#SmithfieldTrial: The Most Absurd Miscarriage of Justice You’ve Never Heard Of

St. George Utah

The first thing you notice upon waking up in Saint George, Utah, is the breathtaking, majestic beauty of the mountains. The striking nearby towering rocks, a bright red against the blue sky, are echoed in the grandeur of the far away mountains in shades of gray and blue. Let your gaze drop a bit and you’ll contrast this dramatic natural scenery with the ugly sprawl of an extensive strip mall, festooned with motels, cheap restaurants, and highways. But much of the town is a celebration of beauty, starting with its most visible landmark. Established by Mormons who fled Vermont and then Illinois, the town was divided into lots, which were raffled between the pioneer cotton-growing families. Brigham Young, whose winter residence is open for public touring, dreamed up the big temple, which gleams in its colossal whiteness, along with its steeple, in the middle of town. Elder Edwards, who leads the tour, tells us that Young was unhappy with the original, shorter steeple; After his death, lightning struck the offending steeple, which persuaded the townspeople that Young was speaking to them from the next world, and they built one of more impressive stature.

Mormon Temple in St. George, Utah

The town nowadays is a mix of Mormon heritage, a faith still practiced by much of the population and ever-present in landmarks and street names; college professors and students from Utah Tech and Dixie University, among other institutions; artists, who are responsible for the many works of public art decorating the town’s many squares and traffic circles; and endurance athletes running and cycling along the mountainous trails. There is a phenomenal independent bookstore, an old-fashioned barbershop, a historical theatre showing international horror films, and a vegan restaurant, Gaia’s Garden Café, which whips up delicious rice bowls and exquisite matcha lattes.

In the center of town stands the Fifth District Courthouse, where my friends, Wayne Hsiung and Paul Picklesimer, stood trial this week for burglary and theft. The facts? Wayne and Paul, along with two others who pleaded out, entered a pig factory farm in Beaver County, Utah, operated by Smithfield Foods, and rescued two dying piglets, Lily and Lizzie.

Smithfield

Smithfield, a major supplier of pig meat to Whole Foods, Costco, and other large retailers, claims to raise the pigs “humanely”, but the truth is very different. The footage obtained by Wayne, Paul, Andrew, and Jon shows what actually happens inside the facility (which is now owned by a Chinese company).

“Operation Deathstar”, featuring footage capture by DxE activists.

The two piglets the activists removed from the facility, Lily and Lizzie, were nearly dying, suffering from a variety of ailments. Importantly, Smithfield had falsely declared that it ceased its use of gestation crates (confinement cages for mother pigs that do not leave them any room to move), and the investigation exposed that these were still in use.

Smithfield was extremely invested in its good name, which allowed it to market its pig meat as “humanely raised.” Exposing the truth would have adverse consequences for the company. And so began an investigation by the FBI, which would not only involve spending my tax money and yours on an extensive hunt for the piglets by a “six-car armada of FBI agents in bulletproof vests”, but also hurting the pigs and traumatizing sanctuary employees. Glenn Greenwald, who covered the story for the Intercept, wrote:

The attachments to the search warrants specified that the FBI agents could take “DNA samples (blood, hair follicles or ear clippings) to be seized from swine with the following characteristics: I. Pink/white coloring; II. Docked tails; III. Approximately 5 to 9 months in age; IV. Any swine with a hole in right ear.”

The FBI agents searched the premises of both shelters. They demanded DNA samples of two piglets they said were named Lucy and Ethel, in order to determine whether they were the two ailing piglets who had been rescued weeks earlier from Smithfield.

A representative of Luvin Arms, who insisted on anonymity due to fear of the pending criminal investigation, described the events. The FBI agents ordered staff and volunteers to stay away from the animals and then approached the piglets. To obtain the DNA samples, the state veterinarians accompanying the FBI used a snare to pressurize the piglet’s snout, thus immobilizing her in pain and fear, and then cut off close to two inches of the piglet’s ear.

The piglet’s pain was so severe, and her screams so piercing, that the sanctuary’s staff members screamed and cried. Even the FBI agents were so sufficiently disturbed by the resulting trauma, that they directed the veterinarians not to subject the second piglet to the procedure. The sanctuary representative recounted that the piglet who had part of her ear removed spent weeks depressed and scared, barely moving or eating, and still has not fully recovered. The FBI “receipt” given to the sanctuaries shows they took DNA samples “from swine.”

Several volunteers at one of the raided animal shelters said they were followed back to their homes by FBI agents, who dramatically questioned them in front of family members and neighbors. And there is even reason to believe that the bureau has been surveilling the activists’ private communications regarding the rescue of this piglet duo.

Value of the pigs

Lest this suggest that the pigs were of immense value to Smithfield, between 15 and 20 percent of the piglets, who grow up sickly and starved in the factory conditions, are exterminated. And sometimes, this mass extermination take the form of mass suffocation, as another DxE investigation revealed in 2020. Matt Johnson, who uncovered this horrifying practice, was charged with a violation of Iowa’s ag-gag laws, but the charges against him were dropped. It’s worth reading Marina Bolotnikova’s Current Affairs story about Matt’s legal exploits.

Paul and Wayne were not so lucky, and the trial against them, with charges for agricultural burglary and theft, proceeded, animated by the interest of Utah’s state attorney, who receives campaign donations from Smithfield. On Wednesday night, I flew to Las Vegas and drove two hours into St. George, ready to testify on Wayne’s behalf.

I was not there as an expert witness, but rather as a character witness: I know, like, and respect Wayne, have collaborated with him on lawful campaigns such as the fur ban in San Francisco (which was successful and later expanded throughout California), have spoken on his podcast, and have invited him to my classroom to show the footage and speak with my students (many of whom considered his visit the highlight of the entire course.) Coming up with a witness list and crafting the legal arguments was complicated. Judge Wilcox, who presided over the trial, severely limited what would and would not be admitted. In a series of blog posts, and in a book chapter, I explained that the natural legal framework in open rescue cases was the necessity defense: a justification for breaking the law in order to prevent a worse evil from occurring where no legal options to prevent it exist. But arguing necessity would open the door to ample proof of this “worse evil”, including showing the footage of Smithfield’s barbaric practices, and that Judge Wilcox did not want to allow. So, Wayne and Paul would rely on other defenses: claim of right, lack of mens rea (no “intent to commit a felony within”), and a lack of value of the “property” in question. They would show the footage to illustrate that the piglets were worthless to Smithfield. Even so, Wayne, Paul, Paul’s Utah attorney Mary Corporon, and the small team of dedicated law students who supported them with research, would face a ferocious uphill battle in their efforts to introduce relevant evidence in the face of Judge Wilcox’s determination that this was “a burglary case” and he would not tolerate it becoming a political soapbox.

Because I gave testimony only on Friday, I was banned from watching the trial footage in advance. I say “trial footage” because Judge Wilcox, who described the activists as “criminals” and “vigilantes” severely curtailed access to the trial. The activists, many of whom flew or drove hundreds of miles to support the defendants, would not be allowed in the courtroom. Judge Wilcox allowed only five people in the court at the time, anonymized the jury and, at some point on Thursday, cut off the WebEx streaming of the case, launching into an angry tirade against “vigilantes” (there is no evidence of intimidation or, really, anything that was not peaceful, 100% legitimate protest). Moreover, the legal team, who operated from a nearby AirBnB, saw strangers in suits skulking around the bushes surrounding the property and removing their trash, and when they came out to speak to them, the strangers fled in a black van, saying something into a worn microphone, and falsely claimed to be the “owners” of the AirBnB. At least one side of the trial was determined to uphold due process, and I didn’t want to mingle with the activists who were watching the trial, so I spent hours on Thursday hiking the mountain ridge and visiting Pioneer Park, Red Cliffs Desert Garden, and several city landmarks, like the temple and Brigham Young’s home. I got to talk to a lot of kind and pleasant city residents, many of whom knew that the trial was taking place there (it landed there through a change of venue from Beaver County, where half the jury pool would be comprised of Smithfield employees.) Throughout it all, I wondered why this trial evoked such panic or, more accurately, why the panic was so painfully misdirected at those who exposed the horrific cruelty rather than those who perpetuated it.

