You will answer the following hypothetical scenario:
You are given the power to alter the course of how “justice” is delivered in the contemporary United States. What sorts of policies, efforts, decisions, etc, would you enact? Thinking about the history and contemporary development of policing, mass incarceration, and criminalization and how they are shaped by race, class and gender, what should “justice” look like?
To answer this question, please map out one central “reform” that you would propose for the US criminal justice system to tackle racial, class and gendered disparities. There are distinctions between “reformist reforms” versus “non-reformist reforms.”
A reform refers to changing the existing institution through gradual changes. Non-reformist reforms refer to focus on structural changes to society that reduce contact with the criminal justice system and transform the relations of power that shape punishment.
You are required to draw from AT LEAST FOUR of the readings and materials. Think about the connections between institutions such as the family, education system, government, police, prisons, criminal courts, parole/bail, etc., and how one navigates based on their positionality (race, class, gender, age, residency, sexuality, sexual expression, legal status, etc).
You may only use up to one documentary/media clip and the rest have to be readings. You might even find it helpful to do some of your own outside research that can inform your answer (please cite this at the bottom of answer, in any format you like).
What I want to see here is creativity, rigor, and critical thinking.
If you are using outside readings, please include a separate reference page and cite in the format you’d like. Otherwise, if you are using provided readings just in-text citation (Author Last Name, Page #).
What is Crime?
• Any action or omission socially constructed as an offense that may be
prosecuted by the state and is punishable by law
• Socially constructed
• Reflective category
• Question: Can we think of any current action/offenses that was once a
crime?
What is Criminology?
the study and science of crime and criminals; the scientific study
of crime as a social phenomenon, of criminals, and of penal treatment
Origins of
Classical
Criminology
Cesare Lombroso
• “At the sight of that skull, I seemed to see all of a sudden the problem
of the nature of the criminal—an atavistic being who reproduces in
his person the ferocious instincts of primitive humanity and the
inferior animals. Thus were explained anatomically the enormous
jaws, high cheek bones found in criminals, savages and apes. These
features corresponded to a love of orgies and the irresistible craving
for evil for its own sake, the desire not only to extinguish life in the
victim, but to mutilate the corpse, tear its flesh, and drink its blood.”
• (Lombroso, The Criminal Man)
How does Criminology impact us today?
US Criminal Justice System Today
• Punishment in US
•
•
•
•
•
Mass incarceration is impacted by
Race
Class
Gender
Sexuality and sexual expression
• Disproportionate policing and surveillance of marginalized
populations
A Two Tier Criminal Justice System?
The Case of “Affluenza”
Recap
• 1. Crime, as a social construct and reflective, changes over time.
What is criminalize is not necessarily harmful.
• 2. Criminology is impacted by multiple social factors and therefore
subject to change.
• 3. Mass incarceration in the US has been constructed as the solution
to ungovernable society.
History of Punishment: Transition to Modern Penal Mechanisms
• Michel Foucault. Discipline and Punish [Surveiller et punir] (1977).
• Part 1: Torture Chapter 1: “The Body of the Condemned.”
• Podcast with Dr. David Garland “A Social History of Punishment”
https://www.wnyc.org/story/social-history-punishment/
3 Questions
• 1. How has punishment transform overtime?
• 2. What is the impact of public displays of torture vs. hidden form of
punishments?
• Does the removal of the public spectacle of torture indicate a more
humane/civilized State? Why or why not?
• 3. How did prison become the universal form punishment?
