Essential Readings for CCC3: COVID-19 Meets Mass Incarceration

In anticipation of our upcoming symposium about COVID-19 and mass incarceration, here are a few sources that our attendees might like to read. It’s not an exhaustive list; rather, it focuses on some of the themes we will be covering throughout the symposium.

Prisons, Disease, Medicine

Ashley Rubin, Prisons and jails are coronavirus epicenters – but they were once designed to prevent disease outbreaks, The Conversation, April 15, 2020

Misha Lepetic, Foucault’s Plague, 3 Quarks Daily, March 4, 2013

Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, Harvard Civil Rights–Civil Liberties Law Review 48(1) 2013: 165-215.

Osagie Obasogie, Prisoners as Human Subjects: A Closer Look at the Institute of Medicine’s Recommendations to Loosen Current Restrictions on Using Prisoners in Scientific Research, Stanford Journal of Civil Rights & Civil Liberties 6(1) 2010: 41.

COVID-19 In Prisons

Brendan Saloner, Kalind Parish, Julie A. Ward, Grace DiLaura, Sharon Dolovich, COVID-19 Cases and Deaths in Federal and State Prisons, JAMA, July 8, 2020

Hadar Aviram, Triggers and Vulnerabilities: Why California Prisons Are So Vulnerable to COVID-19, and What to Do About It, Tropics of Meta, July 3, 2020

Hadar Aviram, California’s COVID-19 Prison Disaster and the Trap of Palatable Reform, BOOM California, August 10, 2020

Sharon Dolovich, Mass Incarceration, Meet COVID-19, University of Chicago Law Review Online, Nov. 2020

Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, The New England Journal of Medicine, May 2020

Oluwadamilola T. Oladeru, Nguyen-Toan Tran, Tala Al-Rousan, Brie Williams & Nickolas Zaller, A Call to Protect Patients, Correctional Staff and Healthcare Professionals in Jails and Prisons during the COVID-19 Pandemic, Health and Justice, July 2, 2020

The San Quentin Catastrophe

Megan Cassidy and Jason Fagone, 200 Chino inmates transferred to San Quentin, Corcoran. Why weren’t they tested first? San Francisco Chronicle, June 8, 2020

AMEND SF and UC Berkeley, Urgent Memo – COVID-19 Outbreak: San Quentin Prison, June 15, 2020

Megan Cassidy, San Quentin officials ignored coronavirus guidance from top Marin County health officer, letter says, San Francisco Chronicle, August 11, 2020

Al Jazeera Front Lines, Pandemic in Prison: The San Quentin Outbreak, October 28, 2020

In re Von Staich on Habeas Corpus, A160122, California Court of Appeal for the First District, October 20, 2020

Solutions and Policies

Hadar Aviram, Gov. Newsom’s Release Plan Is Not Enough, San Francisco Chronicle, July 10, 2020

James King and Danica Rodarmel, Gov. Newsom must release more people from prisons to protect Californians and save lives, The Sacramento Bee, July 11, 2020

Jason Fagone, California could cut its prison population in half and free 50,000 people. Amid pandemic, will the state act? San Francisco Chronicle, August 16, 2020

Ruth Wilson Gilmore in conversation with Naomi Murakawa, Haymarket Books, April 17, 2020

Reproductive Justice, Women, and Gender in CA Prisons

Sulipa Jindia, Belly of the Beast: California’s dark history of forced sterilizations, The Guardian, June 30, 2020

Jason Fagone, Women’s prison journal: State inmate’s daily diary during pandemic, San Francisco Chronicle, June 14, 2020

Valerie Jenness, Transgender Prisoners in America, September 5, 2016

AJ Rio-Glick, COVID-19 Adds to Challenges for Trans People in California’s Prisons, Vera Institute of Justice Blog, July 7, 2020

COVID-19 in Immigration Detention Facilities

COVID-19 in Jails, Prisons, and Immigration Detention Centers: A Q&A with Chris Beyrer, Johns Hopkins School of Public Health, September 15, 2020

American Bar Foundation, Impact of COVID-19 on the Immigration System

Carmen Molina Acosta, Psychological Torture: ICE Responds to COVID-19 with Solitary Confinement, The Intercept, August 24, 2020

COVID-19 Prevention in Prisons and the Problem of Buy-In

Throughout the last few months, there’s something that’s been constantly gnawing at me and I haven’t had a moment to process in an organized way. I started thinking about this a lot when the AMEND report came out in June, reporting that people at San Quentin were afraid to get tested or report symptoms, lest they be placed in isolation in a death row or solitary confinement cell. And it came up again when I listened to the Assembly hearing on the PPE wearing failure and the commentary about the “physical plant” being “not conducive to compliance.” Then, I thought about it again when I read the AG’s briefs yesterday, detailing all the “reasonable” COVID-19 prevention steps they took. And finally, I felt a sense of despair and futility when I read this well-intended missive from Brendon Woods:

My immediate, gut reaction to the idea of vaccination priority was this: If I were incarcerated in one of the places that experienced horrific outbreaks–or anywhere else in CA, really–why would I believe anyone from CDCR or CCHCS offering me a vaccine, treatment, PPE, quarantine space, transfers, or anything else, except a ticket out of the system? And why on earth would I want to cooperate with anything short of being released? The sense of futility comes from a strong core realization that the trust between the state and incarcerated people is so deeply broken that, even when reasonable steps are being proposed, they’ll be understandably doubted. The long history of being swindled and harmed, especially in the context of healthcare, is so embedded in the system’s DNA, that any prevention or treatment initiative must take into account poor buy-in.

I’m not a doctor or a public health expert, but it seems obvious to me that, when designing a public health response, one important consideration is public buy-in. As this paper explains, effective COVID-19 prevention measures depend, in big part, on an enormous amount of groundwork to foster compliance, including virtual community building, fostering solidarity between high-risk and low-risk groups, and trust building between decision-makers, healthcare workers, and the public. What we’ve seen in the U.S. on the national level is instructive of what happens when the government not only fails to make this effort, but actively stokes the opposite sentiments. I suspect that even a reasonable administration would have had trouble containing the virus in such a big country with deep pockets of ignorance and misinformation, but given the Trumpian legacy of actively creating misinformation and division, this is going to be a huge challenge for whoever runs the COVID-19 response for the Biden administration.