The answer I came up with, which I later saw play out again and again throughout the trial, was this: There is nothing more threatening to a human being than raising even the remote possibility that one is not a good person. People will go to incredible lengths of self deception, cognitive contortion, and actions in the world, to avoid confronting even the remotest possibility of a blemish on the goodness that is such an inexorable part of their self identity. This is true for all those who consume Smithfield’s products, or, really, any other animal products, and try to avoid any footage that might show them that they are complicit in something horrible. This is also true for all those who protect these abominable secrets–law enforcement agents, prosecutors, judges–who so desperately want to cling to the belief that they are the good guys and on the right side of this that they flout due process, the constitutional public trial clause, the jury trial rights, and pretty much any other constitutional protection the defense has.

Fifth District Courthous

The panicked blockade of transparency was evident throughout the trial (as I’m now piecing together from what I saw with my own eyes, my conversations with the legal team and the journalists, and the WebEx footage and twitter stream I followed after I got off the stand.) During voir dire, one prospective juror said he knew what jury nullification (the power of the jury to decide a case according to their moral convictions, rather than the law and the evidence) was. The judge struck him, saying that he wanted to “save a peremptory challenge for the prosecution.” This strikes me as outrageous, even against the backdrop of hostility to nullification in criminal courts. Judges admonish juries that they must decide the case according to the law and the evidence, and, as explained in this useful and well-written piece by Jordan Paul, “deliberately conceal [nullification power] by scrubbing references to nullification from the entire process.” In United States v. Kleinman, a Ninth Circuit case, the Court held that a jury instruction “severely admonishing” against nullification was unconstitutional, but that the resulting error was harmless. But the fact that nullification exists and is lawful is a matter of general knowledge, so it seems that Judge Wilcox overstepped the constitutional line here.

It would not be the last time. The most ferocious battles in court were fought over the extent to which the very limited allowable defense scope (what with necessity and, subsequently, claim of right off the table) required showing the jury footage from Smithfield. The entire field of evidence law deals with the balance between admitting evidence with probative value and suppressing evidence that is prejudicial. The kicker, of course, is that what makes a good piece of evidence probative is also what makes it prejudicial–namely, that it evokes a strong response. This kind of strong response might suggest that there is something awry at Smithfield and, by extension, that consuming their pork was not a good thing to do, so Judge Wilcox would not allow it. Many of the films were censored and limited to still images. In a more reasonable decision, the judge cut off the sound of the video, to exclude Wayne’s narration of what he was seeing inside the facility. but with the effect of silencing the agonized screams of the pigs. Nevertheless, some footage would have to be allowed, because of its direct import to the questions of mens rea and value. To commit agricultural burglary in Utah, one must have a specific intent to remove property: Wayne and Paul argued that their intent was to document conditions on the ground, and that the removal of the pigs was for the purpose of saving them. As to value, Wayne and Paul argued that the pigs, deathly ill from deprivation, a foot injury, and an inability to nurse, were of no value to Smithfield, undermining the definition of “property” in Utah’s theft statute.

Some of the ensuing battles over evidence are described in this informative KSL piece by Emily Ashcraft:

The jury trial for Hsiung and Picklesimer stretched throughout the week, and was filled with objections from the attorneys in an attempt to keep the trial within the parameters set by the judge. Mary Corporon, who represents Picklesimer, and Hsiung, representing himself, would argue that certain steps taken by the state should allow them to bring in more information about the farm conditions, including showing the video.

Janise Macanas and Von Christiansen, Beaver County attorneys, objected when a witness started talking about other conditions, specifically about a dumpster on the farm with dead piglets inside or the mother pig’s health.

Testimony was offered by veterinarians chosen by both sides, an investigator, a Smithfield employee and a man who was part of the same undercover operation of the farm in 2017.

After all of the testimony in the case had been offered, the judge issued a directed verdict dismissing the first count against both Picklesimer and Hsiung. Corporon argued that each of the burglary counts was specific to a building, and that the two defendants did not expect to see piglets in a gestation barn — meaning they would not have been entering the barn with an intent to steal.

There was also a discussion about a possible mistrial. Hsiung and Corporon argued that the prosecution asking a state veterinarian about care for the pigs at the farm opened the door for them to bring in new evidence about the conditions of the farm. The prosecutor said that was simply an effort to show that the two specific piglets would have had a chance of receiving medical care that next day.

The judge said bringing in that much new evidence at the end of the day on the last day of trial was not an option.

“I’m not going to open up testimony again in this case, and if we need a mistrial, we’ll have one,” Wilcox said.

Ultimately, Corporon and Hsiung decided to continue with the trial, after the state’s attorneys agreed with asking the jury to not take into account that testimony.

On Thursday, Hsiung called himself to the witness stand, asking himself questions and then opening himself up to questions from the other attorneys. While questioning himself, he admitted to taking the piglets, but said it was not theft because he took piglets that were of no value to Smithfield.

Hsiung said the case is not about burglary and theft but about animal cruelty and animal rescue. The two piglets were given names after they were taken from the facility, Lilly and Lizzie, and he spoke about their conditions.

Although he said they did not intend to take piglets, during his testimony he admitted they had a veterinarian on hand in case they brought out animals and that they had evidence that there were animals dying on the farm. Hsiung said they had taken animals in the past during similar operations, sometimes with the owner’s permission.

He argued that he had a belief that the piglets were abandoned property, and prompted witnesses to testify that the piglets were more of a liability to Smithfield and he may have been helping them by removing the piglets from the property. Ultimately, though, he said the purpose was to save the piglets from “certain death.”

“We were not there to be burglars or thieves,” Hsiung told the jury. “We were there just to give aid to dying animals.”

I witnessed the judge’s wrestling with the factory farm content firsthand. Under direct examination, I spoke about how Wayne and I met and about some of the animal rights advocacy we had done together. When asked to give examples of Wayne’s honesty and integrity, I started explaining how open rescue works–that open rescuers keep their faces revealed and their identities known and take responsibility for what they’ve done even when it means facing scary consequences. Just as I started speaking, Janise Macanas objected, the judge (who seems to have been a bit taken aback by fancy professors siding with the defendants) put the kibosh on the rest of my testimony, and that was that.

Here’s what I would have said, if I were allowed to speak: Wayne’s honesty and integrity are obvious to anyone who meets him. His willingness not only to face incarceration in Utah, but possibly to lose his license to practice law in California (a previous attempt to disbar him for saving animals failed), is admirable. Every social movement that tries to improve the world must encompass lots of different people: the food engineers and companies that bring us Beyond Burgers, the chefs and bloggers who bring us wonderful vegan recipes, the mainstream advocacy groups that seek legal change, the law clinics and nonprofits, and yes, the people who are willing, at great expense and sacrifice, to actually risk going into these horrendous facilities and tell us how our food is being made. These folks provide an invaluable service to the movement, which should embrace them rather than distancing itself from them. It’s crystal clear who the good guys and who the bad guys are in this case. And intelligent, curious people should be very suspicious when someone is trying to keep important information from them.

The mistrial issue was quite heartwrenching to experience. Dr. Sherstin Rosenberg, the veterinarian at Happy Hen sanctuary, testified about the condition of the piglets, discussing their inability to nurse and their injuries. Not content with this, the prosecution put Dr. Dean Taylor, the state veterinarian, on the stand as a rebuttal witness. But it turned out, during Dr. Taylor’s evidence, that Smithfield employed a grand total of two veterinarians for more than a million pigs. Later rebuttal testimony from a Smithfield employee, which confirmed this, led to a flood of questions from the jury about the medical condition of pigs at Smithfield (to the point that I wondered how many of the jurors would eschew pork, or become vegan altogether, after this trial). Judge Wilcox was visibly despaired by all this. He had tried so hard to rein in the trial and avoid discussing the real issues, but, despite his best efforts, the animal cruelty stuff slipped from under him and occupied front and center at the trial. In desperation, he proposed holding a mistrial. I thought this would be a fantastic end to the whole thing. My hope (perhaps misguided?) was that the state of Utah would realize that they should stop throwing good taxpayer money after bad, and refrain from reprosecuting–particularly in Paul’s case. I also hoped (perhaps against hope?) that, after declaring a mistrial, Judge Wilcox would pick up the phone, call the state attorney, and tell him that reprosecution was not worth it. But Wayne and Paul decided to proceed forward with the trial. The unsatisfying compromise was that Judge Wilcox instructed the jury to ignore the rebuttal testimony from the veterinarian and the Smithfield employee.

