Mixed martial messages
For roughly half a decade, a small contingent of criminal justice reformers have pleaded with Americans to divert some of our attention from opposing the war on drugs to pitying violent criminals.
“We cannot get from where we are to where we need to be simply by freeing the innocent and harmless,” wrote the late criminologist Mark Kleiman in 2015. “More than half of today’s prisoners are serving time for violent crimes, and even those who they are now in prison for non-violent crimes they often have a violent record. Solving mass incarceration requires the release of some seriously guilty and dangerous people. The problem is how to do it while at the same time protecting public safety by turning ex-offenders into free citizens and productive “. Fordham law professor John Pfaff made a similar argument in 2017 Locked in (Basic Books), which rejected what Pfaff calls the “standard story” that blames the war on drugs for mass incarceration.
The latest contribution to this genre is that of David Alan Sklansky. A pattern of violence. Sklansky, a former prosecutor, argues that “violent crime” is a relatively recent and fluid legal construct. “We take for granted that violent crimes are the serious crimes, the ones that deserve the harshest sentences,” he writes. In an era when no one seems to agree on anything, many Americans and almost all of our political elites agree that violent criminals should be “eliminated.[d]… from among us, “as Vice President Kamala Harris put it when she was a district attorney in the early 2000s.
This consensus has several implications. One is the clear distinction between criminal law, where the statutes classify behavior as violent or non-violent, and criminal procedure, where the “use of force” by the police ranges from necessary to unnecessary. The book also covers violence by and against minors, violence in jails, the evolving treatment of rape and domestic violence law, and the ways in which America’s deference to free speech, property deprived of arms and self-defense has undermined both the left and the right. efforts to broaden the legal definition of violence.
American laws governing violence vary from place to place and from time to time. They are influenced by race, class, social mores, and social upheaval and are far from standard as a result. However, there is a tendency in all jurisdictions to expand the concept of “violence” to include more and more crimes.
Another common thread identified in Sklansky’s book – a reformist text that makes very few suggestions for reform – is that adding new violent crimes to the penal code is not always bad. In the 1970s and 1980s, many jurisdictions adopted statutory and procedural changes that recognized marital rape and domestic violence as crimes, limited the ability of defense attorneys to testify about the consensual sex lives of rape victims, and “weakened or they dropped “the requirement that prosecutors prove a rape victim” showed ‘maximum resistance’ “against her attacker. These reforms transferred the legal focus of women’s purity to the actions of their attackers. They also helped undo sexual deviance as a category of crime, benefiting gays and lesbians.
Of course, once the legal system accepted that raping and beating women were violent crimes, rather than an unfortunate consequence of male lust or a private marital affair, it became imperative for victims to prove that violence. Many women who have been victimized by men, especially in or adjacent to professional settings, cannot meet this standard. Criminal law can make quick work of a violent rapist, but it won’t help you if you hope to prosecute less forceful transgressions, including most of the events brought to light by the #MeToo movement.
It should Does the law apply in those cases that involve rape but not violence? Since the 1980s, feminists have been divided on the issue. Catharine MacKinnon wanted to legally define rape as “any physical invasion of a sexual nature under circumstances of threat or use of force, fraud, coercion, kidnapping or abuse of power, trust or a position of dependency or vulnerability.” She believes that this definition would criminalize not only violent sexual assault, but also sex work and pornography. Other feminists, such as Marcia Pally, have argued that expanding the definition to allow for censorship of pornography infantilizes women and confuses the causes of sexual violence. The modern debate on sex work and pornography continues to confront feminists who believe that banning the sale of sex erodes women’s agency against feminists who believe that all sex work is violent because it degrades women who do so. make.
Although they predate his work, most of the laws prohibiting prostitution in the United States essentially reflect MacKinnon’s position. That hasn’t exactly worked in the women’s favor, considering that nearly every sex work bust involving actual sex workers (rather than disguised police officers) results in charges against both clients and their “victims.”
Sklansky’s book is rich in such paradoxes. If we consider that violence is so harmful that it should have its own category of law, why do we allow so much violence in our prison facilities? If we punish violence because it causes harm, why not punish harmful behaviors that leave no trace? It may not need to be explained, but Sklansky does it anyway: human beings do not find all or most of the violence objectionable. We like boxing and wrestling. We glorify the soldiers. We send the kids to karate classes and let them play contact soccer. Some types of violence are considered funny, as evidenced by the millions of people who have seen America’s Funniest Home Videos for the past 30 years.
You don’t have to be a libertarian to distinguish between consensual boxing and attacking someone against their will. But the creation of “violent crime” as a legal category – which did not happen at the federal level until 1984 with the Criminal Law of the Armed Career – was not due so much to the absence of consent as to the presence of violence. That is what makes these paradoxes so surprising. We have always prosecuted (some of) the people who damaged the bodies and property of others. But only in the last few decades has violence itself become the point of emphasis.
Meanwhile, agents of the state can do things with other people that ordinary people could never get away with. Police officers are an obvious example, but not the only one. Most states have strengthened penalties for adults who commit violence against minors, unless the adult is the father of the minor, in which case the violence must be especially severe (or the poor parent, in which case another branch of the state can exercise powers that the criminal courts will not). However, we cannot say that violence against a minor is only acceptable if committed by a parent, because it is still legal in 19 states that public school officials will assault wayward children. Data from the 2014 Department of Education suggests that school administrators legally assault approximately 100,000 American students each year. In 2016, researchers Elizabeth T. Gershoff and Sarah A. Font offered an even higher estimate, suggesting that administrators target roughly 160,000 students a year.
I just referred to rowing (the most common form of standardized corporal punishment) as “assault”, because that is what most people would call it if three grown men dragged a 14 year old boy into a room, two of the men He was tipped over and a third man hit the boy’s buttocks with a flat, heavy piece of wood with such force that the boy later needed pain relievers and laxatives to go to the bathroom. That is what happened to one of the plaintiffs in 1977. Ingraham vs. Wright. But after the Supreme Court heard that case, brought by two black Miami-Dade high school students who sued their school district after administrators kicked them for tardiness, the court’s conservative majority ruled that the students have no the right to due process before rowing and that the end of the punishment does not violate the constitutional prohibition of cruel and unusual punishments. As is often the case, the Court is more permissive when it comes to state violence than violence between individuals.
Sklansky’s book highlights some efforts to make our justice system less of a nightmare. For example, he writes approvingly of various diversion models that allow defendants to avoid prison and jail, though he notes with regret that they are largely unavailable to “violent” offenders. But A pattern of violence it is not a policy treatise. The author does not have great solutions to share, only historical asymmetries and their consequences. His only call to action is for readers to resist the temptation to think of violence as “an easily recognizable, objectively distinguishable, and superlatively condemnable set of behaviors, involving an easily recognizable, objectively distinguishable, and superlatively condemnable category of people.” .
A pattern of violence: how the law classifies crimes and what it means for justice, by David Alan Sklansky, The Belknap Press of Harvard University Press, 316 pages, $ 29.95