If you’re anything like me, you might have spared a moment or two from focusing on the impeachment brouhaha to follow the horrific tragedy involving Amber Guyger, the white woman who shot her African American neighbor, Botham Jean, arguing that she mistook his flat for her own. And if you’re anything like me, you were probably surprised, and perhaps moved, to read about Jean’s brother, Brandt, who after Guyger’s conviction and sentence hugged her and expressed forgiveness.
And if you’ve spent any time online in the last day or two, you’ve seen that everyone whose brother was not murdered recently had Opinions about this. As NPR explained, it “sparked a debate.”
I’m in a rush to get a little bit more work done, so I’ll keep this short: There has been a lot of chatter from well-meaning, righteous folks, using all the correct Woke argot, about things we’ve already read in op-eds a thousand times: how forgiveness and restorative justice just give white people a reprieve because they reinforce racial hierarchies and excuse structural inequality yada yada yada. This sort of chatter, right here, is what I argue in both Yesterday’s Monsters and in Progressive Punitivism has been the ultimate paradigm in American criminal justice policy. It doesn’t matter if you’re a fierce punitive right winger or a fierce punitive progressive social justice crusader–you’ve spent decades marinating in a national animus that tells you that everything that is wrong in the world is criminal justice related and that harsh punishment is the only solution.
It is important to listen to victims. Very. It is important to have all the compassion in the world for victims. And at the same time, first and foremost, our obligation to victims is to help them not be just “victims” as soon as possible. What we are doing with the reification of this punitive perspective is reinforcing the notion that the only appropriate way to deal with social ills is to punish; that to forgive is weak and subservient; and that people should never move on from their own victimization–even if it’s healing TO THEM, even if it helps THEM, even if it is THEIR way of dealing with grief.
Which means that we’re all about listening to victims–but only if they sing the punitive tune we like to hear.
I would humbly suggest to all the self appointed social justice critics of Jean’s big heart that perhaps there isn’t only One Right Way to handle the murder of your sibling, and that perhaps the decent thing to do is to let people grieve and process in whatever way seems appropriate to them.
I would also suggest that critiquing someone’s admittedly uncommon way of handling his grief as if he doesn’t know what he’s doing is as paternalistic as the hierarchies the commentators supposedly condemn.
Juno, the dog from Oregon v. Newcomb. Image
A while ago, I read and commented on Oregon v. Newcomb, a Fourth Amendment case involving animal cruelty charges. The case was very interesting both from an animal rights perspective and from a search-and-seizure perspective: A cop was called to a woman’s house following complaints of abuse and neglect of her dog. Upon arriving, the cop found the dog emaciated, seized him, and took him to the police vet. The vet took a blood test, found out there was nothing wrong with the dog except he was being starved, and charges were filed against the woman. She filed a motion to suppress the blood test results, arguing that it was a warrantless search of her property.
The Oregon Supreme Court wrote a wonderful opinion from an animal rights perspective: Even though the Fourth Amendment protects people’s “effects” from unreasonable search and seizure, some “effects” differ from others in that they are sentient. From a Fourth Amendment perspective the decision was more nebulous; it is unclear whether the court meant that the blood test was not a “search”, or a permissible search due to exigent circumstances because of Juno’s condition.
But there was one thing that caught my eye as I was reading the decision, and I highlighted it in my review:
It’s not difficult to read between the lines in Newcomb, even though the Court doesn’t really do that. Newcomb said to the police officer that she fed the dog WinCo food bought in small packages. WinCo is a low-grade kibble that sells in bulk at Costco, chock-full of grains, chemicals, and artificial fillers. It’s telling that the defendant did not buy the kibble in bulk, but rather in small packages: poor people can’t afford to spend on bulk and reap the savings, which is true for every product. As Yesim Orhun and Mike Palazzolo found in a study based on Nielsen data, frugality is hard to afford.
Hastings is located in San Francisco’s Tenderloin neighborhood, which is a window into the lives of people ravaged by extreme poverty. We frequently see folks who live in the streets with pets, which almost always seem groomed, well-fed, and very much loved. But since homeless people’s lives, by their very nature, are exposed to the eyes of strangers, the ability to detect animal welfare and neglect is heightened, to the point that the police might intervene more frequently than when it gets reports of neglect in houses. Obviously, Newcomb was not homeless. But the reason she provided for the dog’s emaciated condition is very telling, and might also explain the police’s zealousness in following up on the complaint.