Learning Outcomes
• 1. Punishment: Revealing Relationships of State’s Power
• Public spectacle of torture
• The Modern prison
• 2. The Body, as a Site where Power is Exercised
• Penal mechanisms imposed on the individual body indicate State power and
social forces
• From the body à soul/psyche
Premodern Forms of Punishment:
Public Torture/Execution
• Prior to 18th century
• Corporal Punishment
• The type of punishment distributed was based on the Offense & Offender
• Punishment type is not uniform
• The power of the sovereign is visualized at the scaffold
The Power of the State:
Exercised via Sovereign
• Absolute Power of the State
• Exercise of power was top-down/vertical
• The sovereign can let live or make die
• Torture justified itself by the act of confession
• it was the ultimate proof of guilt
• Opportunity for redemption for the offender
Shift of Punishing Power:
From the Sovereign King to the State
• The king’s terror came under pressure in the 18th century
• Late 18th century & early 19th century two processes of punishment
disappeared:
• 1. torture as a public spectacle (executions, guillotine, etc)
• 2.physical pain
• Punishment became secretive, abstract and hidden
• No one person is responsible for distributing pain
• Punishment à decentralized & part of society’s redistribution
• Ex] The People/The State of California vs John Doe in criminal courts
The Modern Prison
• Begin. 19th century
• Hidden, isolated & secretive forms of
punishment
• Far away from populated areas
• Intended to deprive one of rights and
liberties
• Whereas pervious punishment
intended to deprive one of life
• Purpose of prisons: to change your soul
• Discipline potential workforce
The Modern Prison
• Justice is no longer about the desire to
punish
• instead to “correct”
• “corrections” facilities
• Criminals become now hidden & always
potentially surveilled by State officials
• Internalized discipline & Selfobedience.
Agenda
• Forms of torture prior to prisons
• 1. Compare state’s power on the body on the scaffold vs prison
• 2. Prison as a new institution for disciplining useful bodies
• 3. Prison as new institution for knowledge production
Methodological Rules for Investigating
Punishment
• 1. Punishment is part of a whole social function
• 2. Punishment is a political tactic
• 3. History of Penal law and social sciences are interrelated
• Knowledge and power are intertwined.
• 4. The Body is invested by power relations
Historical period
Type of punishment
Slave economy
Punitive
Feudalism
Corporal punishment (flogging or
executions)
Mercantilism (early 18th century)
Forced labor, workhouses (factoryprisons)
Industrialism (mid-18th century to early
19th century)
Corrective, detention, secretive/hidden
prisons
Scaffold vs. Prison
Visible to the public
Visible to authority (C.O./ prison guards)
Retribution: King & Executioner
Retribution: society (institutions)
Target physical body
Target soul/psyche
Internalized shame
Internalized discipline
can ask for forgiveness for the after life
Can ask for opportunities to change
Executions:
From the
Guillotine
to
the Death
Penalty
The Productive Body of the Modern Capitalist
State
• Useful
• Productive
• Obedient for wage work
• Feudalism à Capitalism
• Involve in state’s Knowledge Production
• Subjected
• Knowledge is power
• Ex] census information provides information on how to govern the population
Crime & Punishment: Changing labor
The Prison: Producing knowledge
• The prison as an institution for knowledge production
• “A corpus of knowledge, techniques, scientific discourses is formed and
becomes entangled with the practice of power to punish.”
• Premodern Concern: Was there a crime & who committed it?
• Modernity Concern: What were the social factors that produced the
enactment of this crime?
• i.e. was the criminal mad, from a deprived background, etc.?
• Can they be re-educated/reformed to become productive workers?
• Education, factory, hospital, military – institutions to reeducate people
Prison: Site of Soft Coercion
• Violence is one way to exercise power over the body/population
• Torture is more physical and directed at the body
• Prison are more of a soft coercion directed at the soul/mind
• Prison exercising Soft coercion:
•
•
•
•
Subjection
Solitary confinement
Strict time schedules
internalized repression & self-discipline
Review/recap
• Forms of Punishment:
• reveal the relationship of power
• legitimacy of the State
• Needs of labor/economy
• The body, as a site of where power is exercised, is essential to the penal
system
• Body & Soul
• Prison: as an institution for knowledge production
• Increased monitoring & information gather for social control of population
Crime Waves and Migration Patterns
Recap
• 1. Punishment Reveals The State’s Power & Authority
• Public spectacle of torture
• The Modern prison
• 2. The Body is a Site where Power is Exercised
• Penal mechanisms imposed on the individual body indicate State power and
social forces
• From the body in premodern society à soul/psyche in Modern Society
Watch Film Documentary: 13th
• https://www.youtube.com/watch?v=krfcq5pF8u8
• Watch from minute 7:32- 27:00
This Week’s Readings:
• Simon, Jonathan. Governing Through Crime. “Chapter 1: Power,
Authority and Criminal Law”
• Stuntz, Williams. The Collapse of American Justice. Chapter 1: “Two
Migrations”
Main Points for This Week’s Discussion
• 1. Governing through Crime actively reshapes how State power is
exercised through hierarchies of class, race, ethnicity & gender
• 2. The Shift to a “law and order” society was a reaction to an
uncontrollable society
• 3. Shifts in US Crime Waves are driven by Multiple factors
• How ”crime” is measured
• Immigration patterns & Community representation/connection
Discussion Question:
•What is the primarily task of the government?
