminal Justice System

A day after that horrible 2016 election I was mourning not only what was to become a national nightmare, but also the failure of California’s Prop 62, which would have abolished the death penalty. I was on the radio talking about it and someone asked me what I would say to the victims’ families. I replied, “first of all, all the sympathy and empathy in the world. And second, if you have lost someone you love, surely you wouldn’t want to revisit this suffering–with a real risk that the person is innocent–on anyone else’s family.”

Some people took offense to that, and I got some hate mail, including a fairly alarming death threat. But I still do feel that the notion that not everyone who has lost a loved one to homicide looks for closure in the form of the death penalty or other severe sentence bears repeating.

I’m writing about this as the verdict has come out in a case involving the murder of my colleague and friend Dan Markel. Sigfredo Garcia was found guilty; there’s a hung jury in Katherine Magbanua’s case; and the people many of us think are the real culprits, the Adelsons, have so far completely escaped the clutches of the criminal justice system.

Susan Bandes has a a few papers about the notion of “closure”, as something that the criminal justice system is supposed to deliver and as something people assume they’ll get out of a conviction and a sentence. Her findings dovetail with what I found when working on the Kavanaugh piece and on the Progressive Punitivism piece: the idea that expressing anger through the criminal justice system will bring some form of cathartic relief is unsupported by behavioral science. In working on Yesterday’s Monsters, one of the things that most filled me with sorrow was how victims who are singlemindedly invested in punitive outcomes against those who killed their loved ones (and the Tate family literally wrote the book on this–it’s called Restless Souls) find so little solace in doing so.

I don’t think that nonretributive, nonpunitive victims are more “saintly” than punitive ones. All emotions, including rancor AND forgiveness, are part of the human experience (as we recently found out, if anything, people find it hard to accept that forgiveness is human, and insist on shining some critical light on it).

Dan, who studied retributive justice (here, here, and here), would have found it interesting that what I most wanted from the criminal justice system was an affirmation of the narrative of What Happened. I’m not at all invested in the Adelsons being  arrested, tried, convicted, and incarcerated, let alone executed–that they have to live with themselves strikes me as the worst possible punishment. Not because I’m some sort of saintly, forgiving creature–I simply found out something about myself and what I want from the criminal justice system. And even if we, Dan’s family and friends, ever get it, it won’t bring our friend back.

Perhaps one of the things that most saddens me in America’s punitive victim rights movement is how it offers you the One and Only Way to be an appropriate victim, without allowing you to sit with your own fresh emotions and feelings–grief? anger? frustration? loss?–and process them with yourself, between you and your soul, without a giant machine of a social narrative to run you over. There’s not nearly enough quiet, be it in the right-wing halls of the anti-superpredator chorus or in the left-wing halls of #metoo, for you to sit with yourself and be whoever you are with your own feelings.

Much love and support to Dan’s family and friends today. What is remembered, lives.

The Central Park Jogger and the Reification of Victims’ Perspectives

Those of you familiar with the Central Park Five case should be under no doubt that, despite Trump’s insistence on propagating a strange narrative of the case, the five teenagers railroaded into confessing and sentenced to years in prison have been completely exonerated and compensated, with a single perpetrator’s confession backed up by solid DNA evidence.

You may also recall that the victim, Trisha Meili, who was violently assaulted and left for dead, has no memory of the attack. But she apparently does not see this as a barrier to opining about guilt and innocence.

In my forthcoming book Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole (forthcoming Feb. 2020 from UC Press) I discuss the serious problems that happen when we reify the perspectives of people at the heart of trauma regarding things they are not qualified to comment on, such as the sincerity of parole hopefuls, their participation in rehabilitative programming, and even their physical health. And here we have a person who cannot recall the attack pushing for a political outcome, claiming the authority to do so because of her victimization.

Trisha Meili suffered horribly at the hands of someone terrifyingly violent and deserves every sympathy and compassion for that horrible ordeal, as well as respect and admiration for regaining her health. But she has no authority or special knowledge to chime in about events she does not recall or to use her authority as a “moral memory” of the crime to push for processes that completely contradict forensic evidence.

This is what happens when we decide that trauma itself is an admission ticket to the discourse. And lest we forget, the right has not cornered the market on this reification of victims.