What we’re seeing in CDCR facilities is a crystallized example of this problem. Efforts to implement pandemic prevention methods have to contend with deep mistrust of prison authorities in general, and prison healthcare in particular, which have profoundly painful historical roots. Osagie Obasogie reminds us of the horrific history of harm and deception in prison healthcare in this piece:

As early as 1906, Dr. Richard P. Strong—director of the Biological Laboratory of the Philippine Bureau of Science who later became a professor of tropical medicine at Harvard—gave a cholera vaccine to twenty-four Filipino inmates without their consent in order to learn about the disease; thirteen died. Though this provides an early modern example of using prisoners as human subjects, it certainly was not the last. Twelve inmates from Mississippi’s Rankin Farm prison became test subjects in 1915 to study pellagra—a disfiguring and deadly disease characterized by skin rashes and diarrhea. Though common wisdom at the time suggested that pellagra was a disease caused by germs, Dr. Joseph Goldberger—a physician in the federal government’s Hygienic Laboratory, predecessor to the National Institutes of Health—thought it was linked to malnutrition characteristic of Southern rural poverty. After Mississippi Governor Earl Brewer promised pardons to all participants—an inducement to participate in research that would be intolerable today–Goldberger tried to prove his theory that poor diet caused pellagra by subjecting inmates to what many called a “hellish experiment”: eating exclusively high-starch foods such as “corn bread, mush, collards, sweet potatoes, grits and rice” that caused considerable pain, lethargy, and dizziness. Despite their pleadings to end the study, prisoners were not allowed to withdraw. And, in an early 1920s experiment that was as bizarre as it was gratuitous, 500 inmates at California’s San Quentin prison had testicular glands from rams, boars, and goats implanted into their scrotums to see if their lost sexual potency could be rejuvenated.

But one needn’t go that far back. Nonconsensual sterilization of incarcerated women was still going on as of 2013, when the practice was exposed and excoriated. The Guardian’s Shilpa Jindia explains:

Despite federal and state law prohibiting the use of federal funds for sterilization as a means of birth control in prisons, California used state funds to pay doctors a total of almost $150,000 to sterilize women. That amount paled in comparison to “what you save in welfare”, one doctor told the news outlet.

Against this backdrop, you would expect public health experts at CDCR to bend over backwards to build trust, so as to engender cooperation. Instead, they’ve done exactly the opposite. The most obvious problem, of course, has been the botched transfer from CIM. I can finally put my finger on what seemed so disingenuous in the AG’s brief from yesterday: “[P]etitioners’ attempts to suggest prisoner transfers of any kind are not safe or effective is not well taken.” The irony of taking offense at people’s understandable mistrust after this colossal fiasco is completely lost on them, which I find breathtakingly obtuse.

But the transfer issue is just one of many. Why would prisoners comply with PPE-wearing requirements when they see guards, frequently and openly, flouting these requirements with no consequences? Why would people rush to report symptoms and get tested when the consequence is that they’ll be put in places which they’ve associated, for decades, with punishment and deprivation? Most importantly, given the history of using prisoners as experiment subjects, how could CDCR and CCHCS possibly lay some trust groundwork when rolling out a vaccine, so that people don’t suspect them, understandably, of subjecting them to untested, unreliable treatments?

This is the real crux of the problem. It’s not that “the physical plant is not conducive to compliance.” It’s that the atmosphere of neglect, indifference, and cruelty, and the resulting deep mistrust, does not engender compliance, and at every turn in this situation, prison authorities have moved the compliance needle further out of whack. This problem is a big part of why the only way out is to release people. Whatever other preventative steps the authorities are taking, regardless of their objective usefulness, need to actually be adopted by people on the ground to succeed. Hanging informational posters and handing out masks might work with some fantasy environment in mind, but it doesn’t work with the institutions and people we actually have. And it doesn’t seem like the AG’s office, or CDCR officials, have even begun to comprehend the depth of this problem.

Post-Election Thoughts

The Scorpion and the Frog

The results of the election did not bring me immediate solace. I’m sure this has been the case for many folks who found it difficult to take off the psychological backpack we have been carrying for so long. In my case, the psychological weight is the product of daily engagement with this administration on various public forums, including having to spend least thrice a week, WEEKLY, for the last four years, in TV stations and radio studios talking about this. In November 2016, when I lost the fight for death penalty abolition and my beloved cat Spade on the week of the election, I made it my mission to be an expert in everything these cartoon villains were cooking up, and every morning I sat up abruptly in my bed, with my first thought being, “it’s already morning in D.C., what has he done today?” Every time I saw an unrecognized number on my phone it was a TV producer or journalist asking me things that I had to cram on. I’ve crawled through information on abominable, underhanded things that I could not have even imagined possible before the last four years. Engaging with this sewer of an administration every day, including weekends, has brought exhaustion and stress into our family life, soured my good humor and my patience at work, and taken a real, measurable toll on my health. Doing upbeat explainers, volunteering, and taking abuse via phone and text from voters has felt like wading through a swamp, and even though I wore my psychological hip waders, I resent and revile this administration for demanding that I set aside my own grief, decency, and decorum, and be constantly on-call to respond to venal, opportunistic excrement. After I gave the explainer on Justice Ginsburg’s replacement process, I could barely get out of bed for a few days.

But the miasma in my soul is slowly dissipating. The first time I felt truly rapturous was when I got a letter from Traci Felt Love, the organizer of Lawyers for Good Government. The letter reminded me of when we started L4GG and brought back the incredible week in which we shut down San Francisco International Airport in reaction to the Muslim ban. It was only then that the magnitude of our success in dethroning this monster started to hit me, and I’ve been slowly digesting it.

One thing that has greatly helped is ignoring the legal pageant of the absurd that Trump is mounting in various courts around the country. I have given myself permission to disengage from all his frivolous lawsuits, antics, last-minute personnel juggling, and desperate cries for attention. In January, no matter what happens in the interim, Joe Biden will be President of the United States. Whether Trump concedes (ya think?), resigns (hmmmm), flees to the Cayman Islands to a mansion with golden toilets (on brand) or is dragged out of the White House in handcuffs (appealing but dangerous), the outcome will be a change in administrations.

It’s useful to keep in mind the story of the scorpion and the frog. A scorpion, which cannot swim, asks a frog to carry it across a river on the frog’s back. The frog hesitates, afraid of being stung by the scorpion, but the scorpion assures the frog he won’t do that: “If I sting you, we’ll both drown, right?” This argument convinces the frog, which agrees to transport the scorpion. Midway across the river, the scorpion stings the frog anyway, dooming them both. The dying frog asks the scorpion why it stung despite knowing the consequence, to which the scorpion replies: “I couldn’t help it. It’s in my nature.”