What is the role of government with crime?
• To manage the state
• Government deals with the conduct of individuals within the
population (16)
• To anticipate and provide structure for the possible actions of the
population.
• The Government has a monopoly of violence
3 Assumptions about Crime & Governance to Avoid
• 1. Crime is primarily about the Poor/minorities
• Penal Policies and welfare policies are part of governance that addresses the
threats of the poor as directed towards middle/elite class
• Managing or policing crime is a relational process
• Urban formation of Hyper-Ghetto/hyper-suburbanization
• Gated Communities
• Schools resemble Maximum Security facilities
3 Assumptions about Crime & Governance to Avoid
•1. Crime is primarily about the Poor/minorities
• Crime actively reshapes how power is exercised through hierarches of
class, race, ethnicity, gender
• Laws against the poor that also benefited employers/businesses:
•
•
•
•
Poor Laws (16th century Britain)
Ugly Laws (1867-1974 US)
Pig Laws (Post-Reconstruction US)
Anti-Okie Laws (1937, California)
3 Assumptions about Crime & Governance to Avoid
• 2. Crime is primarily about Repression, Punishment &
Confinement
• Government targets “fear of crime” or potential threat of crime
• The “fear of crime” can justify greater social control of the population
• including those who see themselves as potential victims
• Examples: The PATRIOT ACT (2001)
• Broader use of surveillance
3 Assumptions about Crime & Governance to Avoid
• 3. Crime is primarily about exercising
power from the Center to the
Periphery
• Multiple centers of power
• Power is exercised at many levels
• Decentralized to many institutions & multiple
actors
• teachers, social workers, principals, parents,
Human Resources and more broadly
• Everyone is responsible for
monitoring/reporting crime: “If you see
something, say something”
The US’ Shift to the Law & Order Society
•Discussion Questions:
•What is meant by the Law & Order Society?
•What is the relationship between declining
Welfarism and more prisons/militant police?
The US Welfare State
• FDR’s New Deal (1933-1939)
• Works Progress Administration (WPA):
• provided jobs for unemployed
• Post offices, bridges, schools, highways, parks.
• National Labor Relations Act/ Wagner Act
• Created National Labor Relations Board to supervise
union elections
• Prevent businesses from treating their workers unfairly
• Social Security Act
• guaranteed pensions to millions of Americans
• unemployment insurance
• stipulated that the federal government would help care
for American Families with Dependent Children (AFDC)
&disabled
The Welfare State
• The Federal Emergency Relief Administration (FERA):
• Moved 1 million homeless individuals to rural camps and city jobs from 19321934.
• The National Housing Act of 1934’
• Federal Housing Administration (FHA) to oversee housing part of the New
Deal
• Produced federal mortgage loans for homeownership
• Different mortgage rates available in the neighborhoods based on racial/ethnic
demographic of community
• Welfare did not include relief for everyone
• 1 million Mexican-Americans were “repatriated” to Mexico in 1930s
• Black people did not receive housing loans at the same rate as White people
Accomplishments During The Welfare State
• Legal Accomplishments:
• Brown v. Board of Education, 1954
• Civil Rights Act of 1964
• Social Security Act Amendments of 1965
• Voting rights Act of 1965
Progressive Movements during the Welfare State
• 1964-1971: 750+ riots and protests:
• Anti-imperialist, anti-capitalist, anti-racist
• Civil Rights protests/Upheavals in
urban areas
• Black Power movements (Black
Panthers)
• American Indian Movement (AIM)
• Brown Berets
• Young Lords
• National Organization of Women
(NOW)
• LGBTQA+ rights
• Media’s coverage revealed human
rights violations in Vietnam
The Crisis of the Welfare State
• Global Oil Peak Crisis of 1973
• Stagflation in US: factories produced more commodities than were able to be sold in the
market
• Deindustrialization: capital and factory jobs move overseas where labor and production is
cheaper
• Those who resided in cities lost jobs
• African Americans took residence in Northern cities during two-thirds of 20th century
during the Northern Migration.
