Feminist Scripts for Punishment

Review of: THE FEMINIST WAR ON CRIME: THE UNEXPECTED ROLE OF WOMEN’S LIBERATION IN MASS INCARCERATION. By Aya Gruber. Oakland, C.A.: University of California Press. 2020. Pp. xii, 288. $29.95

Radical Feminist Harms on Sex Workers

Sex work has long been a site for contesting womanhood, sexuality, race, and patriarchy. Its very existence forces us to examine how we think about two very dirty subjects—money and sex. The radical feminist literature highlights the problems with sex work and often describes it as a form of “human trafficking” and violence against women. This influential philosophy underlies much of the work in human trafficking courts, was evident in a letter signed by several Hollywood starlets in opposition to Amnesty International’s support for decriminalization, and is the premise of several movies and documentaries about “sex slavery.” Radical feminists aim to abolish sex work but argue that only sex work purchasers should be criminalized for engaging in it. They are concerned with the structural harms of sex work and have formed alliances with groups that oppose sex work due to moralistic reasons. Like radical feminism, this Article considers the structural harms of sex work in assessing whether it should be criminalized. However, this Article arrives at a very different conclusion and challenges the radical feminist approach to sex work, arguing that the harms of any form of criminalization, particularly to individuals with intersectional identities, are overlooked in much of the radical feminist literature on sex work. This Article incorporates empirical research from nearly two years of ethnographic fieldwork in Johannesburg, South Africa, to illustrate the ways that criminalizing any aspect of the sex work transaction, including the demand-side, is problematic. By recognizing that some sex workers face the effects of multiple systems of oppression and that the criminal justice system has often been a source of oppression for these individuals, this Article argues that decriminalization should be the favored approach for those interested in improving the lives of sex workers. Moreover, the essentialist framing of the harms of sex work in the radical feminist literature is itself a reproduction of patriarchy and white supremacy, silencing the voices and experiences of sex workers themselves

Blue Lives & the Permanence of Racism

In true dystopian form, the killing of unarmed Black people by the police has sparked a national narrative about the suffering of police officers. “Blue Lives Matter” has become the rallying call for those offended by the suggestion that we should hold police officers accountable for killing unarmed Black people. According to a December 2016 poll, 61% of Americans believed that there was a “war on police,” and 68% of Whites had a favorable view of the police as compared to 40% of Blacks. Lawmakers around the country have been proposing Blue Lives Matter laws that make it a hate crime to kill or assault police officers. This strange twist of events is perverse given the social context. Why should the police be viewed as victims in need of additional protection at precisely the same moment that many have questioned their victimization of Black communities? This Essay considers this question and argues that “Blue Lives Matter” is evidence of the permanence of racism as a juridical and discursive matter in this country

Harm, Sex, and Consequences

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reining in a system that seems to be ever-expanding and reframing a criminal legal theory that has grown ambivalent about this expansion

Harm, Sex, and Consequences

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reining in a system that seems to be ever-expanding and reframing a criminal legal theory that has grown ambivalent about this expansion

On Beauty and Policing

“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and serve us all. This Article examines how police preserve racial and gender subordination in South Africa, an instructive analog for the United States because of both nations’ shared histories of racial apartheid and valorization of whiteness. Drawing from extensive original data from a multiyear study, this Article exposes how police officers’ perceptions about sex workers’ beauty influenced their policing of different classes of sex workers in Johannesburg, South Africa. Police valuations about sex workers’ beauty resulted in benevolent surveillance of sex workers who were higher on the social hierarchy and decreased police protection for sex workers whom they viewed as less beautiful in more dangerous areas of the community. If community protection and service were the primary motivators for police conduct, police officers should have focused on the spaces that were more dangerous, which were those with sex workers police deemed less professionalized and less beautiful. This act of assigning value to different bodies, through the subjective language of aesthetics and beauty, reinforced existing racial and sexual hierarchies. Beauty was a proxy for race. Police assigned higher values to whiter and more European bodies, and discounted blacker bodies as foreign and less beautiful. So blacker bodies, which were less valuable than whiter bodies in their eyes, were simultaneously neglected yet susceptible to more brutal forms of policing during their limited interactions with police. Whiter feminine bodies were both well-protected and subject to the constant gaze of the police. These whiter bodies were ignored when they challenged white masculinity, but prioritized over blacker bodies. Reinforcing the higher value of whiter bodies over blacker bodies took precedence over reducing crime, suggesting that police serve and protect racial hierarchies in countries that have a history of white supremacy before they serve and protect the people