Don’t get me wrong: I think the court’s decision is 100% correct. The rights of an animal that is mistreated should trump the “ownership” rights of whoever owns him or her, regardless of social class. But I think it does raise questions as to whether we enforce these laws equitably, and whether we should develop means to report and expose animal abuse and neglect in other settings.
Happily, my colleague Justin Marceau from Denver University has addressed this issue much more thoroughly in his excellent new book Beyond Cages. Marceau’s main argument is that, amidst the diverse and varying opinions and philosophies underpinning human enthusiasm for protecting nonhuman animals, the movement, such as it is, tends to coalesce around the lowest common denominator: crying out for harsher and harsher punishments for animal cruelty. And, just so that we understand, this rarely manifests in thorough investigations against corporate giants propagating animal cruelty, such as Smithfield Foods or Sunrise Farms (suppliers of the so-called ‘humane meat/eggs’ to Whole Foods and Amazon): much more common is taking out our collective ire at individuals, because, as both Marceau and Sherry Colb argue, this allows us to keep engaging in everyday complicity in cruelty to animals (via consuming animal products, visiting zoos and circuses, wearing leather, etc.,) while pretending that cruelty to animals is an aberration, a personal pathology of deranged, psychopathic individuals who abuse and neglect the animal we most care about as a society: our beloved, anthropomorphized pets (for a fascinating critique of pet ownership, see Jessica Pierce’s fantastic and thoughtful book.)
One of my students wrote a marvelous seminar paper last spring about touch deprivation in the lives of the homeless and, among her other arguments, she highlighted how we dehumanize homeless people while purporting to care for the welfare of their pets. I’m not 100% on board with her (well made) arguments, because I don’t see the animals raison d’être as providing companionship to people, but I loved that she problematized the criminalization of poverty through arguments of animal cruelty.
As an animal rights person, I am so glad people are making this point, because I think this recurrence to punitivism weakens, rather than strengthens, the animal rights movement; but it seems that Marceau sees this as an aberration of the animal rights movement compared to other civil rights movements. Marceau writes:
The animal protection movement – on an organizational and individual level – regard the fight to secure protections for animals as a civil rights issue. Analogies to women’s rights, LGBTQ legal victories, and even the abolition of slavery and the fight against racism are common tropes. But is the movement seriously interested in civil rights and broad social change? Incarceration is a most unlikely ally for a movement that might earnestly desire far-reaching social reform. Never has a social change or civil rights cause been so thoroughly immersed in the coercive, prosecutorial arm of the State. Indeed, the animal protection movement’s commitment to ever harsher criminal punishments and more aggressive enforcement of the criminal law may serve as a case study for understanding how other movements should conceive of their relationship with the carceral state.
Unfortunately, if other movements have not managed to co-opt the “coercive, prosecutorial arm of the State” for social justice ends, it’s not for lack of trying. As I explain here, here, here, here, and here (coming soon to a database near you via Vol. 68 of the Buffalo Law Review), a considerable thrust of the social justice struggle’s energy has been devoted to shaming, discrediting, obliterating, calling for prosecution and incarceration of, and taking away due process protections from the people these movements dislike. The latest example (for shame!) is the absurd and obscene persecution of Judge Persky; the scorched-earth mentality knows no bounds and has followed him off the bench as well. If anything, the animal rights movement is an example of what happens when this animus, which enjoys considerable success in destroying and ruining people’s lives via the cyber-guillotine of social media, is coupled with state cooperation.
Indeed, that we see this phenomenon operating in distinct and separate activist spaces such as the animal rights movements and, say, #metoo, is proof of what I argue in my Progressive Punitivism piece: that this is not some isolated pathology of the left, but rather part of the collective disease we all suffer from–across the entire political spectrum–as a consequence of marinating in the carceral state logic for the last fifty years. When we’ve been consistently taught, since Nixon (and perhaps even before), that all problems are criminal justice problems, and that all of them can and should be solved by locking people up, is it really any surprise that we see this logic operating in entirely different spheres of the social activism world?