• 1970s: Welfare spending Cut
• Mental health; addiction clinics; unemployment; food assistance;
• Increase in police force & funding
The Attack of the Welfarism in Media
• 1960s/70s:
• overrepresentation of urban riots
• the state is chaotic and uncontrollable and that we need more police
• More police presented as the Only Solution
• to fix this economic crisis
• Police uphold the law
• in the face of declining welfare goods and services
• Attack/criminalized those unemployment and dependent on government
support
• Welfare Queen gets constructed in 1976; panhandlers are criminalized
The Shift to a Law & Order Society: via Media
• News Media as a tool that:
• Informs & “constructs” opinion about current state of society
• 1970s:
• Welfare Retrenchment was proposed by politicians in the news as the Solution to the Crisis
• Provided the solution that tougher/austere economic policies & more police will solve this
crisis
• Those people in need of welfare were labelled: “scroungers” or “waste”
• Those who disagreed or critical of government were labelled: subversives, rebels,
delinquents
The Attack of the Welfare State
• By 1972: 3 million Americans received welfare
• 1981-1983: Omnibus Budget Reconciliation Act (OBRA) removed half a million recipients
off welfare
• 1993-1998: AFDC (American Families with Dependent Children) declined by 44%
• Shift to a New Laissez-faire
• “free market”
• New disciplining the population that promotes profits and the “free” market
• Cut spending on public services
Law & Order
Society:
Militarized Police
• SWAT developed in 1960s in
LA
• In 1971, SWAT became
full-time in order to
respond to subversive
groups
• Amendment Rights Reconstructed
as Hostile & Dangerous Black
Militant Groups
• Groups that critiqued the government
legitimacy were attacked/under greater
surveillance
• Ex) Black Panther Party, CA 1963
• Constitutional right to bear arms
1970s/1980s: Welfare Rights are Taught to be
Charity: No longer a Natural Right
• Welfare distribution historically has never served the entire population.
• See economic cycles
• Welfare Distribution is based on:
• 1) When the state has enough funds to the people
• 2) Response to social unrest
• as means of maintaining peace, pacification and acceptance of
unemployment and structural inequality
• This is what the New Deal accomplished during the Great Depression
Dispelling the Welfare Myth:
• 1935-1997: AID TO FAMILIES
WITH DEPENDENT CHILDREN
(AFDC)
• The cost of welfare (AFDC) has
never been 1 percent of the
federal budget
• Since Carter Admin. Welfare
spending has been reduced
• Incarceration increased by 442%
• 1990: 40% of Black men, ages 1835 in CA were under correctional
supervision
• The rate of incarcerated black
men tripled in only 12 years
• War on Drugs
• Targeting deindustrialize and
poor inner-cities
• Targeting non-violent offenses
more harshly
• Mandatory minimum laws
From Welfare State àPenal
State
Migration Waves & Crime Waves
• 2 great migrations impacted & triggered crime waves
• There are 2 types of crime waves
• 1) short-lived and mild
• 2) long-lasting and severe
• Statistics show violent crime rates of Black and European communities
were lower at the beginning of migration in the late 19th century
• Ex) murder rates by white people exceeded that of Black people in the north and
south before 1890 (Stuntz 2011, 17)
• Ex) Ireland was more peaceful in mid-19th century than US
European migration &
Growth of US Cities
• Late 19th – 20th century: Growth of American
cities is attributed to European migration
• 1860s: one-sixth live in cities and then onethird in 1890
• 1910: of the 8 largest cities, one-third of
population were foreign-born
Northern Migration
• 7 million African African Americans moved from the US South to
Northern cities in the first two-thirds of the 20th century
• Industrialization & factory labor