Trumps are going to Trump. Giulianis are going to Giuliani. McConnells are going to McConnell, with or without us as their audience. It’s far more productive to focus our attention on the upcoming races in Georgia.

Drug Truce

Throughout the country, drug law reform gained more momentum. This wonderful post on the Drug Policy Alliance blog summarizes some of the main reforms, the most impressive of which was Oregon’s approval of Measure 110. The next step in procuring a truce on drugs was always going to be branching beyond marijuana, and for various political reasons that are difficult to explain to people outside California, I expected another state to move in that direction first.

What I find especially thrilling about the passage of Measure 110 is that it could open the door to an important dialogue about the value and benefits of psychedelics. MAPS has been leading the charge on declassifying these important substances and acknowledging their potential to help people with depression and trauma, as well as foster spiritual growth. Little by little, the hypocrisy is dissipating, but it’s going to happen on the state and local level first.

When the Perfect Is the Enemy of the Good

Amidst my joy about the passage of Prop 17 and the failure of Prop 20–a reactionary law-and-order package–the demise of Prop. 25 brought me some anguish. As I explained elsewhere, all the arguments against the abolition of cash bail were ridiculous except for one, which had superficial appeal: the idea that “algorithms are racist” and that we would end up with “something worse” than cash bail. Aside from the fact that it’s hard to imagine how risk assessment is “worse” than debtor prisons straight out of a Charles Dickens novel, there’s a basic misunderstanding of how algorithms work. I have been explaining and explaining, but for some reason am not getting through to people captivated by woke rhetoric: ALGORITHMS ARE NOT RACIST. They predict the future on the basis of the past. If they have racially disparate outcomes, it’s because they reflect a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. The overrepresentation of people of color in homicide offenses and other violent crime categories is not something that progressives like to talk about, but it is unfortunately true–not just a mirage caused by stop-and-frisk in low-income communities. The reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis. Solving these problems requires an administration committed to treating its citizenry fairly, not sweeping them under the rug by ignoring predictive tools that show what is actually going on. So powerful is the progressive self-deception that the ACLU, initially a supporter of eliminating cash bail, opted not to have a position on the ballot, because of the optics. I can’t even begin to tell you how many people I like and respect opposed Prop 25 using organizations’ positions as proxy, as if they couldn’t think for themselves. These organizations’ and people’s fears of being perceived as racists by supporting “algorithms,” the bogeymen of the left, was so overpowering that it hijacked the very real possibility to get rid of an actual, real, on-the-ground, in-the-open perversity: the only-in-America notion that people should pay money for their pretrial release.

The counterargument, made by some thoughtful folks, was that rejecting Prop. 25 would lead to a better proposal to abolish cash bail. But this argument exhibits deep ignorance of how political gains are made. Part of why I’m so upset about this is that I’ve already lived through a horrible round of the Perfect-Is-the-Enemy-of-the-Good game. Back in 2016, when we campaigned for death penalty abolition, I had to respond to arguments by progressives who thought that abolishing the death penalty was going to somehow “retrench” life without parole. The preciousness of this view infuriates me. As I explained until I was blue in the face, political progress is made incrementally. You can’t get to LWOP abolition without death penalty abolition. Expecting ballot propositions, which have to rely on broad coalitions, to be tailor-made to one’s exquisitely purist views about the public good is a recipe for disappointment. And, as Gov. Newsom said, the demise of Prop 25 essentially eliminates any possibility, motivation, or energy for getting together the “more perfect” solution to the bail problem that activists are yearning for. So, instead of celebrating the end of cash bail, progressives have yet again been duped into failing their own cause because the compromise wasn’t photogenic enough for them, and the big winner has been the bail bonds industry–you can see in this piece how effectively these scoundrels have coopted wokespeak to keep Victorian debt prisons alive.

Got a Sane Idea? Great! Wrap It in Sane Packaging

Just read a terrific Mother Jones article, which highlights the success of various local initiatives to divert resources from policing to less confrontational alternatives. Beyond my satisfaction with this outcome, I’m pleased with the rhetorical strategy used in these initiatives.

In the aftermath of the killing of George Floyd, many advocates were making proposals that sounded scary, because they were wrapped in odious movement jargon (defund! abolish! dismantle!). Thing is, the proposals themselves were not radical or insane; they were sane enough that even people who were victimized in scary ways could see the logic in them–if they had the background to understand them. Alternatives to policing are not earth-shattering discoveries. Anyone, not just hyperprogressives, who walks around the Tenderloin these days can sense the palpable shift in energy since the arrival of the wise and conciliatory Urban Alchemy folks. All these propositions are doing is rolling back the Nixonian logic, according to which you somehow get more justice if there are more cops, riot gear, and weapons on the streets. We were sucked into this insanity in the 1970s with the LEAA funding scheme, and later in the 1980s with civil asset forfeiture. You could be forgiven for thinking that “defunding the police” is an extreme proposal if you’re not familiar with how police departments used to be run before they became bloated paramilitary organizations.

But the success of this measures was not only rooted in their inherent reasonableness (and cost-effectiveness.) It was rooted in wise, matter-of-factly packaging, which offered positive alternatives to policing that people could get behind. There is an important lesson here for progressives looking for referendum victories, which I very much hope will be learned: packaging matters. Offering people a realistic vision of humane, therapeutic, preventative public safety works better than wrapping sane, totally plausible ideas in flurries of self-righteous performativity. And that means resisting the cultural zeitgeist, which pushes the movement to flood social media with the most preposterous, off-putting jargon, even when proposing things that would appeal to a broad swath of the population.

When incendiary terminology is used to explain sane, effective reform, more time is spent debating the terminology and performatively defending it than discussing the policies themselves. People who are put off by the rhetoric are exhorted to “check the website,” “do the work,” and “educate themselves” by folks who do not inspire any desire to engage any further with them or with their ideas. Indeed, one of the dumbest aphorisms of this movement is the classic “it’s not my job to educate you.” It’s nobody’s job to educate anyone else (except, in the case of teachers, their actual students.) But hurling insults and disdain on people, piling nonrequired homework on their backs, hiding good ideas behind performative nonsense, and finding fault in people asking to know what they’re expected to support and vote for, is not particularly likely to induce them to take the trouble to learn somewhere else. Decrying the burden of “unpaid emotional labor,” another unfortunate classic, is also not particularly persuasive. Not everyone needs to dance through their revolution like Emma Goldman, but very few people want to get flogged through it. Corollary: If you call yourself an activist, and you want to bring people to your coalition, yes, it is part of your job to educate them. I’m so pleased that the advocacy for these proposals took a different approach, one that voters could get behind. The result will be safer and happier streets in many U.S. cities.