Precisely because the animal rights movement regularly makes comparisons to other social justice causes (which I, for one, see as perfectly apt and insulting only if one views them through a speciest lens), it should lead the way in seeking to liberate, not to incarcerate. The true meaning of intersectionality lies in finding common ground and uniting struggles, not in hairsplitting the left apart. If this movement wants to expend energy in the direction of the criminal process, it must do so by providing strong support to open rescuers arguing for a necessity defense; for people who are facing the carceral state, not propping it up.
In addition to being engrossed in my animal rights/criminal justice project, I have the happy and challenging obligation of writing an encyclopedia entry for the Oxford Research Encyclopedia of Criminology and Criminal Justice on “politics and penality.” This is a daunting project because it calls for a preliminary working definition of what current scholarship means by “politics” and what it means by “penality.” Critical writings on punishment and society, especially on the macro level and especially recently, tend to examine punishment within a reality of political priorities, and particularly in the context of power and inequality in their many forms. This calls for a loose, broad definition of “politics”. Moreover, scholarship has come to understand penality as a broad regime, beyond obvious and visible representations of penal power such as criminal courtrooms and prisons.
I’m still thinking about how to conceptualize the project (this post is part of that reflection), but it seems to me like there are at least three trends in recent literature on politics and penality that are particularly interesting:
1. The Separation and Overlap of Politics and Penality and the Importance of Neoliberalism as an Explanatory Factor
As I mentioned, one of the major novelties of the literature is observing and reporting on manifestations of penality outside the prison. In that respect, the work of critical geographers, economists, and public policy scholars has been most instructive. The notion of “million dollar blocks” has brought prison planning and expense out of the prison and into neighborhoods. The work on the impact of incarceration on families expands the circle affected by mass incarceration beyond the prison. The work on the conflation of ghetto and prison shows not only exclusion and confinement operating in and out of the prison, but also the inexorable link between the decline in welfare and the rise in incarceration as economic factors. Work that sees the hand of incarceration in landscape and industry; this “carceral term” is especially linked to the overall rise in importance of neoliberalism in explaining penality. It seems like neoliberalism is now at the heart of any macroanalysis of politics, and penality is no exception: what emerges from the literature is the sense that the tyranny of capitalism, miserly manifestations of shrinking welfare, and in general, the lack of care for the bottom 15% (20%? 50%? 99%?) of the population is what drives penality. This school of thought, which sees penality as the product of a grander political program, manifests itself not only in the context of class, but also race (particularly in North American writings that see punishment as part of a “racial project”). These big picture analyses tend to suggest a grand and sinister plan, in which punishment serves as a tool for a larger political economy scheme (echoing radical Marxist criminology) and has been criticized by some as imposing current notions of neoliberalism and capitalism rather than taking historical or contemporary actors on their own terms. There are also big questions as to the extent to which grand political trends (such as managerialism/actuarial justice) trickle down to actual actors. Neoliberalism also means that, popular progressive calls for abolitionism aside, it’s hard to imagine what abolitionism would actually look like, though some try.
2. The Association of Punitivism with Particular Political Positions
3. Geopolitical Penality, Penality and Protection, Penality and National Security
New literature sees penality beyond the context of the domestic, as a manifestation of growing nationalism and security trends in a variety of countries around the world. The idea of border criminologies looks at how penality, xenophobia, and national security intersect, as does the relatively new field of crimmigration. As recession-era politics in the global north curbed incarceration, they affected a shift in resources and private investment toward immigration enforcement, the use of criminal logics in the immigration context, and the introduction of criminal technologies in managing immigration. Also important is the penal manifestation of political shifts in postcolonial and developing settings.
Please, let me know if there are other hot topics in politics and penality that you think are relevant!
This morning on Twitter, Shaun King took on the schadenfreude festival that surrounded the reports that Paul Manafort–perhaps the shrewdest collaborator with the Russians in the context of the 2016 election and an unscrupulous white collar crime offender–is going to be in solitary at Rikers. King said:
I see people excited to see Paul Manafort sent to Rikers Island and put in solitary confinement.
1. Rikers Island should be closed down 2. Solitary confinement should be ended.
We must be so principled in our calls for reform that we want them even for our enemies.