Measuring Statistics & crime rates historically
• Terms & crime definitions are change overtime
• Example: Homicide
• During & prior to 1920s: murder/homicide rates included vehicular homicides
(Stuntz 2011, 18)
• Statistic numbers are not neutral but must be investigated
• Statistical limits: limited information collected, questions asked &
lack of data on neighborhoods geographic & demographic
information and crime
Correlation v. Causation
• Rise in crime rates during 1960s in all sectors of the population
• Murder rate doubled from 1930s-1960s
• Black population in Northern cities increased in 1960s
• 1950s: murder rates are the same in cities as in the entire nation
• This ends by 1970s
• Baby Boom population reach adulthood by 1960s
• Causation in both directions: “if racism contributed to the crime wave, the
crime wave also caused a kind of racism – or at least, something that looks
very much like racism to its targets” (Stuntz 2011, 22)
• Example: The Racial Tax/Scarlet Letter of Being Black in America
European Migration, Crime Waves & Political
Backlashes
• Anti-vice crusade of early 20th century
• Mann Act of 1910: barred the interstate transportation of women for
“immoral purposes” like prostitution thought to be a vice of Catholic Irish
• The 18th Amendment: Prohibition
• The Immigration Act of 1924
• Nativism vs recent European immigrants
• Protestantism vs Catholicism
• Lack of political representation in local government
Black Migration, crime waves & Political
Backlashes
• Voting Restrictions in US South until 1965
• Lynching
• Jim crow segregation
• Lack of political representation of Black leadership
• War on Drug (1970s+)
• Ex) harsher & longer sentencing for Crack cocaine vs powder cocaine
• Black crime became a barrier to political campaigns
Black Crime Backlash: Impact
on Political Campaigns
• Willie Horton commercial
• Willie Horton 1988 Attack Ad (32 Seconds)
• https://www.youtube.com/watch?v=Io9KMS
SEZ0Y
3 Potential Explanations for Crime waves
• 1. Economic
• Jobs availability
• pay livable wages/for the cost of living
• provide opportunities for growth/meaningfulness
• Job discrimination
• Wartime economy
• Expanded opportunities for Black men and women
• Lower crime rates during WWI & WWII
• Crises
3 Potential Explanations for Crime waves
• 2. Histories of Punishments
• More prisons do not necessarily correlate to less violence
• 1950s-1970s : increase in crime rates & decreased incarceration rates
• Increasing imprisonment via mass incarceration did not reduce crime
• Example: murder rate increased 80 percent higher now than beginning of 20th
century (Stuntz 2011, 37)
• Less crime does not reduce punishment
• Example: NYC crime rates declined in 1990s despite increased prison population
rates
3 Potential Explanations for Crime waves
• 3. Legitimacy of Government
• Late 19th century: Political representation & positions of authority by
community leaders = decreased crime rates
• Example: Gilded Age (1870s-1900) Cops policed communities they
resided
• Example: Jury Nullification:
• Juries had more discretionary power to decide on the criminal intent on cases or
the justness of the law itself
Review/Recap
• Shifts in Crime have multiple factors
• Not demographic changes but also social, political and economic factors
• Careful of how read categories of “crime” historically compared to today
• The shift to a “law and order” society was a response to
economic, social and political crises
• Shifts in governing of crime involves perceived threats to crime &
increasingly chaos of population
• The shift to harsher penal system was a response to the decreased
legitimacy of the government’s right to rule
The Birth of the Modern Prison
Question
• What is the function of Jails and Prisons?
Main Ideas
• 1. The Modern Prison system is the effect of a changing social,
political and economic system.