What happened at closing arguments is aptly described in the KSL article:

On Friday evening, Christiansen claimed Hsiung admitted to taking the animal, but attempted to minimize his crime with contradictory testimony. He said Hsiung testified that he didn’t intend to take a pig, but in the script of the video shared at trial, Hsiung said, “If we see an animal we can take out, we’ll take them out.”

He talked about how Hsuing and the rest of the group went into the facility on March 6 and March 7, but did not take any animals on March 6. Christiansen said this shows they were not just taking piglets that needed emergency care but were taking pigs as part of a publicity move.

“The pigs were just props in a video, props in a movie,” Christiansen said.

He said the animals were alive and did have value, and any evidence of poor health displayed at trial is speculation.

Christiansen also talked about the charges for Picklesimer, and said holding the camera was a very important role in the burglary, allowing Direct Action Everywhere to produce a video and raise donations.

“Every person that participated in the burglary that night was part of the crime,” the prosecutor said.

Picklesimer’s attorney, however, said he did not even touch a pig, and did not intend to commit a theft and should not be held accountable for something he didn’t do.

She told the jury if they do believe Picklesimer might be guilty based on being part of the group, the should directly consider the worth of the piglets to Smithfield.

“Bottom line these piglets are worth nothing, it’s a net negative,” Corporon said.

She said what Picklesimer did was like standing next to someone else who was emptying a trash can.

Hsiung presented his arguments last, making a plea to the jury to consider their feelings and recognize a difference between stealing an animal and helping an animal.

“We did not intend to take a piglet out who had anything of value for Smithfield,” Hsiung said, arguing that these two piglets did not have any commercial value.

He told the jury he did not want to be acquitted based on a technicality, but hoped they would make a ruling that would make a difference to animal rights.

“If you defend our right to give aid to dying animals, defend the right of all citizens to aid dying and sick and injured animals, there’s somethings that will happen in this world. Companies will be a little more compassionate to the creatures under their stewardship. Governments will be a little more open to animal cruelty complaints. And maybe, just maybe, a baby pig like Lilly won’t have to starve to death on the floor of a factory farm,” Hsiung said.

He argued that theft and burglary are not the right way to charge him in this case, and suggested different steps should be taken to address actions like this, including companies and governments listening to their suggestions or charges for trespassing.

I’m now back at home, processing what I saw and heard at the trial, as the jury in St. George is deliberating the verdict. I very much hope that the little exposure they received to the horrendous evil that is factory farming will persuade them of the negligible value this “property” has for its “owners”. I only wish they could see the piglets now. One member of the legal team, who lives in Colorado, gets to visit with the pigs once ever few weeks, and reports that they are lovely and doing very well. I also hope Wayne and Paul made the right call. We had some conversations about whether going with the mistrial was “good for the movement” or not; both parties made numerous mistakes, as is inevitable in the course of a complicated trial, and those would not be repeated in the second trial. But a well educated, curious jury is also something that is difficult to give up. Having done my very small part in this case, I’m keeping my fingers crossed for the right outcome. If you want more coverage, following @SmithfieldTrial on twitter, as well as journalist Marina Bolotnikova and activist Jeremy Beckham, will be useful, or use the hashtag #SmithfieldTrial.

Love Makes a Family: Does Reproductive Justice Include Only Biological Reproduction?

Recently I listened to Chen Zausmer’s fascinating podcast “What Are You Waiting For?”, which documents her egg-freezing journey. The podcast is moving, disquieting, and extremely well done, documenting Zausmer’s emotional process as well as the physical and financial practicalities of the procedure. Among the things that make this a worthwhile listen are the embedded recordings of personal conversations between Zausmer and her friends and family, in which they raise uncomfortable, emotionally loaded subjects such as “giving up” on couplehood and a two-parent framework, questions on reproductivity and self worth, womanhood and femininity, and other complicated, soul-searching issues. It is also an admirable example of honestly and vulnerably offering a meditation on subjects that can be, and are, deeply private issues for wide public consumption.

When someone does make the choice to make their very private affairs public in this form (the podcast is accessible on Spotify, Apple Podcasts, and pretty much anywhere else podcasts can be found), though, the audience’s thoughts about it are not merely nosy/judgmental commentary on another private person’s journey. Each of us consumes art and media through personal eyes. And, in my case, that meant listening to four lengthy episodes detailing a plethora of emotional, physical, and financial trials and tribulations focused on a very particular biological choice, without even a brief mention, a suggestion, or a whiff of possibility, around nonbiological parenting through fostering and adoption. And as an adoptive mom, this was crazymaking.

This is not a personal critique of Zausmer’s options–she is, of course, free to do as she wishes with her body, soul, and financial resources–and for what it’s worth, she comes off as a thoughtful person who engages in unflinching self-inquiry, which is admirable. But those who don’t want their deepest personal struggles to evoke a range of emotions, thoughts, and reactions, seldom make podcasts out of them, so I’m offering some thoughts in that spirit.

As in the pro-choice/pro-life debacle, becoming a mom through adoption has gifted me with a more nuanced perspective that untethers parenting from biology, which I elaborated on elsewhere (here and here.) I always feel like these perspectives are left unexamined because of the strong bias in favor of biological parenting. The conversations about reproductive justice that I’ve been privy to not only prioritize biology but actively push any notions of nonbiological parenting out of the conversation. For a number of years I’ve been surrounded by people, some of them close friends, who have gone through numerous circles of IVF hell, back-and-forth with surrogates and the adjacent ethical issues, and the deep tragedies of miscarriages and losses. And yet, suggesting adoption or fostering to people who are undertaking unbearable physical, emotional, and financial difficulties in their torturous journey to become biological parents is considered terribly rude, and the social consensus is that people’s willingness to jump through absurdly challenging hoops to ensure that they go through pregnancy/birth, or even just that their genetics are passed on, should be unquestionable accepted, without opening other doors and possibilities.

I remember noticing this when I attended an event celebrating Dov Fox’s new book Birth Rights and Wrongs. To his great credit, Fox provides a thorough and thoughtful overview of the myriad problems caused by reproductive technologies, including unreported medical conditions of sperm donors. The book’s agenda, however, is clearly to empower parents to address these serious technological and medical challenges through lawsuits in torts. One walks away with the sense that any procedure for procuring biological children–as complicated, experimental, expensive, and taxing as it might be–should be the unshakable right of any prospective parent, complete with the legal power to sue at every wrinkle at which something goes wrong. Expanding these litigation rights is a tacit expression of the law’s preference for, and encouragement of, biological reproduction.

This may be outside the cultural/biological/social norm, but I know I’m far from the only one: I have never wanted to get pregnant or to give birth, and at the same time I am thrilled to be a mom and my son is the light of my life. I accept that many, perhaps most, women do want to experience pregnancy/birth. But it is hard for me to responsibly participate in conversations with people who are experiencing horrific suffering and sorrows through their pursuit of biological parenting at all costs, and are completely unwilling to even consider other paths to parenting. Because we are very open about our adoptive journey, over the years I’ve happily had several lengthy conversations with friends and acquaintances who, throughout this journey started “despairing” and “thinking about adoption”–as if it’s a secondary choice to biological reproduction, only to be pursued if the “normal” path has failed, because multiple IVF rounds involving extensive travel and six-figure-dollar amounts is apparently more “normal” than offering a home to a newborn that also saves the life of young people saddled with an unwanted pregnancy. Afterwards, sometimes I get a phone call saying that they discussed it amongst themselves and at least one of them was adamant that what they really wanted was “a child of our own.” Get it? A child of our own–as if your kids through adoption or fostering are not really “your own”, or it’s some testament of your inferiority that you chose nonbiological parenting. I always want to ask: Why is it so important for you to propagate your specific genes, and how are they uniquely better or more important to propagate than those of other members of the human population? It’s especially jarring when, in opposite-sex couples, virtually all of the physical suffering is endured by the woman, and it’s the man who clings to the genetic imperative at the price of his partner’s health and wellbeing. Can I say something about this, compassionately and gently? Of course not! It’s none of my business, and there’s such a taboo against suggesting this even in the most compassionate way–and I submit the taboo exists because we harbor a deep bias against nonbiological parenting.