The Marshall Project Survey and “Programspeak”

The Marshall Project has published the results of a political survey of incarcerated people, and they are extremely interesting. In a previous installment, they refuted the widely-held belief in broad support for Democrats behind bars; the majority of white prisoners would vote for Trump if they could. The current installment, in which the respondents were invited to opine on criminal justice policy, is just as interesting. Among other findings, even though there was a marked racial divide on questions about police violence and support for Black Lives Matter, 64% of incarcerated Republicans supported transferring funds from policing to social programs, by contrast to only 5% of incarcerate Republicans.

I highly recommend reading the whole thing, and have just one comment to make. In the survey, respondents were invited to comment on the kinds of interventions that would have kept them from prison, and they did list some of the “usual suspects”:

But the article then comments that many respondents ascribed the responsibility for their incarceration solely to their own behavior.

This is worth commenting on, because it dovetails with one of my findings fromYesterday’s Monsters, namely, the insidiousness and proliferation of “programspeak.” Programspeak is more than a jargon–it’s a worldview that is propagated in prison rehabilitative programming, all of which is geared toward telling the parole board a story of personal responsibility. At parole hearings, where the concept of “insight” is kind, there is a constant pressure on people to attribute their incarceration only to their own failings, without any allowance for environmental factors.

Now, there is nothing wrong with encouraging people to be accountable, and I think Marxist theories of crime take things too far when they divorce criminality from anything involving personal autonomy; even when choices are very constrained, we see evidence of agency (and to say otherwise is incredibly insulting to the large majority of people from disadvantaged backgrounds who don’t commit crime.) But adults with complex worldviews should be able to account for criminality in a way that does not discount the robust evidence of environmental factors, including poverty, difficult family lives, lead exposure, governmental neglect, lack of educational and vocational opportunities, and understandable, class- and race-based resentments. Unfortunately, this is not how it plays out on parole, where any effort to contextualize one’s personal history prior to the crime of commitment can be interpreted as “minimizing” or “lack of insight.”

This “programspeak” of personal accountability bleeds over to almost all other prison programming. I should know; I volunteered with, and visited, many of them. But it also bleeds out of the prison experience and accompanies people in their lives on the outside. In his ethnographic study of reentry, Alessandro de Giorgi found this self-attribution is so insidious that even after reentry, people blame themselves for not having a roof over their heads or basic groceries to feed their families.

Given the pervasiveness of programspeak, I’m not surprised to find that the folks surveyed by the Marshall Project emphasized their own responsibility. It’s being drilled into them throughout their incarceration. If anything, it’s a miracle that despite this aggressive, programmatic indoctrination, they articulate environmental factors as well. And to the extent that, after everything we know, people still subsribe to this heavyhanded partly-false consciousness, much of it is going to crumble because of the contrast between the consistent pressure on individuals to take responsibility for their actions and the equally consistent reluctance of prison systems to take even a shred of responsibility for what is being done to them, especially in the context of COVID-19.

Getting Rid of No-Knock Warrants Isn’t Enough

Yesterday we received the news that only one of the police officers involved in the killing of Breonna Taylor was to be indicted–and not for homicide, but for “wanton endangerment” involving shooting toward the neighbors’ homes. Because of the obvious point made by my colleague Frank Zimring in When Police Kill–that the hope to save more lives from police brutality should not be pinned on the criminal process–I want to focus on the question of saving lives, specifically in the context of knock-and-announce. A good starting point is this valuable commentary by my colleague Natalie Todak, who studies policing:

I agree and want to add a few words about how this is not only the fault of police officers, but of the Supreme Court.

You’ve all seen the knock-and-announce rule in action on your TV screens, every time a cop in a police drama loudly yells: “Police! Open up!” What you might not know is that the knock-and-announce rule has ancient roots in common law. In Miller v. United States, officers without a warrant knocked on the door of Miller’s apartment and, upon his inquiry, “Who’s there?” replied in a low voice, “Police.” Miller opened the door, but quickly tried to close it, whereupon the officers broke the door, entered, arrested petitioner and seized marked bills which were later admitted as evidence against Miller in a drug case. The Supreme Court held that “[t]he common-law principle of announcement is embedded in Anglo-American Law” and that Miller’s arrest was unlawful because the police broke in without first giving him notice of their authority and purpose.

The reason for this is obvious. In Wilson v. Arkansas, the court explains: “[A]nnouncement generally would avoid ‘the destruction or breaking of any house … by which great damage and inconvenience might ensue’.” And in Hudson v. Michigan, Justice Scalia expands:

One of [the interests protected by the knock-and-announce requirement] is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who “ ‘did not know of the process, of which, if he had notice, it is to be presumed that he would obey it … .’ ” The knock-and-announce rule gives individuals “the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry.” And thirdly, the knock-and-announce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the “opportunity to prepare themselves for” the entry of the police. “The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.” In other words, it assures the opportunity to collect oneself before answering the door.

J. Scalia (Op. Ct.), Hudson v. Michigan (2006)

Granted, in some cases there may be an advantage in hurrying in, because otherwise the police knock on the door can prompt the people inside to destroy evidence–especially in drug cases. But this advantage needs to be weighed against the drawbacks of violence: to mention just two possible scenarios, the police could be making a mistake and trashing the wrong person’s house, or the people inside might mistake them for a rival drug crew and shoot them. Because of these drawbacks, in Richards v. Wisconsin, the Court hesitated to create a special “felony drug exception”, exempting officers from the knock-and-announce rule in all drug cases. They explained:

We recognized in Wilson that the knock and announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given . It is indisputable that felony drug investigations may frequently involve both of these circumstances. . . But creating exceptions to the knock and announce rule based on the “culture” surrounding a general category of criminal behavior presents at least two serious concerns.

First, the exception contains considerable over generalization. . . not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence.

Second. . . the reasons for creating an exception in one category can, relatively easily, be applied to others. . . If a per se exception were allowed for each category of criminal investigation that included a considerable–albeit hypothetical–risk of danger to officers or destruction of evidence, the knock and announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.