• 2. Walnut Street Jail: Birthplace of Modern prison system in US
• Transformed from Workhouseà State Prison
Early Jails in Colonial America
•
•
•
•
•
Jails est. since 1635
Minimal
whipping & fines
Short/indefinite sentences
Expensive
• Jails existed alongside Workhouses
• Jails were initially for violent offenders & workhouses for debtors
• Distinctions became blurred during economic crises
• William Penn’s Great Laws (1682): “all prisons shall be workhouses for felons, vagrants, and loose,
abusive and idle persons…”
Workhouses / Houses of Correction
-Beggars
-wanderers
-idleness
-Petty thieves
-Dislocated workers
Poor Laws
• Elizabethan Poor law of 1601
• The Poor Law Amendment of
1834
• Criminalized pauperism, begging
& idleness
• Men, women & children
• Illegalized living outside wage
work
• foraging/begging
• Property privatization
• Feudalismà Capitalism
• Parishes were appointed as
overseers/supervisors of poor &
workhouses
The Walnut Street Jail, 1775, PA
Walnut Street Jail à Prison
• 1789: first state prison for any felon
convicted at least 12 months
• Convict labor
• County receives money to run prison
• 1790: constructed cell blocks for Solitary
confinement
• 1794: anyone convicted for any crime
(except murder) goes to Walnut Street
• Centralized State Apparatus
• Post American Revolution
P.A. Penal Reforms
• Great Laws of 1682: Puritan/Quaker experiment
• William Penn’s Great Laws (1682): “all prisons shall be workhouses
for felons, vagrants, and loose, abusive and idle persons…”
• British Criminal code of 1718: Transportation Act
• British put emphasis on ability of offender to reform in prison
• hard labor in workhouses as rehabilitation
Penal Reform
Post-Revolution
• Clause I: “That all men are born equally
free and independent, and have certain
natural, inherent and inalienable rights,
amongst which are…life and liberty,
(and the) acquiring, possessing and
protecting property…”
• 1786: Penalty of Hard labor
• Chain gangs, public works
• 1787: Constitution replaces Articles of
confederation
• 1788: Reform: Punishment by more
private or solitary labor
Penal Reform
Post-Revolution:
Debt
• 1781-1789: Foreclosures & Debt court
• 1786: Reform of Penal laws: “hard labor,
publicly and disgrace imposed”
• Shay’s Rebellion (1786-7), MA
• 1788: Reform by the Society was for
“punishment by more private & solitary
labor”
• separation of criminals & debtors, and
solitary confinement to hard labor (53)
• 1816: New York Society for the Prevention of
Pauperism est. first juvenile institution
From Workhouses to Debtor’s Prisons
• Early American Prisons contained Debtors 5-1
• 1833: Debt Prisons were formerly abolished in US
• Does Debt impact incarceration today?
• Let’s take a look at today’s prisons & significance of Debt
• https://finesandfeesjusticecenter.org/articles/municipal-violations-johnoliver/
3 Main Processes that Contributed to
Development of State Prisons
1. British Legacy of Punishment
• Transportation Act 1718
• Public spectacle of punishment
• Workhouses & poor laws (1600)
2. Quaker Ideals
• William Penn’s “Great Experiment”
• ‘prisons shall be workhouses,’
• Rehabilitation of prisons via work, learning a trade, isolation, religious services
3. Economic Crisis
• Money became scarce
• Debt prisons/jails would have to take two-thirds of community
Solitary Confinement Today
• Estimated 80,000 people live in isolation in a day
• 100,000 are released directed from solitary back into the community
• Inmates are separated from the general population
• held in their cells for 22 – 24 hours/ day
• for at least 15 consecutive days
Solitary Confinement
“I was basically their test case, a guy who they’d thrown away but were now
picking up out of the garbage can. When they came to my cell, I could barely
speak. In my head, I knew the words I was saying, and I thought I was speaking
them, but they were coming out as garbled because I hadn’t talked to anyone
for so long. My vocal chords were weak. I literally begged them, please don’t
make me come out of my shell. It took them more than seven hours to get me
to come out. When I had to pack up my things, I didn’t know where to begin, so
I just started spinning in circles. One of the officers came in and helped roll up
my property. He said, “Just keep your eyes closed, and hold onto me.