But this is not just an issue of people’s personal choices, for whom I have all the compassion in the world (another person’s suffering is 100% understandable and relatable, and gets 100% support and love from me, even if I’m not on board with the cause of the suffering.) It raises serious questions for all of us as a community. Societies that do not fully support solid, comprehensive sex education, keep young people ignorant of their bodily functions, allow young men to walk away from the consequences of their sexual activity, sticking young women with the agonizing expectation that they carry unwanted pregnancies to term, are societies that produce babies born into untenable situations who need stable, solid, loving homes. And such societies should do everything in their power to guarantee a good starting point for all these babies–starting with completely destigmatizing, and even encouraging all forms of nonbiological parenting, through resources, education, and unwavering social support. Investing enormous amounts of medical progress, public funding, and unquestioning social validation in biological procreation for the wealthy at all costs has a price, and that price is delegitimizing and neglecting fostering and adoption. And in the current political climate, this does not strike me only as precious and capricious, from a governmental perspective, but also as morally untenable.

My great aunt Carmella had a beautiful child-free life: she had her own business and traveled around the world with a lovely and similarly adventurous husband. They worked hard and arrived at a place of wealth and financial comfort. And yet she was deeply unhappy throughout it all. One of the main reasons: She desperately wanted to be a mother, bitterly envied her siblings (including my grandma) who had kids, and this filled her with frustration and contempt. Toward the end of her life, which she spent giving backhanded compliments and insulting family members, my mom called her to let her know that we had a son, and shared briefly about the adoption. There was a long silence on the other end of the line, and then Carmella, who was never at loss of words, said quietly, in a little girl’s voice: “Hadar is very wise.” When my mom shared this with me, my heart broke for Carmella and for the decades of joy and fulfillment she robbed herself of by not even considering fostering and/or adoption.

If you are reading this, no matter where you are in thinking about parenthood, what I most desire for you is to be happy. And what is most important to let you know is that there are many ways for you to find happiness. You can, and definitely should, consider the many possibilities of becoming parents through both biological and nonbiological means. You can, and definitely should, consider the very legitimate possibility of living a wonderful life full of meaning and fulfillment as a non-parent (with or without children in your life in one form or another.) A lot of the suffering we undergo in life when we choose a certain path comes from the stubborn (and incorrect) belief that it is the only viable path to our destination. I don’t want this for you–I want to you to offer yourself more freedom, and this freedom starts in your own mind, outside the socio-cultural expectations, pressures, or inducements. I’m sending you good wishes on this journey.

My Chesa Recall Punditry: The View from Bayview-Hunter’s Point

Last night provided me a unique vantage point on the Boudin recall effort: I was an inspector at a polling station in Bayview-Hunter’s Point, which is a neighborhood with a long history of neglect and criminalization. It is also unique in its demographics: 33.7% African American in a city that is just under 6% African American as a whole. There were approximately 650 registered voters in our precinct. 18 voted by mail and 17 voted in person, for a grand total of 35 voters. That’s 5% of the electorate. Things were somewhat better, but not by much, elsewhere in the city. By stark contrast to the 2020 Presidential election, pre-election mail-in voting in this local election–the third in 2022!–was very low. Our Federal Election Deputy (FED), who came to visit us throughout the day, reported that the polls were quiet and dormant throughout the whole day, pretty much everywhere.

Why does this matter? Take a look at a map published in today’s Chron of the neighborhoods that voted against Boudin:

At first glance, the story appears to be that neighborhoods associated with Asian-American populations tended to support the recall more fervently. This is unsurprising, and only talked about in hushed tones even though I think it is a big part of the story. In the last few weeks I saw concerted, fervent activism in support of the recall from very similar crowds to the ones who drove the SFUSD recall from a few months ago: it’s not all about out-of-town Republican millionaires conning unsuspecting masses into false consciousness. These are pretty much the same parents who resented the performative woketalk from the Board about school renaming and lottery admissions to Lowell. I suspect that some residual energy poured over from the previous recall (which I think was 100% justified) to this one (which I think was not.) The superficial narrative might be that a permissive and forgiving attitude toward prosecuting some people (read: presumably, young African American men) incentivizes crime and victimization (read: toward, presumably, Asian American victims) in the same way that lowering standards and talking about reparations and abolitionism (read: a narrative that supports, presumably, a monolithic African American interest) harms the pursuit of hard work and excellence in education (read: the purview, presumably, of Asian American students and parents.)

This story, which suggests the fomenting of racial animus between these two groups, building on the racial conflict undertones of the previous recall, is not completely preposterous. Most of the people who came to vote in person yesterday at our precinct were African American, and from their conversations, I gathered they all came motivated to vote against the recall. But this assumes that we can understand and generalize trends from a pretty minuscule percentage of San Franciscans. It’s not that the people who live in my beautiful city don’t care about criminal justice administration. NextDoor and other social media outlets are full of people chewing each other’s heads off about whether this or that wave of smash-and-grab, retail theft, or other incident is Chesa’s fault. But how many people care enough about this to put work into reading a hefty booklet and considering their positions on a three-page ballot, in which Prop H was the very last voting issue on the back side of the third page, for the third time in a row in the same year?

Over the years, I’ve returned again and again to Vanessa Barker’s excellent book The Politics of Imprisonment. Barker conducts a three-way comparison of penal politics in three states: California, Washington, and New York, finding that California’s political culture more easily lends itself to punitive experiments because of its polarization and populism. I write about this culture in Yesterday’s Monsters, when I show how politicized and emotion-driven the issue of parole is. In this kind of political environment, where money and strong interests can push something into the ballot as well as foment a well-oiled promotion machine (complete with all the tricks and deceptions we’ve come to expect from the initiative process), it is not difficult to swing the pendulum back and forth, from big reforms to big cancellations, from experiments in jurisdictional shifts to draconian policies masquerading as victim’s rights policies, and everything in between.

Ultimately, I think that what we saw here was just an exercise in manipulating this big machine and effectuating huge change through a relatively small number of voters. Direct democracy can be, and is, too direct when it imposes this burden thrice a year on already exhausted, grieving, anguished, and ticked off people with an empathy deficit from three years of awfulness that followed four years of a different kind of awfulness. In sum, whether or not the small minority who bothered to show up at the polls has false or true consciousness matters much less, sadly, than the forces exploiting the initiative process far beyond the Bay Area.

Would it have made a difference if the entire Bayview-Hunter’s Point electorate showed up en masse and voted against this recall? Of course it would. But after everything we’ve all been through–the impoverished folks in the neglected parts of town disproportionately suffering–we just didn’t have it in us to make yesterday a proud, sparkling moment for people-powered government, and even though it’s not our fault, we will all have to live with the consequences. Increased incarceration and the return of cash bail will not deter violent crime (but people’s attention will wander, and those who supported the recall will stop paying attention). Crime might go up (despite the recall, the supporters will say, or because of the recall, the opponents will say) or it might go down (because of the recall, supporters will say, or despite it, opponents will say) and we will continue to delude ourselves that dumbing down complicated policy decisions, deceiving people with oversimplified campaigns, and seasoning everything with some piquant interracial conflict, is how democracy should work.

The truth is that crime rates are like the weather. They rise and fall for a variety of reasons, only a few of which we can measure, and most of which have nothing to do with who is in charge. They have very little to do with big punishment trends (though, in localized situations, they do depend on effective police work in solving crime, which is a damn difficult thing to do when the community doesn’t trust the police enough to help.) It takes a real sea change in policy to effectuate changes in criminality patterns. But our megalomanic assumption that we can control crime rates through tinkering with policies will persist, and we will keep tinkering, until no one has any energy left to vote.

I offered a few more thoughts on KCRW here.

Urban Alchemy in the News

SF-based nonprofit Urban Alchemy, which I discussed here and here, is in the news this week. First, there was BBC coverage, and this morning a lengthy investigative story in the Chron. Mallory Moench and Kevin Fagan’s story is interesting and informative, and offers lots of useful perspectives, but does adopt an unnecessarily skeptical emphasis and tone, which rankled me because I work in the Tenderloin and see the transformation it has undergone through Urban Alchemy’s intervention.

In the early pandemic months, the open drug market around my workplace was so brazen and violent that my students feared going out of their dorm rooms at the Hastings towers. Mayor Breed and SFPD tried to resolve the problem by doing police sweeps of the area, which only resulted in new people coming in to deal and shoot every day. At some point I was contacted by a civil rights org, which shall remain anonymous out of compassion, with a well meant, but absurd, invitation to support their lawsuit against gang injunctions with an amicus brief refuting the existence of the drug market. Refuting? I thought. Are you kidding me? Do you have eyes? Do you live or work here? It was a prime example of what I’ve come to recoil from: the refusal, by some quarters of the Bay Area’s delusional left, to concede that crime is real and has real victims and real implications (that’s why I have no patience for armchair abolitionism, by the way.)