I couldn’t agree more. This is one more example of the evils of progressive punitivism, which I discussed in this primer. No matter how many resistance-related hashtags are affixed to these expressions of joy, they are the opposite of revolution; rather than deeply upending the rationales of the punitive state, they consist merely of turning it around 180 degrees. Instead of torturing poor people of darker skin, we’ll torture rich people of lighter skin. This is not reform; it’s tribalism.
I’ve written two pieces on progressive punitivism so far. The first, based on my Not Your Typical Kavanaugh Opinion Piece, shows how some aspects of the #metoo movement feed into the most noxious aspects of progressive punitivism, namely the encouragemenet for people to marinate in victimization as a condition of being heard (forthcoming from JCRED). The second, based on this post, argues that the tendency to demonize everyone involved in failed criminal justice reform (particularly painting well-meaning people as racist) is ahistorical and harmful to the movement overall, and that it is much healthier for both academics and reformers to analyze people on their own terms (forthcoming from LSI). The third piece, which I’m working on now, is for the Punishment and Inequality conference at the University of Bologna. In this piece I try to unpack the intellectual roots of progressive punitivism and come to some surprising conclusions.
It turns out there is very little in the history of conflict and radical criminology that tackles the question, “whatever shall we do with the rich after the revolution?” Admittedly, much of the radical criminology paradigm consists of questioning the connection of crime with class; the oft-quoted maxim from Anatole France’s The Red Lily talks about how ‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ To criticize how the law applies to the poor is to implicitly question how it applies to the rich, because criminalization and severity get their meaning from relativity and context. Critical and radical criminologists have highlighted areas in which the rich commit crime with impunity–white collar crime, environmental crime, state crimes, etc.–but save for, say, the post-Enron outrage, there’s been very little to foreshadow the explosion of punitive sentiments on the left that we see today. Perhaps the exception is carceral feminism, which was foreshadowed in Catharine MacKinnon’s writing; she seems to support this aspect of the #metoo movement, opining here that the online outrage and excoriation campaigns we see are an outcome of the incompetence of formal criminal law in addressing sexual harassment. For an even more extreme example of the antecedents of carceral feminism, see this passage from Valerie Solanas’ SCUM manifesto:
SCUM will kill all men who are not in the Men’s Auxiliary of SCUM. Men in the Men’s Auxiliary are those men who are working diligently to eliminate themselves, men who, regardless of their motives, do good, men who are playing pall with SCUM. A few examples of the men in the Men’s Auxiliary are: men who kill men; biological scientists who are working on constructive programs, as opposed to biological warfare; journalists, writers, editors, publishers and producers who disseminate and promote ideas that will lead to the achievement of SCUM’s goals; faggots who, by their shimmering, flaming example, encourage other men to de-man themselves and thereby make themselves relatively inoffensive; men who consistently give things away — money, things, services; men who tell it like it is (so far not one ever has), who put women straight, who reveal the truth about themselves, who give the mindless male females correct sentences to parrot, who tell them a woman’s primary goal in life should be to squash the male sex (to aid men in this endeavor SCUM will conduct Turd Sessions, at which every male present will give a speech beginning with the sentence: `I am a turd, a lowly abject turd’, then proceed to list all the ways in which he is. His reward for doing so will be the opportunity to fraternize after the session for a whole, solid hour with the SCUM who will be present. Nice, clean-living male women will be invited to the sessions to help clarify any doubts and misunderstandings they may have about the male sex; makers and promoters of sex books and movies, etc., who are hastening the day when all that will be shown on the screen will be Suck and Fuck (males, like the rats following the Pied Piper, will be lured by Pussy to their doom, will be overcome and submerged by and will eventually drown in the passive flesh that they are); drug pushers and advocates, who are hastening the dropping out of men.