-Frank de Palma
• “I got out of prison on Dec. 21, 2018, after serving 42 years, 9 months and
15 days. I wear a smile on my face, but there’s a war going on inside.”
• “Sometimes I will go into the bathroom to relax. When you go in there and
turn the light off, it’s completely dark. You can’t see nothing. And I just
… sigh. I feel so calm and peaceful. Isn’t that sad? That I feel at home, in
blackness? Something’s wrong there. And that bothers me. I feel like an
alien. It’s like I have so much conditioning from all those years where I
didn’t think, I just acted instinctively. Now I’m out here trying to repattern the grooves in my brain. Even now, there’s still a part of me that
wants that abyss. Where there’s no thought, no feeling. I just want to be
gone, away from everybody and everything. And that’s where I feel safe.
Prison has been my whole life. Am I too damaged to ever belong? Am I
gonna make it out here? It’s a scary feeling.
Let’s watch
• https://www.pbs.org/wgbh/frontline/film/last-days-of-solitary/
Death Row
• Podcast: Earhustle
• San Quentin, CA
• 700 guys currently wait in
Adjustment center
• Last execution in 2006
• Described as a Prison within
a Prison
• “I was sentenced to death,
not rehabilitation”
Questions
• Are the current corrections facilities providing the tools for rehabilitation? Why
or why not?
• What does rehabilitation look like in an ideal world?
Recap/Review
• 1. The Prison system as State apparatus
• Centralized & consolidation of power of the US after the American revolution
• Reflects changing social, political & economic forces
• Especially coercive during moments of crises
• 2. Walnut Street Jail
• Workhouseà State Prison in US
• Disproportionately Criminalizes those with financial burden
• 3. Solitary Confinement and Death Row
• Provides limited-to-no resources for rehabilitation
• Lasting psychological & physical effects (suicide)
5
Criminology and Race
Reading
• Muhammad, Khalil Gibran. (2010). The Condemnation of
Blackness: Race, Crime and the Making of Modern Urban
America. Chapter 2: “Writing Crime into Race.”
Main Questions
• What historical factors contributed to the criminalization of Black
people in the US?
• How has Blackness evolved over time in the U.S?
• What narratives have impact this discourse?
• How and in what pace would newly freed blacks be incorporated into
US society Postbellum?
• How has scientific inquiry & statistical research impact our
understanding of race relations?
Learning Outcomes
•The Transition of Defining “Blackness” in the US
•National Debates Post-Antebellum, 1890s-1940s:
•Slavery à Emancipation
•Propertyà Personhood
•“Negro Problem” à “Crime Problem”
•Enslaved, Inferior, savage à criminal, dangerous,
The “Negro Problem” à Criminal Problem
• National discourse: “negro problem”
• Reframed as Problem of the “Colorline” (Du Bois)
• “We believe that the first and greatest stop toward the settlement of
the present friction between the races-commonly called the Negro
Problem- lies in the correction of the immortality, crime and laziness
among Negroes themselves, which still remains as a heritage from
slavery. We believe that only earnest and long continued efforts on
our own part can cure these social ills.”