Then, our Dean signed a contract with Urban Alchemy, which has them support the area adjacent to the school. This proved to be a complete game changer. The first morning I showed up to work with the UA practitioners surrounding the perimeter of the school I was amazed; the change in energy, the peacefulness, the friendliness, the sense of personal safety, were palpable. I started chatting with some of the practitioners around my workplace, who came from backgrounds of serious incarceration, and found that their personal experiences provided them with just the right interpersonal skills to intervene in complicated situations in the Tenderloin. Finally, someone is doing the right thing, I thought. There are so many occupations in which a background of criminal invovement and incarceration is a priceless resource – and this includes lawyering. Recently, I interviewed people with criminal records who applied to the California bar and wrote:

In the few occasions in which bar membership with criminal records are discussed, it is not in the context of diversity, but rather in the context of a public concern about “crooks” in the legal profession. Accordingly, the bar orients its policies, including the recent requirement that current members undergo periodic fingerprinting, toward the exposure and weeding out of “crooks.” Criminal experiences are seen as a liability and a warning sign about the members’ character.

My interviewees’ interpretations were diametrically opposed to those of the bar. All of them, without exception, mentioned their experiences in the criminal justice system as catalysts for their decision to become lawyers, and most specifically to help disenfranchised population. Public interest lawyers who spoke to me cited their own criminal experience as an important empathy booster with their clients. Even some of the ethics attorneys cited their personal experiences with substance abuse as a bridge between them and clients with similar histories. By contrast, commercial lawyers, especially in big firms, remained circumspect about their history. Two lawyers spoke to me in the early morning hours, when they were alone in the office, and others spoke from home, citing concern about letting their colleagues know about their history. My conclusion from this was that the interviewees’ background was a rich resource that provided them with a unique and important insider perspective on the system, which remained unvalued and tagged as uniformly negative baggage.

To Moench and Fagan’s credit, their piece does represent this view; one of their interviewees explicitly says that looking at justice involvement as an asset, rather than a barrier, is revolutionary. But overall, their reporting exceedingly amplifies the voices of the naysayers above those of the many people who live and work in the Tenderloin who are quietly grateful for Urban Alchemy’s presence in the streets. You’ll be hard pressed to find detail in their story of the many good deeds that the practitioners perform daily, ranging from lives saved with Naloxone (several times a week, I’m told) to skillfully providing my female students a sense of personal safety when walking the Tenderloin in the evening. Several students described how a practitioner subtly positioned himself between them and someone who was getting too close, and how the threatening situation evaporated before it could evolve in unsavory directions. Moench and Fagan give this a passing nod, but their piece fails to properly capture the magic.

This brings me to another observation: There hasn’t yet been a project evaluation for Urban Alchemy’s Tenderloin intervention. Executing such a study would be a daunting task for several methodological reasons. First, there’s no comparative baseline for the intervention. The situation before their intervention was so abnormal that it would be hard to use it as a control, even if data were available. If the comparison is geographic, it would suffer from the usual problems with situational crime prevention: focusing an intervention in a particular geographical zone means that criminal activity is displaced onto adjacent zones, so the two comparators are not independent of each other. If the study is structured as an in-depth phenomenological project (which is what I would do if I were to do this–and a colleague and I are thinking about this), there’s the Star Trek problem of the Prime Directive: researchers or students hanging out in the Tenderloin to conduct observations would, themselves, change the dynamics in the area that they study. A big part of Urban Alchemy’s success lies in the fact that they do things differently than SFPD. They do not rely on surveillance cameras; in fact, they eschew them, and having any sort of documentation would be detrimental to their working model. And people standing in the corner for hours and taking notes would chill everyone’s behavior. Fieldwork here has to be conducted with care.

I have one more observation to offer: I now work in a service profession that requires crowd management and interpersonal intervention (as a city pool lifeguard) and also have multiple years of experience managing crowds in rowdy, inebriated, unusual situations (as a Dykes on Bikes registration volunteer at Pride and at Folsom Street Fair, for example.) The vast majority of people you encounter at these settings are lovely and a delight to be with. But the one or two percent who are decidedly not lovely can really test anyone’s self control. I’m talking about the driver who insists on driving the car into the area you’re trying to cordone off, the slow dude who insists on swimming in the lane with faster people and not letting them pass, or the people repeatedly told (politely) to move to the sidewalk so that they are not run over by trucks who don’t go where they’re told. My experiences are nothing compared to what the Urban Alchemy practitioners encounter every day on the Tenderloin streets. I really wish our reporting on this were sympathetic to the enormous challenges of interpersonal interactions in this very rough patch of our city and more appreciative of how much conflict and anxiety are spared when people who know what they’re doing take the lead.

Applying Lessons from Circle Swimming to Prison Advocacy

The number of letters, emails, calls, etc., I got after I published this was truly moving overwhelming. It looks like many advocates and activists share a sense of immense exhaustion and feeling unwell and many of us want to get better. For me, as you know, this journey includes total commitment to a whole-food, plant-based diet and to daily outdoor exercise: running, cycling, and swimming. The last of these is the only one at which I’m a veteran; before I semi-retired from the sport in 2016 I was an open water marathon swimmer. These days, for practical reasons (little boy and full-time job=> no time to schlep to the bay, acclimate, and then pour hot tea down my gullet to defrost myself) I swim for no longer than an hour in one of our city pools.

We don’t have many public pools; the ones we have are beautiful and the staff is great, but there is a serious nationwide lifeguard shortage. This means opening hours are extremely limited and the pools get crowded. It’s become rare to have only one person to split a lane with, let alone have the whole lane to yourself. At one of the pools I swim in, there are regularly at least five people to a lane. In the other it’s about three and four. Because these are strangers, not masters teammates, the lanes aren’t calibrated to people’s exact pace, and the fast/medium/slow lane categories are completely arbitrary. Bottom line – I regularly end up in a lane with people who swim either faster or slower than me. Many of the slower folks are delightful people who stop at the pool end to let you pass them, but unfortunately not everyone has the proprioception or the humility to do it. And so, sometimes I get stuck behind folks who really should know better and who make it impossible to pass them (I should say – because I know firsthand the aggravation this causes, when I swim with faster folks I’m hyperconscious of them and let them pass at every opportunity!).

I’ve narrowed the possible coping strategies to five, and some of them are better than others:

  1. Do nothing and fume. Or, do nothing and slap the water in rage, or kick a little extra hard to vent your frustration. This does not help – not at all – and essentially the only person I punish by marinating in my anger over this is myself.
  2. Appeal to higher authorities, namely, to the lifeguards and ask them to reorganize people by lane. This is kind of drastic – I’ve never done it myself nor have I seen it done in city pools. At some private clubs I’ve swum in, the lifeguards are experts on tactfully doing this, but it also carries the frustration of dealing with your problem through third parties rather than practically resolving it yourself.
  3. Change lanes mid-lap and swim back. Here’s how this works: You swim behind the slow person for as long as conceivably possible (to earn yourself some good laps later) and then, right before the wall, shift to the other lane and swim away fast. This obviates the need to confront the other person in any way, and if they are clueless it won’t upset them, either, but you could run into problems confusing the slow swimmer or other swimmers and, in some situations, could be a bit dangerous.
  4. Aggressive mid-lap pass. This is an emergency move, and an undesirable one, but sometimes people don’t leave you much choice. You carefully check if there’s anyone coming toward you in the opposite lane (i.e., that the other swimmers are already behind you) and them quickly shift to the left lane and beat the slow swimmer to the wall. Beyond the obvious risk, this is also a physically aggressive move and I would not be surprised if it upset and scare the slower swimmer.
  5. Confront the person at the wall, either through body language (touch their foot lightly, shift to the middle of the lane to block their turn) or actually say “can I pass?” I’ve never seen anyone manifestly refuse to let another person pass after a confrontation, but for a lot of people who look forward to their pool time as their happy place, it could be several laps before the work out the nerve to do it (now that I think about it, I bet there are cultural differences in pool behavior between different countries).