J. Stevens (Op. Ct.) Richards v. Wisconsin (1997)

But it’s unclear who the real winner in Richards was. Even though the Court refused to create a blanket exception, the opinion did open the door to special circumstances in which the police might decide not to knock (because of exigent circumstances.) Many of these situations overlap with the exception that the state of Wisconsin sought (and didn’t get.) So we were left with police discretion as to whether to knock and announce or not.

Soon enough, this developed into a practice in which officers anticipated the need to enter without knocking and asked for a carte blanche from the magistrate signing the warrant to do so (so as to cover their asses in case their judgment is questioned at a later date)–and that in itself invited all kinds of shenanigans, such as inventing nonexistent informants to obtain the warrants.

The final blow to the knock-and-announce rule came in Hudson v. Michigan. The main remedy in cases in which the police obtain evidence in violation of the Fourth Amendment is, typically, the suppression of the evidence under the exclusionary rule: the prosecution can’t use it in their case-in-chief. But gradually, the post-Warren courts saw this as a steep price to pay: “the criminal goes free because the constable has blundered.” Because of that, in Hudson, the Court introduced a cost-benefit analysis: The evidence will only be suppressed if the benefit of deterring the police from the undesired behavior exceeds the cost of allowing a guilty defendant to “walk away on a technicality.” Hudson involved a situation in which the police did not knock and announce, and Justice Scalia took the exclusionary rule of the table, arguing that it was not the right fit. While the knock-and announce rule, he said, protected the right of people to be calm and collected when answering the door, it had “never protected. . . one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Justice Scalia proceeded to say that the exclusionary rule is no longer necessary:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

This turns out to be untrue. Not only do structural police reforms have mixed outcomes at best, monetary damages are completely meaningless because police officers are indemnified and police departments insured to the hilt. But the real outrage about this decision is the logic that the exclusionary rule has excelled so much in educating police officers about the rights and wrongs of the Fourth Amendment that it’s not necessary anymore. To support this argument, Scalia cited Samuel Walker’s book Taming the System, which showed that the exclusionary rule was an essential component in the reduction of constitutional violations. When Walker heard that Scalia cited his book, he was incensed, and wrote a hilarious-but-irate op-ed in the L.A. Times, titled, “Thanks for Nothing, Nino.” Walker explains:

[Scalila] twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.

My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court’s interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.

Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.

The ideal approach is for the court to join the other branches of government in a multipronged mix of remedies for police misconduct: judicially mandated exclusionary rules, legislation to give citizens oversight of police and administrative reforms in training and supervision. No single remedy is sufficient to this very important task. Hudson marks a dangerous step backward in removing a crucial component of that mix.

Samuel Walker, “Thanks for Nothing, Nino,” Los Angeles Times, June 25, 2006

There are now numerous efforts, through litigation and legislation, to outlaw no-knock warrants at the state level. But doing this will not remove the problem. All it will do is forbid the judge from kosherizing the police decision to enter without knocking–a decision that they will still be allowed to make, with no consequences, under Hudson v. Michigan. As long as the Supreme Court does not overturn this decision, the discretion in the field will still be available–and given the post-Warren Courts’ tendency to give officers in the field, making decisions based on “totality of the circumstances”, the benefit of the doubt, the problem will not go away. Not only is Breonna Taylor’s death the fault of the entire policing profession, it is also the fault of the Supreme Court’s lopsided cost-benefit analysis, and I dread to think about the people who will continue to pay the price for these misguided practices.

Blackface Scandals Are the Logical Conclusion of the Performative Goodness Race

As if we don’t have bigger tofu slices to fry–with 57 days till the election, we absolutely do–the academic/activist left is atwitter (pun intended) about yet another blackface scandal. This time, it’s Jessica Krug, African and Latin American history professor at George Washington University, whose identity as “Jess La Bombalera” was, as it turns out, fictitious: she grew up Jewish in Kansas City. Facing imminent unmasking by colleagues who suspected that something was awry, Krug published a self-excoriating screed on Medium, in which she admitted to fabricating “a Blackness that I had no right to claim: first North African Blackness, then US rooted Blackness, then Caribbean rooted Bronx Blackness.”

This mess comes to us just a few years after the exposure of Rachel Dolezal, the NAACP official who cultivated an African-American-passing appearance and sparked a debate on whether “transracial” was a “thing,” and a few months after the death of author H.G. Carrillo (“Hache”) of COVID-19, which exposed his lifelong fabrication of a Cuban-American identity. Because of the nature of the identity-manufacturing–white people posing as black–Krug and Dolezal drew understandable ire, and both scandals erupted amidst waves of uprising about racial inequality.

Plenty of personal trauma and pathology is evident in both stories, but Durkheim taught us to see even the most personal phenomena as social facts. Given the progressive obsession with performance, these scandals are a Petri dish for dissection and, faithful to the trappings of the genre, most of these have revolved around the authenticity (or lack thereof) of apologies. But I found an especially insightful twitter thread by Yarimar Bonilla, who astutely remarks that it was “[k]ind of amazing how white supremacy means [Krug] even thought she was better at being a person of color than we were.” Bonilla offers revealing examples of how expertly Krug trafficked in the tropes of progressive oneupmanship:

She always dressed/acted inappropriately—she’d show up to a 10am scholars’ seminar dressed for a salsa club etc—but was so over the top strident and “woker-than-thou” that I felt like I was trafficking in respectability politics when I cringed at her MINSTREL SHOW. In that sense, she did gaslight us. Not only into thinking she was a WOC but also into thinking we were somehow both politically and intellectually inferior.While claiming to be a child of addicts from the hood, she boasted about speaking numerous languages, reading ancient texts, and mastering disciplinary methods—while questioning the work of real WOC doing transformative interdisciplinary work that she PANNED. She consistently trashed WOC and questioned their scholarship. She even described my colleague Marisa Fuentes as a “slave catcher” in the introduction to her book. Kind of amazing how white supremacy means she even thought she was better at being a person of color than we were.That pathology remains evident in her mea culpa article. Somehow she manages to remain ultra woke and strident, still on her political moral high horse, caling for white scholars to be cancelled –in this instance her own white self.

