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.