The Racialized History of Vice Policing

Vice policing targets the consumption and commercialization of certain pleasures that have been criminalized in the United States—such as the purchase of narcotics and sexual services. One might assume that vice policing is concerned with eliminating these vices. However, in reality, this form of policing has not been centered on protecting and preserving the moral integrity of the policed communities by eradicating vice. Instead, the history of vice policing provides an example of the racialized nature of policing in the United States. Vice policing has been focused on (1) maintaining racial segregation, (2) containing vice in marginalized communities, and (3) facilitating the surveillance of these communities. This Article adopts an abolitionist methodology to evaluate vice policing and introduces three principles that animate abolitionist organizing and thought: the principles of legacy, futility, and possibility. This Article introduces this framework for understanding abolition, which will be more deeply examined in future work. It applies two of these principles—legacy and futility—to evaluate the racialized history of vice policing in the United States. The first principle, legacy, invites us to center an institution’s history in the maintenance of white supremacy when evaluating that institution’s continued existence in modern society. The second principle, futility, encourages us to abandon futile attempts to resuscitate morally bankrupt institutions. This Article applies the legacy and futility principles to demonstrate how the very core of vice policing is about maintaining white supremacy. In many cities in the United States, police deliberately pushed vice into racially segregated Black neighborhoods and contributed to a geography of vice that reinforced the racial hierarchy. This policing protected property interests in white neighborhoods while allowing vice to continue to exist within these cities. Vice policing maintained the property interests of white communities by ensuring their property values did not decrease because of visible, and impossible to fully eradicate, crimes. As such, the policing of vice was a mechanism for maintaining racial segregation and preserving white property. It was a form of redline policing. Liberals who critique police and prison abolition as too radical often ignore this history (or are unfamiliar with it). While these liberal reformers believe we should preserve the good parts of policing, this Article argues that racialized vice policing has left very little good to preserve. In other words, the bad parts of vice policing are core to the way policing occurs and are part of its legacy (and present). This Article illustrates how this policing was critical to creating and then maintaining Black communities as sites of vice and visible crime. Given this history, the abolitionist demand to abandon futile efforts to reform violent institutions invites us to take this history seriously and look beyond police to address community harm in this area

Girls, Assaulted

Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual abuse many incarcerated girls experienced at home to the nonconsensual touching of their bodies they all experience when they enter detention facilities. Mandating invasive searches is a particularly gendered form of traumatization that is especially troubling given Black and Indigenous girls’ disproportionate representation in juvenile detention facilities. So, like their ancestors, their bodies have become sites for conquest, dominion, and discipline. This Article examines the severity and normality of state violence and provides a constitutional basis for eliminating blanket and routine searches by arguing that these invasive searches violate the Fourth Amendment, Thirteenth Amendment, and Eighth Amendment rights of incarcerated girls. Despite a purported concern for these girls’ rehabilitation, incarcerated girls must endure humiliating searches that require that they expose their bodies to the parental state. The routine touching that marks the everyday lives of incarcerated girls illustrates the ordinariness of the violence of incarceration in the United States

Harm, Sex, and Consequences

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reining in a system that seems to be ever-expanding and reframing a criminal legal theory that has grown ambivalent about this expansion

Beyond Policing

We all deserve to live in communities where we feel safe And true community safety means feeling safe from violence by the state, which includes the police. Social inequity has systematically and institutionally permeated our country since its founding, becoming more visible at various times in our history. We are now living in one of those moments of tremendous clarity, and it calls on us to look deeply at the efficacy of the reforms and narratives which preceded it . The deadly consequences of political decisions that create health disparities are now a wound that cannot be unseen as the COVID-19 pandemic disproportionately ravages Black, Brown, and Indigenous communities. At the same moment, Americans of all back-grounds are bearing witness to the pervasive nature of racism in this country as we watch a seemingly endless stream of viral videos of police officers and white supremacist vigilantes murdering Black people. This storm of violence, awareness, and anger about racial injustice has energized a new social justice movement to address police violence. Protesters around the world have taken to the streets chanting “Defund the Police” and “Black Lives Matter” to eradicate the ongoing threat of police violence. In light of the growing acknowledgment that policing has been an institution that compromises the safety of marginalized communities, the political will to re-imagine the very essence of community safety is growing. Society must move beyond police and punishment when thinking about community safety, so that we can enjoy solutions and interventions that promote dignity, humanity, anti-racism, and freedom from fear. Beyond Policing reveals that calls to enact moderate policing reforms are not backed up by a track record of success. Instead, the analysis shows why calls to defund the police open doors to new solutions, which show promise and move beyond the police and punishment . It is intended as a tool for advocates and policymakers to talk about the importance of defunding the police and investing in communities. Beyond Policing includes: 13 city analysis of police departments that have adopted moderate reforms to improve policing but have nevertheless continued to engage in police violence. Our analysis provides support for the #DefundthePolice movement’s acknowledgment that it is past time to look beyond the old reforms and old ways of communicating about police reform. A detailed look at numerous community groups and programs that enhance community safety without relying on police involvement. These programs adopt restorative justice, community empowerment, peer mediation, and economic support to address and prevent harm. They provide concrete solutions that address the question, “If not police, then what?” Tips for talking about #DefundthePolice, including guidance for supporting a narrative that recognizes that the demand is realistic and needed in this moment.https://www.repository.law.indiana.edu/facbooks/1275/thumbnail.jp