Yarimar Bonilla on Twitter, Sep. 3, 2020

Bonilla is not the only scholar who blamed white supremacy–in this particular case, Krug’s whiteness–for the scandal: elsewhere on twitter, Sofia Quintero quipped that “[n]othing says white privilege like trying to orchestrate your own cancellation.” But I think there’s something else going on here. As many people have observed, Krug materially benefitted from her deceit, through fellowships and opportunities open to underrepresented people of color. The benefits, however, don’t end there, and it’s time to be honest about this. Overall (no matter how much our Attorney General chooses to ignore this), white people enjoy preferential treatment across the board, starting with the very basic good fortune to avoid humiliating, dangerous, and sometimes lethal encounters with the police, and continuing through intergenerational wealth, opportunity, and representation. However, there are pockets and milieus–and they are not minuscule or insignificant–where being a person of color confers real, valuable social advantages. I happen to know this milieu, the academic-activist pocket, quite well, and I think the social dynamics in it explain a lot. It’s not just scholarships and fellowships (though there are examples of material benefits.) It’s the mantle of authenticity, the uncontested ability to hold a moral high ground, and the sometimes-explicit, sometimes-tacit permission to treat others publicly with disdain.

The moral high ground is not unrelated to material benefits in academia (such as they are, given the initial barriers to academia for people from marginalized backgrounds in the first place), but the mantle of superior morality in itself is a precious commodity for some academics/activists. Because white people cannot be black (or can they? Read Adolph Reed’s take on racial essentialism, if you can get around his disregard for Caitlyn Jenner), the next best thing is to be the best white person they can possibly be, which is why we engage in the pageantry of racial confessionals every time yet another horrific killing of a black person produces a swell of uprising against racial inequality (that there’s immense grief and rage is understandable, and it has to go somewhere, but it’s telling that it goes into this variant of moral theatre.) Krug and Dolezal knew full well that, in this competition, it’s turtles all the way down, and simply drew the obvious conclusion: the only way to win the performative goodness race, the ultimate white progressive oneupmanship, is to subvert the whole thing by becoming black yourself.

Except, as Bonilla astutely tells us, and as Krug and Dolezal have taught us, it doesn’t end there, because it turns out that white people haven’t cornered the market on performative goodness. It plays out in remarkably similar ways among academics and activists of color, where strident and edgy performance of authenticity confers the symbolic benefits of being better than other (less radical, less woke, more white-conforming) nonwhite people. Inevitably (and this is true even if you aren’t a white person pretending to be nonwhite), someone’s going to be woker than you, purer than you, more authentic and edgy than you (as Touré Reed wrote, the demand for this kind of performance is a problem in itself.) One’s own goodness is a helluva drug; one needs larger and larger doses, ad infinitum. On the brink of being unmasked, Krug correctly deduced that the only move left on the chessboard was self-cancelation: embracing an ethos of zero forgiveness and zero redemption must exact the ultimate price. After all, she says, “my politics are as they have ever been, and those politics condemn me in the loudest and most unyielding terms.”

Is there another way out of this grim festival of condemnation and self-condemnation? Yes, but only if we see the recent slew of blackface scandals differently. Whether or not Dolezal or Krug “get”, to use another odious idiom from this milieu, to be redeemed, is not particularly interesting to me; like Bonilla, I don’t think we can or should spend energy marinating in the bacchanalia of punishment that this sort of thing dredges up. Instead, I suggest that people like Dolezal, Krug, and Carrillo–like the many people who “passed” before them across racial lines in America–have valuable lessons to teach us about the social cost-benefit calculus of passing. If we view these scandals as social facts, we learn where the perceived advantages and drawbacks lie, and might come to important conclusions.

I remember reading Philip Roth’s The Human Stain with great interest and great discomfort. Roth’s protagonist, Coleman Silk, is an academic widely perceived as a Jew, whose life is destroyed following innocent quip at a classroom–using the word “spooks” for “spies”, a term that also carries racially-derogatory connotations. Subsequently, it is revealed that Silk is actually African American but had been passing as a Jew since a stint in the Navy. He completed graduate school, married a white woman and had four children with her, never revealing his African-American ancestry to his family. As Roth writes, Silk chose “to take the future into his own hands rather than to leave it to an unenlightened society to determine his fate”.

The Human Stain is crafted around a real story–the witchhunt against Roth’s friend Melvin Tumin for a similar innocent utterance. It’s not the only example: John McWhorter relays a similar incident, and if you want something more recent, this idiotic USC reaction to absolutely nothing is a prime example. Roth’s spin on this story of “cancelation” teaches us the same conclusions: endless competitions of moral superiority, lacking in compassion and forgiveness and hingeing on identity as the ultimate arbiter of all things, end up with the snake swallowing its own tail. It’s not a coincidence that Roth chooses to contrast the witchhunt with its logical conclusion: it’s the perfect confluence of our search for racial benefits and our appetite for meting out costs.

In other words, Krug, Dolezal, et al. are being reviled for being exceptions, aberrations, when they are mere corollaries of the game that everyone around them plays on the regular–a game of excoriations, public apologies, public rejections of apologies, obsessions with performance and appearance. I’m going to venture a not-very-wild guess that they are not the only ones. People of all colors in this mileu are so invested in this game, so I’d be surprised if there weren’t other passers around, trying to circumvent the white goodness competition only to find themselves playing the person-of-color goodness competition. Racism and racial inequality have wrought many ills, but this is one we can actually fix ourselves. Let’s stop playing this game, okay? It’s occupying so much cultural room that there isn’t enough left to do the actual work of racial equality–donating to worthy causes, supporting political candidates that move us farther in terms of racial and economic equality, revamping business to allow all families the chance of intergenerational wealth. How about, rather than tying ourselves up in knots about how we can come up with more, better, symbolic representation of our goodness, we call it quits and focus on quietly and efficiently doing the right thing? We could if we learned the right lesson from these scandalous morality tales, but I’m not holding my breath.

For a more lighthearted take on this, I highly recommend this hilarious conversation between Trevor Noah and Michelle Wolf. It suffers from some of the essentialist ailments I talked about (if she “passes” for a person of color, how can she “cry her way out of a ticket?”), but it’s so enjoyable nonetheless.