The wisdom we should all cultivate (I’m working on this myself, yo, so don’t think I’m anywhere close to circle swimming nirvana!) lies in deciding which of the five approaches is appropriate for each situation. For example, I think that option 1 is only good when you have a few minutes of cooldown before your workout is over, and then it’s best to channel your frustrations into working on your butterfly or backstroke or do a couple of leg laps without fins, which slows you down coming into the wall. Option 2 is only good when you’re at a pretty hierarchical or at a pretty expensive facility. As to options 3-5, their desirability depends on who you’re dealing with, and here it’s worth remembering that you don’t actually know the person from Adam, and that behind the cap and goggles, “slow-ass” might actually be a lovely person on whom you’re unfairly projecting the frustrations of your day. It’s quite possible to choose the wrong strategy and add unnecessary stress to what should be a blissful hour for everyone–which is where self-compassion and compassion for others comes in, bigtime.

I think about this stuff a lot when I’m in the water, and a couple of days ago, while discussing this with a friend, I realized that these ways of handling conflict with someone you don’t know have recurred elsewhere in my life, especially in the context of prison advocacy. As I work on our book in progress about COVID-19 in California prisons, I’m realizing that a lot of stuff has been happening, at the state and at the county levels, behind the scenes, and while we were privy to the horrific outcomes of all this through the information we got from our incarcerated friends and family members, we were not exactly privy to the inner workings at CDCR or at the Receiver’s office. We know that they paid no heed to the AMEND report, but did they consult with anyone else? It seemed not from the Quentin litigation, and it seems not from the Plata litigation, but surely not everyone who works there is pure, unadulterated evil, and we need better information about internal disputes and conflicts on how to manage this. We know, for example, that the rank-and-file physicians at Quentin were clamoring to save lives (I’ve spoken to prison workers and many of them are decent, conscientious folks who have had a horrific time for the last year and a half.) We also know that various county jail officials worked extremely hard to make vaccination available to their population (this I know firsthand because they consulted me, and they impressed me as being decent people who were well aware of their responsibilities.) I actually don’t know, and have no way of knowing, whether the top brass at CDCR, CCHCS, and CCPOA sleep well at night. And the problem is that the best approach to getting this pandemic under control as numbers in prison are beginning to rise again depends a great deal on understanding these people and where they come from, and on figuring out how to best work with them, around them, or against them.

Over the course of this struggle, I had some experience doing variations on all of these themes. The litigation, of course, is full of animosity; all the media work, especially the press conferences and the news editions, was also highly confrontational, on purpose. By contrast, I got to collaborate with Orange County officials on producing their vaccine advocacy video because there were people there who were trying, in good faith, to save lives, and it was worth working with them. And in introducing the AMEND FAQ into prisons and our videos recorded by formerly incarcerated folks, we sought to work around CDCR to raise vaccine literacy behind bars by providing sources that our friends and neighbors inside could completely trust–thus working around CDCR (and, to be honest, counting on smuggled cellphones to do the work.)

In order to draw more careful lessons about how I’m going to do advocacy in the future, I need more complete information on which of these strategies worked and which didn’t – and why. For now, I’m providing some help in the form of a wonderful partnership with the Covid in-Custody Project, spearheaded by the unfailingly superb Aparna Komarla (read her recent and worrisome stories on the Davis Vanguard COVID page.) From now on, this blog will host all the data collected by the Covid in-Custody Project at this link, where you can get information about CDCR as well as several jails. Look for a post on resident and staff vaccine rates soon.

My heart is still very much in this battle, even as my body, mind, and spirit needed a health reset–I’m not constantly on twitter or facebook but I still care very much about what’s going on and am figuring out ways in which I can be optimally useful in this fight. In the meantime, if you swim at a city pool, in the name of all that is holy, please let faster swimmers pass you at the wall.

The Hidden Side of the Prison Labor Economy on Marketplace

This morning I spoke with David Brancaccio of Marketplace Morning Report about the perversions and frustrations of the job market for formerly and currently incarcerated workers. The broadcast version is above – here’s the longer version from Marketplace:

This interview is part of our series Econ Extra Credit with David Brancaccio: Documentary Studiesa conversation about the economics lessons we can learn from documentary films. We’re watching and discussing a new documentary each month. To watch along with us, sign up for our newsletter.


There’s a striking scene in Brett Story’s documentary “The Prison in 12 Landscapes” that captures the complicated and exploitative aspect of rehabilitative prison labor programs: An incarcerated firefighter, explaining how they’re not allowed to talk to others on the job, adds that — because of their criminal record — they have a slim chance of becoming a firefighter upon leaving prison.

It’s an experience that’s common not just for prison firefighters, but for people who work making telemarketing calls, care for elderly or infirm people in prison, and more, according to UC Hastings law professor Hadar Aviram.

“There are many limitations on people working in these occupations, and because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people,” Aviram said in an interview with “Marketplace Morning Report” host David Brancaccio. 

While there are laws in place to protect formerly incarcerated people from hiring discrimination, Aviram noted that many barriers to employment remain, including the scarcity of rehabilitative work programs and their stringent terms and conditions.

“The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based,” Aviram said, “so oftentimes they will train people to do jobs that they can’t actually get on the outside.”

Below is an edited transcript of Brancaccio’s conversation with Aviram on the other jobs prisoners commonly do, the challenges facing formerly incarcerated people who are trying to find work and what Aviram thinks can be done to increase their chances of finding meaningful jobs that take advantage of skills learned while in prison.

David Brancaccio: In this film, we see a California wildfire at first. It turns out that one of those working on the fireline, to keep it from spreading, is a person in prison, in a special prison work program. Would a program like that be common or fairly rare?

Hadar Aviram: Here in California, it’s extremely common. And among the people who saved probably thousands of lives in the last summer, when we had the wildfires, were many, many incarcerated people working as firefighters.

“The range of occupations that people have in prison”

David Brancaccio: It’s interesting, right? Because often people don’t know that, in fact, there’s a ban on people who are incarcerated speaking with members of the public while out there fighting the fire.

Aviram: Yes, there are many limitations on people working in these occupations and, because of that, the public is unaware of the fact that many of the people that they interact with every day are working as incarcerated people. A lot of the customer service on the phone, a lot of the furniture, things that are being manufactured — sweatshirts for dozens of Ivy League universities are made in a prison in Kansas, where people are getting paid 50 cents a day. It’s really astounding, the range of occupations that people have in prison. And I think that firefighting is an especially interesting example, because they are saving lives and they are working shoulder to shoulder with professional, non-incarcerated firefighters. The big irony, of course, is that then they get out and, at least until recently, they couldn’t get a job as firefighters, despite being trained, because they have a criminal record.

When formerly incarcerated people are unable to get jobs

Brancaccio: I mean, that’s the thing. There’s, of course, a move that we’ve spent some time covering on this program to ban employers from, for the first initial part of a job application, asking if you have a criminal record, but employers have a way finding out anyway, or it comes up during the background check.

Hadar Aviram

Aviram: Absolutely. I was one of the big pushers for this kind of, we call it “ban the box” initiatives, to screen people without knowing their criminal record. But, it turns out, colleagues of mine at the Urban Institute did a study and they found out that rather than employers discriminating on the basis of criminal records, they have started discriminating on the basis of race as a proxy for criminal records. So, for example, they’ll get job applications, and they don’t know which of the people have a criminal record, but they will interview the person called “Brad” rather than the person called “Jamal,” under the assumption that they are using this as a proxy for the criminal record that they don’t have an access to. It’s very frustrating, because you’re trying to create equal opportunities for everybody, but these things have such a protean quality that they pop up no matter what kind of protections you introduce in the workplace.

“Oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself.”

Hadar Aviram, UC Hastings law professor

Brancaccio: What do you do about that? I mean, you know, there’s an ongoing national discussion, at some level, about what we’re addressing here. But, in part, when people have worked alongside people that they find out have criminal records, and they see firsthand that they’re like the rest of us, sometimes that can help break down these stereotypes?

Aviram: Absolutely. And this is a truth that has been found in studies all over. I mean, people have done studies, for example, of members of fundamentalist churches that, you know, will be railing against single mothers and gay people, but then they have a gay uncle or a niece who’s a single mom and they love them to bits, and that softens, a little bit, this approach.

And the same thing holds for people with criminal records. I just saw a study done at a college where there was a strong correlation between students who personally knew fellow students who were formerly incarcerated and their opinions about: Would they befriend somebody with a criminal record? Would they be willing to date somebody who had been in prison? So, truly, personal acquaintances and education and exposure is the most important thing that we can do to break down these barriers.