What does this radical program of punishment, excoriation, required groveling and ceremonial apologies resemble? Unsurprising answer: Communist China’s criminal law. While criminalization, tribunals, and harsh punishment were part and parcel of the cultural revolution, China didn’t actually have an official criminal code until 1979. The Maoist authorities had drafted one, but Mao believed it unwise to codify a criminal law that later might restrain the party. Still, these notions of criminal law as embedded in politics characterized the eventual legislation. As Donald Clarke and James Feinerman argue in Antagonistic Contradictions: Criminal Law and Human Rights in China, the question of what constitutes a crime was nebulous in the criminal code of Communist China, and highly dependent on the perpetrator’s location on the class food chain. As they explain:
The Criminal Law (CL) does not so much define which acts are punishable as prescribe what the sanctions shall be when relatively severe punishments are deemed in order. The definition of crime is accomplished outside the Criminal Law by reference to political exigencies or generally accepted standards of morality. There is little perceived danger in allowing government officials to impose their own standards of morality, since Chinese state ideology does not accept the legitimacy of multiple standards of morality.
Consider, for example, the provision for analogy (Article 79 of the CL): a “crime” not stipulated in the CL (or elsewhere) may be punished according to the most nearly applicable article. This shows that if rules defining crime are “law,” then the very notion of “crime” is not a “legal” concept; the determination of whether a particular act constitutes a crime is something that must take place outside the CL. Thus, while the CL tells you what punishment to apply for a particular crime, it is often unhelpful in determining whether a crime has been committed. In this respect, the CL resembles the rules for punishment of Imperial China, which stipulated any number of punishable acts in great detail, but also contained provisions allowing for analogy and punishing “doing what ought not to be done.”
The Special Part lists various crimes and their punishments. Pride of place goes to counter-revolutionary crimes, which are defined as “all acts endangering the People’s Republic of China committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system” [but are very rare despite their textual prominence.] . . The other chapters in the Special Part cover crimes of endangering public security, undermining the socialist economic order, infringement of personal and democratic rights, property violation, disruption of the order of social administration, disruption of marriage and the family, and dereliction of duty and corruption.
The Special Part is a relatively skimpy 103 articles. . . One reason for the relative simplicity of the Chinese CL is that the provision on analogy offers an escape hatch in case of imperfect or careless drafting. Another reason is that the CL is supplemented by numerous other pieces of special legislation either specifically criminalizing a certain act or prohibiting an act and providing vaguely that “where it constitutes a crime, criminal responsibility shall be affixed,” without providing any guidance as to under what circumstances the performance of a prohibited act would constitute a crime. Finally, it must be remembered that the CL is as much a political text as a legal one; its drafters were concerned with providing a legal basis for state action, not with worries about due process, and it was designed to be used by judicial and public security cadres with a low educational level. Although the late 1980s and early 1990s have seen a movement among the Chinese legal community to revise the wording of the Criminal Law in an attempt to make it technically more elegant, no revision has yet taken place.
Essentially, what Clarke and Feinerman are describing is a punishment system that relies on the sentiments of the communist order toward the offender to even make the decision whether a crime has been committed. A poor person stole bread? Revolutionary impetus. A rich person stole bread? Class criminal.
One possible (and reasonable) counterargument could be that all criminal codes are, covertly, Maoist “little red books” by virtue of differential enforcement. After all, isn’t a city ordinance that prohibits any person from sitting or lying on a city sidewalk, but yields fines only against poor, homeless people, exactly the same as a “political texts” that “impose [their] own standard of morality”? Well, of course they are. But the difference between these codes and the Maoist criminal code is the difference between covert and overt intent. The Maoist code explicitly declares its intent to focus on counterrevolutionaries.
So what’s worse, a law that purports to criminalize in a neutral, universal way, but is enforced in a way that targets members of a particular class, or a law that explicitly says that it addresses only members of a particular class? There’s something to be said for the latter: at least it’s honest, which means that if we dislike its overt targeting, we can work to change it. Differential enforcement, on the other hand, can work covertly, and remain undetected. But this rationale does not neatly address what happens in the context of progressive punitivism, for two main reasons.
First, the days in which the mainstream public was in the dark about differential enforcement are long gone. The disparities that critical criminologists have been studying for decades–racialized police activity, ideological bias in charging decisions, sentencing disparities for members of different races and classes–are all there in the open. We studied this stuff before it was cool, but now progressive Millennials are born with the Michelle Alexander playbook in hand. They have come of age, politically, against the backdrop of Ferguson; they have been reading excellent journalistic coverage of the criminal justice system and listening to podcasts about miscarriages of justice for years. Honestly, there’s not much difference now, in terms of the progressive consciousness, between laws that explicitly target the poor and laws that are facially egalitarian but differentially enforced. This is good news for criminologists–we’ve wanted everyone to know this forever, and finally, the combination of colleagues with a desire to address the mainstream and journalists who made it accessible has succeeded in injecting the realities of criminal justice administration into the mainstream conversation (this conversation could use a little, or actually a lot, of nuance, but we’ll turn to that later.)