Nov. 2020 Ballot Endorsement: Yes on 25

Once upon a time, I was at a quantitative research conference, in which I was assigned to comment on a paper by two economist colleagues, Frank McIntyre and Shima Baradaran. They ran the numbers on bail, detention, and pretrial release, and found that, when controlling for severity of the offense and for criminal history, there was no racial discrimination in these pretrial decisions. The math was impeccable–far above my paygrade–because Frank and Shima are excellent at what they do. Their findings were deeply demoralizing: because race is so deeply baked into the American way of life, it turns out that people of color commit more of the kinds of offenses that land them in jail pretrial–either because of pretrial detention or because of bail amounts they can’t pay. It’s one of many examples in which well-intended efforts to scrub out race fail because of its protean quality: you hide it here, it pops up there. Yes, people of color do commit homicides and other violent crimes with more frequency than white people, and this happens for the same reason that they get more frequently arrested for the drug crimes they do not commit with more frequency: systemic racism. If we can’t address basic issues of deprivation, neglect, intergenerational poverty, and lack of opportunities for people of color and in low-income neighborhoods–crime will persist for the same reasons that criminalization persists.

This is the basic issue undergirding the debate about Prop. 25: In a world plagued by systemic classism and racism there are no good choices, but some are better than others. Prop. 25 invites us to affirm a reform adopted by the California legislature two years ago, which has not yet gone into effect: the elimination of cash bail. Lest you be confused, know that a “yes” vote affirms the reform and rejects cash bail; a “no” vote rejects the reform and keeps cash bail in place.

Under a cash bail system, the judge typically looks at a bail schedule–a “price list” that attaches monetary amounts to offenses based on a crude severity scale. The price listed for the offense with which you were charged is your bail amount. Since this is not the kind of money most people have available, there’s a workaround: the bail bonds industry. The defendant or their family pay the bail bondsman a nonrefundable amount, typically a tenth of the bail amount, and the bail bondsman essentially assumes the risk of absconding (“jumping bail”) or reoffending vis-á-vis the court. The existence of this industry negates any risk-based element that the cash bail system might have, because the person doesn’t actually bear the risk of their own pretrial behavior. Worse, as per this amazing exposé by my colleague Josh Page, the predatory bail bonds industry essentially feeds off the sacrifices and risks of women of color, who pay the premiums and co-sign the bonds. Even the amount owed to the bail bondsman is far more than many families can afford, which is why poor people who are at low risk of absconding or reoffending remain behind bars, as my colleagues Hank Fradella and Christine Scott-Hayward explain in their book Punishing Poverty.

The 2018 reform sought to replace this unfair system, which explicitly locks people up pretrial because they are poor, with a risk-based, no-cash model. The judge would use a risk-assessment tool to calculate the risk of absconding and reoffending and decide on release and limiting conditions accordingly.

Because cash bail is so atrocious, it is difficult to find a “no on 25” argument that isn’t equally atrocious (“people have a right to pay bail” takes the cake–I swear it’s in the voter brochure), but there is one that has superficial appeal: risk-assessment algorithms, even when they don’t explicitly factor in race, can factor in variables that closely correlate with race (including, for example, one’s arrest history) and thus exacerbate racially discriminatory outcomes. In other words, we are replacing the existing system with something that might be just as discriminatory, made worse by the facade of statistical/actuarial neutrality.

The problem with this seemingly appealing argument is that it completely misses the point of why race correlates with these race-neutral variables in the first place. My colleague Sandy Mayson has a fantastic paper, aptly titled “Bias In-Bias Out”, in which she explains:

[T]he source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology. The deep problem is the nature of prediction itself. All prediction looks to the past to make guesses about future events. In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it. What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology. Algorithms shed new light on an old problem.

Ultimately. . . redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk. [C]riminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion—in which case they cannot justify state coercion. To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible. Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

In other words, the algorithm is not “racist” in itself, and it can’t “scrub” racism out of the system. It reflects a racist reality in which, for a variety of systemic, sad, and infuriating reasons, people who are treated like second-class citizens in their own country commit more violent crime. In fact, the same problem is baked into Frank and Shima’s findings about the existing cash bail system: At the conference, our colleague W. David Ball, who was in the audience, astutely pointed out that the outcome was pretty much to be expected given the fact that, in California as in many other states, judges make pretrial release decisions on the basis of bail schedules–“price lists” that attach monetary amounts to offenses based on a crude severity scale. The overrepresentation of people of color in homicide offenses and other violent crime categories is an inconvenient truth for progressives–look at the report of the National Academy of Sciences on mass incarceration and at the evasive rhetorical maneuvers they use when they talk about this. Unfortunately, it is true, and as I explained above–the reasons why more African American people commit more homicides than white people are the same reasons why they are arrested more frequently for the drug offenses they don’t actually commit more than white people: deprivation, neglect, lack of opportunities, dehumanization and marginalization on a daily basis.

When you vote yes on 25, you are not exacerbating potentially racist outcomes from the algorithm. I can already tell you that the outcome will be racist, because it will reflect the reality, which is racist also. What you would do is eliminate the existing approach, which removes risk from the equation (because of the bail bondsman as the middleman) and lands people in jail simply because they cannot pay the bail amount. It won’t fix what is already wrong in the world, but it will take one slice of it–screwing people over because they are poor–and make it better. Vote Yes on 25.

Don’t Get Yanked by a Bad Man’s Chain

By all rights, we should spend our day mourning a national civil rights hero and taking heed of his stirring words of inspiration, as well as his eulogy given by another national hero. But a man who is their exact opposite–the psychopathic, semi-literate career criminal in the White House–won’t let attention drift from him and his infantile antics for a second, and so we now have this stupidity to deal with. The two-dime reality show host did what two-dime reality show hosts do: create some distraction to send you reeling and make your heads spin. And suddenly I’m prepping for a TV interview about this nonsense, which happens in 20 minutes, and there’s nothing to say, because it’s a nonstarter.

Yet again, our self-styled despot has composed some poorly-worded tweet with his signature preschool syntax and too many exclamation marks that threatens the basic civic fiber of governance and, like the circus masters of yore, whips everyone into a frenzy: exclamations, explainers, constitutional law primers, apologies, predictions, only to tell us that it was a joke.

He’s a bad man and an idiot. Leave him alone. Focus on John Lewis’ inspiring legacy:

Though I may not be here with you, I urge you to answer the highest calling of your heart and stand up for what you truly believe. In my life I have done all I can to demonstrate that the way of peace, the way of love and nonviolence is the more excellent way. Now it is your turn to let freedom ring.

When historians pick up their pens to write the story of the 21st century, let them say that it was your generation who laid down the heavy burdens of hate at last and that peace finally triumphed over violence, aggression and war. So I say to you, walk with the wind, brothers and sisters, and let the spirit of peace and the power of everlasting love be your guide.