Brancaccio: Back to this notion of labor done by people in prison: When the phone rings at our house, it could be someone who is incarcerated at the other end of the line?

Aviram: Yes, absolutely. This is just one of many, many, many occupations that people engage in in prisons. Phone solicitation, customer service, a lot of manufacturing of everyday items that you wouldn’t even have an idea come from prison. And, of course, a lot of the work inside prisons. I don’t know that a lot of people know this: We have a high population of people who are aging and infirm in prison. And oftentimes the people taking care of them are trained caregivers who are incarcerated themselves. So a lot of the things that we think the state is providing, it’s actually people from inside the prison who are incarcerated themselves who are doing it.

Is prison labor, by definition, exploitative?

Brancaccio: What’s your sense, having studied this — I mean, is it, by definition, prison labor, exploitative? I mean, no one’s paid market rates for that labor.

Aviram: This is a complicated question, because there’s the world that we would want to live in, in which everybody gets minimum wage and in which you are actually trained for the reality of the marketplace. And there’s the realities of the world we’re in, in which prison labor, to different extents, is exploitative, and we therefore try to sort of improve people’s lot within the conditions that they’re in.

We have to keep in mind the fact that, to some extent, prison labor is training people for conditions in the market on the outside. But the problem is that oftentimes prisons turn to these work programs because they think they’re going to be rehabilitative or whatever. But for the most part it’s economic considerations of the prison itself. The programs themselves are very selective, it’s difficult to get into them, not all of them are evidence-based, so oftentimes they will train people to do jobs that they can’t actually get on the outside. Up until recently, the firefighting was one such example, but there are many other examples. The programs that do have occupations where people can work on the outside, like marine technology or carpentry, are highly selective; very, very few people can get in. Overall, a more realistic prospect for people coming out is to become independent contractors and work for themselves.

The kind of work formerly incarcerated people end up doing

Brancaccio: That’s what people end up doing? Working for themselves?

Aviram: Exactly. For example, you’ll find people that are putting together landscaping companies, house work companies. And there are some examples that are really amazing, of nonprofits that people have put on the outside, where they’re working in the marketplace and just doing amazing things. Right next to Hastings, which is where I teach, is a neighborhood called the Tenderloin in San Francisco, which, during the pandemic, became pretty much an open-air drug market — lots of homeless people, lots of misery, mental health, substance abuse, oftentimes people overdosing. And the mayor was upset by this, and a couple of times they sent the police to clean up the neighborhood with everything that stems from that. That was extremely difficult, because there were no solutions for people other than just sort of cleaning up the aesthetics.

And then a nonprofit stepped in called Urban Alchemy. They operate public restrooms, which is incredibly important in these kinds of neighborhoods. They operated safe sleeping sites during COVID. They calmed down violence, they actually revived people with Naloxone who had overdosed multiple times every week. They did amazing things. And what enables them to do this work more effectively and more peacefully than the police, and almost without any show of force, is the fact that they are former lifers, that the people who work at Urban Alchemy acquired these peacemaking and mentoring skills that they use every day on the job in decades in prison. They were elders and mentors on the yard when they were inside, and they retain this kind of calm mentorship role on the outside. And they have done such an amazing job that the change in energy in the neighborhood is palpable.

Brancaccio: Those are special skills that are in demand. It’s a shame that some employers don’t fully recognize this.

Aviram: Exactly. There are many ways in which we look at a criminal record or a previous prison stay as a liability. This is of course difficult, because at any given moment, 1% of the entire population of the United States is incarcerated. So we have a lot of people who actually have acquired skills and strengths where they were that we can use in the marketplace. I’m not just thinking about occupations that are entry-level jobs, I’m thinking even about entry into, say, the California bar, as lawyers. Think about what somebody brings in, coming in with an insider perspective on a criminal justice system, reassuring their clients about what’s going to happen to them, you know, being able to present a realistic perspective. There are so many strengths that you acquire.

One of the most successful programs we have in California is called marine technologies, it’s people who work underwater fixing ships and underwater structures. And this is partly a skill where it’s a great advantage to be used to being in a very overcrowded environment. This is difficult for a lot of people. But people, unfortunately, who spent time in our grossly overcrowded prisons have acquired this skill. This is a market strength that is being undervalued and stigmatized for no good reason.

Brancaccio: I was reading about that marine program. Recidivism, going back to the ways of crime, is near zero for people who’ve gone through that program.

Aviram: Those are good jobs. If you get a job like that, there is no reason for you to commit crime, because you have gainful employment. We have to think more evidence-based about these kinds of programs and strengths in the market and prepare people for that.

Brancaccio: Those programs often can be expensive within the prison. Sometimes when budgets are tight, as you’ve written, that’s the program that gets cut.

Aviram: Exactly. It’s one of the downsides. And this is something that I wrote in my first book “Cheap on Crime,” that we, overall, saw the prison population shrink since 2009. This was a result of the the recession of 2008. But one of the side effects of that that was more sinister was that there were drastic cuts to rehabilitative programming. And that created a big difference, a big gap, between prisons that are set in urban centers, where there’s lots of volunteers and do-gooders that step in and create these programs. Here, for example, in San Quentin [State Prison], we have Silicon Valley entrepreneurs volunteering to teach people the internet, which is very difficult when you don’t have internet behind bars. So we have all of this programming because of the volunteers, because they’re stepping in to fill in the gaps that the state cannot fill. But there are many, many prisons in the United States that are located in these remote, rural locations, very, very difficult to get there, and very difficult to get quality programming that actually prepares people to get good jobs once they get released.

Similarities and Variations in Legal Responses to COVID-19 in Correctional Facilities

This morning I’ll be speaking, alongside Sharon Dolovich, James King, and Jane Dorotik, about court responses to COVID-19, at an event organized by UCLA Social Medicine. Thankfully, we now have a somewhat fuller picture of how litigation efforts have fared overall, which we can draw on to discuss some similarities and variations.

One of the things mindfulness has taught me is that disappointment depends on expectations. In that respect, to say that correctional policies during COVID-19 have been a disappointment reflects, perhaps, unrealistic expectations from institutions that have been unwieldy and incredibly resistant to change even at the best of times. Perhaps it’s not that unexpected that the giant machine that protects the correctional colossus from reform was overall characterized by delays, evasive maneuvers, reversals of fortune and too-little-too-late gestures. So, if one expected mass releases, the disappointment would be commensurate with the expectations.

Still, there is an objective benchmark against which to measure my disappointment: the problem is not that the releases fell short of being what I hoped they’d be–it’s that they fell short of what was needed to curb the spread of the pandemic. We don’t have to wonder what that number would be; we had assessments of individual institutions with recommendations from physicians specializing in pandemic spread. I think that now, in mid-April 2021, we can safely say that, with respect to releases, courts have failed to provide the relief they should have provided.

We have two great nationwide summaries that support this conclusion. Brandon Garrett and Lee Kovarsky’s new piece Viral Injustice is a survey of COVID-19 correctional litigation outcomes. Garrett and Kovarsky conclude:

Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge—limiting such relief to vulnerable subpopulations. The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses—including vaccination efforts—and incarceration more generally. First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments. Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function. Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend. Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

Brandon L. Garrett and Lee Kovarsky, Viral Injustice

We also have an excellent summary from the Prison Policy Initiative, who concluded that overall the response was “grim”:

Lawmakers failed to reduce prison and jail populations enough to slow down the spread of the coronavirus, causing incarcerated people to get sick and die at a rate unparalleled in the general public.

However, some individual state and local policymakers took steps that stand as an example of how to release a large number of people from prison — a necessary step to ending mass incarceration. And some policy changes made during the pandemic — like eliminating cruel copays for incarcerated people — are ones we need to remember and demand that they be extended permanently.