Second, even with an overt policy, there has to be a desire to change it. If lawmakers and constituents are overall pleased with policies that support a particular political order and target people on the basis of their class affiliation, it will be quite difficult to introduce change. Regardless of whether the class/race/gender bias of law is overt or covert, the ability to move it in one direction or the other depends largely upon whether its targets are people that “we” (for whatever value of “we”) like or dislike.
Which leads me to conclude that, even though we can find Maoist, or radical feminist, antecedents to the appetite for punishing the rich/male/white that permeates progressive discourse, its most obvious intellectual and cultural legacy is… conservative discourse.
Conservatives and progressives don’t live on different planets. The American public (as well as the American academic scene) has experienced decades of exposure to punitive ideologies and policies, and these, as well as their legacies, are bound to leave imprints on social movements of all stripes. Criminal justice and punishment scholarship in the United States is steeped in this punitive legacy–and this is characteristic, as Naomi Murakawa, Elizabeth Hinton, and others tell us not only of Nixon and Reagan, but also of Democrat politicians. After all, as Jonathan Simon explains, no politician, of any stripe, wants to be perceived as “soft on crime.”
Decades of being steeped in a program of conservative punitiveness has taught both conservatives and progressives three important lessons. The first is that criminal justice is the only hammer in the toolbox, and therefore each and every problem must be a nail. If that’s how we have been solving the problems of “inner city delinquency” for years, why would we not welcome any bad behavior on the part of the wealthy and privileged with choruses of “lock him up”?
The second lesson is that it is normal to think of criminal justice as a tool for separating communities across identities. I’m sure I tell you nothing new when I remind you that, while 1 in 100 Americans is behind bars, that figure is much higher for particular segments of the American population: 1 in 9 young Black men is incarcerated, and 1 in 3 is under some form of correctional supervision. Racial and class inequalities are found at every turn; in policing, in criminal courtrooms, and in sentencing, to name just a few. Many criminal justice critics, in academia and in the activist realm, treat this overrepresentation not as a coincidence, but rather as part of a systemic project of crystallizing and enhancing inequalities. Is it any wonder that, against a backdrop of “walk all over the poor”, a non-imaginative response is, “walk all over the rich”?
The third lesson, which is perhaps the most painful, is that the quintessential way to get the talking stick in America is to be a victim. Just yesterday we learned that Tricia Meili, the Central Park jogger who was viciously assaulted and left for dead decades ago, is calling for a release of investigation materials in the cases of the Central Park Five, the five teenagers who were falsely accused of assaulting her. We know who did it: the responsible party is in prison, has confessed to the crime, and is tied to it via robust forensic evidence (the only person who is still confused about this is Trump). We have seen footage of the interrogations of the teenagers. Meili is owed compassion and support for her harrowing experiences, as well as admiration for her long recovery process. But why is she an authority on an event she has no memory of? That we award victims an attentive ear on such matters shows how victimization, or more accurately, a spectacle of suffering, is the qualification you need to be an authority on criminal justice in America. #BlackLivesMatter and #metoo have internalized these messages all too well: in the face of victim voices serving the conservative agenda, like the Tate family, Mark Klaas, and Dominick Dunne, is it any wonder that the progressive response is to put victimization and trauma at the forefront of its own struggle?
The problem with these non-imaginative responses, as Shaun King reminds us, is that progressive punitivism is, essentially, a little-changed version of the conservative punitivism playbook. Applauding the incarceration of a reviled man on solitary at Rikers has as much potential for enshrining the practices of solitary, and the conditions at Rikers, as was applauding the incarceration of the people that the progressive movement cares about in identical conditions. We can and should do better than this every day, but that takes imagination, and shaking off the paradigms shaped by decades of criminal injustice doesn’t come easy. Still, we have to try.