John Lewis, Together, You Can Redeem the Soul of Our Nation, Washington Post, July 30, 2020

Let’s bring change to this land and cleanse it from this scourge on November 3.

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.

The New Salem

Many years after writing his play The Crucible, Arthur Miller reflected in the New Yorker:

In any play, however trivial, there has to be a still point of moral reference against which to gauge the action. In our lives, in the late nineteen-forties and early nineteen-fifties, no such point existed anymore. The left could not look straight at the Soviet Union’s abrogations of human rights. The anti-Communist liberals could not acknowledge the violations of those rights by congressional committees. The far right, meanwhile, was licking up all the cream. The days of “J’accuse” were gone, for anyone needs to feel right to declare someone else wrong. Gradually, all the old political and moral reality had melted like a Dali watch. Nobody but a fanatic, it seemed, could really say all that he believed.. . .

In those years, our thought processes were becoming so magical, so paranoid, that to imagine writing a play about this environment was like trying to pick one’s teeth with a ball of wool: I lacked the tools to illuminate miasma. Yet I kept being drawn back to it.

I came back to Miller’s commentary after reading Tre Johnson’s commentary in today’s Washington Post:

“Once again, as the latest racial travesty pierces our collective consciousness, I watch many of my white friends and acquaintances perform the same pieties they played out after Trayvon, Eric, Sandra, Korryn, Botham, Breonna. They are savvy, practiced consumers of Meaningful Things: They’ve listened to “Serial” and become expert critics of our broken criminal justice system after just one season. They’ve watched “Insecure” and can suddenly imagine life as Molly or Issa. They’ve shared the preordained “amplifying” social media post that just reads “This,” followed by a link to something profound from a black voice.. . .

“The confusing, perhaps contradictory advice on what white people should do probably feels maddening. To be told to step up, no step back, read, no listen, protest, don’t protest, check on black friends, leave us alone, ask for help or do the work — it probably feels contradictory at times. And yet, you’ll figure it out. Black people have been similarly exhausted making the case for jobs, freedom, happiness, justice, equality and the like. It’s made us dizzy, but we’ve managed to find the means to walk straight.”

Johnson, of course, falls into the trap that everyone else has fallen into, but at least he sees the trap. The combined effect of COVID-19 “content” (what an odious word) and, once more, the merry-go-round of commentaries on yet another horrific racial tragedy, have filled the social media universe with exhortations: Stay the fuck at home! Check your privilege! Wear your mask! Look within yourself! Be a good ally! Educate yourself! Flatten the curve! Dismantle white supremacy! The electronic town square holds trials for the Karens and Beckys of our time, which, given the centuries-old racist marinade we have been submerged in, are never in short supply. Everyone has an opinion about those (me included.) Everyone has an opinion about someone else’s opinion (me included.) Lists upon lists crop up in our social media feeds: Rating activities as to how safe they are (followed by the obligatory argument that the writer refrains from all of them, out of an abundance of caution); do’s-and-don’t’s for protesting “properly” are modified. Well-meaning people sincerely ask whether their white children may raise a fist on TikTok and receive fifty replies, all different. The actual issues are buried under edifices upon edifices of performance, performance, performance. Meta conversations about performance are rabbit holes. Every day some celebrity or other wears something or says something or performs some physical gesture, providing more grist for the mill. Every horrific incident of violence, racism, or racial distress, every photograph of someone out of compliance with the pandemic mandate-de-jour, becomes a morality tale, fueling endless takes, opinions, and new lists of instructions. Pandemic prevention enforcement and “how to be a good ally” have linked hands and are now the new religion of social media. We are in a panopticon, but the Foucaultian roles are reversed: we sit in the watchtower in the middle, and all around us are bloviating pulpits.

(I realize this post is falling into the same trap of exhortation, but this underscores my point–there is no end to a sea of pointing fingers. It’s turtles all the way down.)

If we were half as busy actually doing world improving things as we are performing our goodness in the public square and moralizing others, we might be in a different place. But public image is everything, and “content” (there it comes again!) must be provided. Citizens United has come full circle: now that corporations can speak like people, people speak like corporations. Everyone is a public entity, and so everyone has to issue on-point “messaging” to the public. Jeff Skilling’s infamous statement, “I am Enron,” is now true for everyone. Performance comes before feeling or doing. We must be on brand.

The problem is that “the personal is political” works both ways. It is one hundred percent true that we all play a role not only in pandemic spread, but also in the perpetuation of white supremacy. It is one hundred percent true that every revolution starts with individuals, and that individuals have the power to change the world–especially when organized. But these truths obscure other truths. “Flatten the curve” and “dismantle white supremacy” are big, pompous, vague goals, and in the absence of responsible adults at the helm of the country, there are bound to be differences in how we, the people, parse them into everyday behaviors. We’ve missed the train on testing and contact tracing, and now we’re left to pick at each other for mask violations.

The incessant chatter, be it contrite, derogatory, or both, is not “doing the work” that we are told to do. It is performing the work, which is something else entirely. It is exhorting others to perform the work. All the world’s a stage, and on this particular stage, we are performing The Crucible 24/7. There’s no escape from watching, from participating, from fretting about participating lest our flawed goodness be exposed.

I deeply understand where the urge is coming from. There are good intentions. There is a desperate need to do something in a situation in which we feel particularly powerless; we are sheltering at home, our face-to-face meeting places are closed, this online discourse is a poor substitute to our in-person conversations. As more and more avenues to do good close, either because they are impossible or because they are severely criticized, we are clutching at straws. These bursts of personal propaganda are the best thing we have, and we figure they are better than nothing, because silence is also a problem. And most importantly, there is pain. Searing, unbearable pain and grief. Grief for the sick, grief for the dying, grief for the people being killed and injured and ostracized and ignored. Grief and guilt. It feels overwhelming to sit with it. We take to our keyboards to find some relief, to tell some story about it, to remove the center of grief from our hearts to our heads to our keyboard. But verbose descriptions of grief are not the grief itself.

Can we take an intermission? Not from the work itself–improving the world is the project of a lifetime–but from the performance of it? Can we stop obsessing about our goodness and the goodness of others? Can we stop “messaging” so that we can actually feel something? Can we quiet our nimbly typing fingers to listen to the cries of the world, of friends and neighbors born to disadvantage, of our dying planet? Can we quiet them long enough to hear our own hearts quiver in compassion?