Prison Policy Initiative, The most significant criminal justice policy changes from the COVID-19 pandemic

I want to throw in a few additional issues that illuminate aspects of these legal responses:

  1. The PLRA, while greatly responsible for suffocating prison litigation, is not the be-all, end-all of the problem. Following Plata v. Newsom closely, I’m not sure how much of the inaction is Judge Tigar’s allegiance to the PLRA framework and how much of it is a culture of conciliatory, deferent approach and valuing “bringing everyone to the table” rather than ordering a solution. Some of this could be down to individual judicial personalities and some of this could be attributed to litigation cultures in different states or even in different counties. I think that our good fortune in the first round of Von Staich was because we were fortunate to get a panel that was deeply responsive to both the humanitarian emergency behind bars and to the geographical argument that the threat would extend to outside communities.
  2. Relatedly, I don’t think that the state vs. federal litigation was the important distinction. Nor was it class action vs. habeas corpus. I think the defining feature of the litigation is the aggressive deference to correctional authorities–giving vague, modest relief knowing that correctional officers and their lawyers can sabotage it.
  3. Generally speaking, and beyond CA, the staff has been the problem–from dragging their feet to actual frustration of purpose (by not testing, not reporting symptoms, and not getting vaccinated.) There has been precious little done to hold correctional officer unions accountable for their colossal leadership failures.
  4. In the absence of releases, there’s been a lot of reliance on bottleneck provisions–stopping admissions from jails, which put the onus on jails to handle their own pandemic issues, often without data and without accountability. The counties have been left to figure things on their own, with dramatically varying degrees of success (see my analysis of this here.)
  5. The advent of the vaccine made a difference, both in terms of state enthusiasm to help incarcerated populations and in the courage of courts. How vaccines played into advocacy and litigation is a complicated story, which Chad and I will analyze more thoroughly in our book-in-progress, #FESTER: Carceral Permeability and the California COVID-19 Correctional Disaster (under contract, UC Press.) In a nutshell, vaccines opened an avenue that allowed courts to avoid grappling with their paralysis regarding releases and recur to a short-term strategy to provide immediate relief from the current pandemic. And even this was not always necessary, given that many states got ahead of the courts and gave the vaccines.
  6. The most notable aspect of the deference/reluctance to do more for prison and jail populations was the prevalence of zero-sum games of deservedness (“grandma before inmates!”), which ignored obvious implications of geography and epidemiology: the idea that people in congregate settings, no matter who they are, face more risk, and that spaces that are jurisdictionally/institutionally set apart from society at large are, in fact, permeable to disease. This is going to be the main premise of #FESTER.
  7. The deservedness argument posed some difficulties in advocacy and organizing: does making the argument that jail populations are largely presumed innocent introduce the deservedness scale, which as Kovarsky and Garrett show was at play in the overall picture of relief? And, how to advocate short-term for vaccination while advocating long-term for releases?

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

Book Review: Karen Morin, Carceral Spaces, Prisoners and Animals

My two biggest research interests–criminal justice and animal rights–come together in Karen Morin’s new book Carceral Spaces, Prisoners and Animals (New York: Routledge, 2018.) Morin, a geographer by discipline, applies insights from carceral geography to both human and nonhuman confinement contexts.

Carceral geography is a growing area of scholarship that examines prisons through a lens of spatiality. Building on work by Michel Foucault and Giorgio Agamben, carceral geographers problematize the overly simplistic notion of prisons as carceral spaces, arguing that prison boundaries are porous and that carceral ideologies of domination through confinement permeate spaces beyond the prison–beyond the formal dichotomy between “inside” and “outside.” Some themes studied by carceral geographers include spaces within prison and how they affect the experience of incarceration (“public” and “private” spaces within the prison; the impact of prison on the body); the interface between prisons and surrounding communities (prison towns, family members, transportation); mobility within and between prisons; and prison architecture and design. Carceral geography is directly relevant to my current research project, which is a book in progress about the COVID-19 catastrophe in California prisons; I rely a lot on the idea of prison permeability, which brings together notions of carceral boundaries, logics of opportunity (for people and for the virus,) insights from situational crime prevention, and miasma theory. In addition to this, I’m deeply interested in animal rights, and am working on a project involving the criminal prosecutions of animal rights activists who break into factory farms to release suffering animals.

In many ways, my interest in liberating nonhuman animals is an obvious extension of my interest in alleviating suffering in prisons. But the comparison is socially fraught from many directions. I often hear prison reform activists and abolitionists criticize prisons for treating people “like animals,” as if treating animals this way is fine; I’ve also heard animal rights activists criticize experimentation on animals, proposing to experiment on prisoners instead (Justin Marceau criticizes the myopic assumptions of the latter phenomenon in Beyond Cages.) I’ve also had to contend with people who find the comparison deeply offensive. Morin is well aware of these emotional and political landmines and writes:

I recognize though that the politics and ethics of making comparisons between racialized and classed human lives and that of nonhuman animals in respective carceral spaces can be problematic and fraught. It is challenging for humans who are embedded in violent, racialized, and criminalized human histories and spaces to not be offended by posthumanist comparisons to animal suffering. As noted above, the category of ‘human’ is contested in any case, and it is important to not move too quickly ‘beyond the human’ without acknowledging the continued exclusion of many human lives from full incorporation within it. And yet thinking particularly about race and animals together is important, precisely because of the way that racialized people have been and continue to be animalized in carceral spaces (Chapter 3). Moreover, the carceral logics of domination are intertwined across human and nonhuman groups. To take one more example, as Deckha (2013b) has shown, animal anti-cruelty legislation has the double effect of selecting certain animals for protection while targeting the behaviors of certain minoritized populations of people as deviant and transgressive. Meanwhile, industrial practices involving the dominant culture – as well as the abuse and killing of most animals – remain immune from critique.

Morin, Karen M.. Carceral Space, Prisoners and Animals (Routledge Human-Animal Studies Series) (p. 15). Taylor and Francis. Kindle Edition.

This avenue is deeply productive, not only because the analogies and similarities are analytically interesting, but because solidarity across movements is essential for success. Morin’s analysis ties together the prison-, agricultural-, and medical industrial complexes, showing the intricate connections between them and the profit logics that underpin them.

Morin’s book proceeds to analyze a series of contexts in which she sees parallel developments between human and nonhuman carceral spaces. She compares execution chambers and slaughterhouses, discussing the notions of “humane” slaughter and of death sentences that are supposedly not “cruel and unusual.” She discusses the intersection of the medical and carceral spaces in the context of medical experimentation. She even asks difficult questions about prison boundaries when discussing zoos and supermax facilities. The book also makes an important contribution to two seemingly unrelated growing literatures: the one about forced labor in prisons and the one about the possibility and structure of labor rights for nonhuman animals. Throughout these topics, Morin shows deep sensitivity to the broader social structures that allow cruelty to persist.

My favorite part is Morin’s comparative analysis of prison towns and cattle towns. She shows how the introduction of an exploitative industry into a “company town” shapes the economy and the tenor of the entire town, without granting much in the way of economic benefit to the town itself (by contrast to the industry that exploits the town.) Morin doesn’t explicitly say this, but a big thing here seems the creation of a municipality that is collectively impermeable to compassion, which I think is a serious issue even when the industry is profitable.

We often talk about dehumanizing conditions in prisons. But perhaps the question is not whether or not we’re all human; the question that should matter is whether we are sentient and whether we suffer. A few years ago I read Michael Dorf and Sherry Colb’s Beating Hearts, which compares the logics of sentience underpinning the pro-life and animal rights movements and finds a way to reconcile them into a cohesive pro-choice and pro-animal perspective. I think there’s a way for advocates and activists to find peace with Morin’s comparison in a way that allows them to support both movements.

Morin admits that she has not analyzed all the scenarios that her comparison speaks to, and I found at least two that I would like to read future works on. The first has to do with the concept of overcrowding. Morin discusses issues of caging in depth, but the book does not delve into the movement toward humane farming and “cage-free” chicken facilities. Now a major selling point for eggs and for pig meats, the notion of no-cage or no-crate is deeply misleading, and some states, such as California, use various parameters to try and measure overcrowding. I’ve seen parallel developments in the context of prison population reduction orders. It’s no big secret that I think the measuring yard used in Brown v. Plata–percentage of design capacity systemwide–was deeply shortsighted, and a more careful calculation of minimal per-person area, as in other countries, would have helped us mitigate the COVID-19 catastrophe we’re experiencing right now.

The second issue I would want to read more about has to do with movement strategy, and with the reform-versus-revolution debate in the prison advocacy community. There is a parallel debate–quite a heated one–in the animal ethics community, between animal welfarism and animal liberation. Movement strategy and tactics, attention to incremental reform, and the use of the criminal justice process to challenge cruelty and obtuseness are relevant to both movements, and I think there’s more room to write about this.

These two issues notwithstanding, the book makes a fascinating read. Unfortunately, Routledge has priced it quite prohibitively, but prospective readers should know that you can rent it from Amazon for a reasonable price.

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.