• (Du Bois 1987, as cited in Muhammad 2010 67)
The “Negro Problem” à Criminal Problem
• New Policies of Anti-discrimination vs. old ideology of white supremacy
• 13th Amendment
• 14th Amendment
• 15th Amendment
Frederick Hoffman
• German immigrant
• Lived in the US South for 8 years
• Collected Statistical data on black mortality &
criminality with book:
• Race Traits and Tendencies of the American
Negro (1896)
• Premiered same year of Plessy v Ferguson
• Signing segregation into law
• “ Separate but Equal”
• Statistician & actuary data used at the
Prudential Insurance company
th
19
Century Mortality Rates
• 1860s & 1890s: Suicide rates increased nationally & in cities
• Hoffman’s Bidirectional Interpretation:
• black mortality rates was a race problem
• (natural inferiority measured in the body)
• white mortality was a social problem
• which needed state intervention
• Solution:
• Let Black people die (Social Darwinism & biological inferiority)
• Intervene and help white people with financial and social assistance
th
19
Century Mortality Rates
“Hoffman interpreted whites’ self-destructive behavior as a consequence of
a diseased society, not of a ‘diseased manhood and womanhood.’ White
criminality was a response to economic inequality rather than a response to
a ‘race proclivity.’” (Muhammad 2010, 41)
th
19
Century Mortality Rates
• Factors NOT considered
•
•
•
•
•
•
industrialized depressions (cyclical)
Class differences
Isolation/ alienation
Discriminatory policies that impacted health
environmental differences/living conditions
Omitted mortality rates of recent European Immigrants living in Slums
Mortality Races and Insurance Distribution
• 1880s: Anti-discrimination laws
• Statistical data appears neutral and without racial bias
• Prudential Insurance Company used Hoffman’s mortality stats for
profits
• Life Insurance:
• black mortality data showed that blacks died 10-12 years earlier
• Home insurance:
• black men and women were incarcerated at high rates at 46% and 61% for
arson and property offenses
Black Criminality Emerges in Statistical Data
• 1893: first criminology book does not include Black stats
• 1896: Carroll Wright links black criminality with unemployment and
exploitation of unskilled & uneducated laborers
• Argue: crime arose as a natural consequence of economic crises during
transitions
• feudalism à wage labor
• from slavery à freedom
• Hoffman adds that the government must intervene on health of
White Americans in order to prevent crime
Black Mortality & Incarceration Rates:
North vs South
• South is associated with slave economy & racial barriers to crime &
mortality rates
• North is associated with liberal politics & racial equality
• incarceration stats in northern cities used to justify black people’s
“natural capacity” for deviancy & inferiority
• Blacks were describes as unrestricted & freed from discrimination
• No excuse for criminality
Significance of Hoffman’s statistical data?
• redefined the conditions of black people a scientific problem that
needs more research
• Social Darwinism reproduced
Social Darwinism
• 1890s
• Adapted from
Darwin’s theory:
“survival of the
fittest”
• Applied to
race/ethnicity
• Existed alongside
Lombroso’s
Positivism science
• Measurability of
deviancy on the body
Social Darwinist cartoon from 1899, showing white Americans and Europeans carrying racialized peoples towards civilization
Significance of Hoffman’s statistical data?
• Social Darwinism reproduced as scientific research
• Gradual extinction of black Americans
• Unequal & Discriminatory distribution of services & funding
• Social abandonment by the State
•
• “He asked rhetorically, why waste the nation’s resources on a
‘vanishing race’?”
W.E.B. Du Bois
• The Philadelphia Negro (1899)
• The Souls of Black Folks (1903)
• American Sociologist
• Trained by Max Weber
• Humboldt University of Berlin
• First black PhD, Harvard University
Du Bois: Double-Consciousness
1. No true self-consciousness
2. Looking at oneself through the eyes of another
3. Twoness: an American & a Negro
• “He simply wishes to make it possible for a man to be both a Negro and an
American, without being cursed and spit upon by his fellows, without
having the doors of Opportunity closed roughly in his face.”
• -Du Bois. The Souls of Black Folk. 1903.
Du Bois: Double-Consciousness
• Black Americans, they are forced to see themselves through the eyes of
whites, as well as having their own point of view–a phenomenon he calls
“Double Consciousness.”
• The double-aimed struggle of the black artisan
Double burden of fighting racism and trying to fight poverty (p.3)
• “This waste of double aims, this seeking to satisfy two unreconciled ideals,
has wrought sad havoc with the courage and faith and deeds of ten
thousand thousand people…”
Du Bois
• Crime and violence = response to racial oppression
• Called crime: “a sinister index of social degradation and struggle” (76)
• Suggested remedies be equal on all classes
• “White criminality was society’s problem, but black criminality was black
people’s problem. Such thinking contributed to discriminatory social work
approaches and crime fighting policies in black communities, with devastating
consequences including the worsening of social conditions. Among whites,
struggling neighborhoods were considered a cause of crime and a reason to
intervene. Among blacks, they were considered a sign of pathology and a
reason for neglect
Du Bois’ Solution to Black Crime
• linked with the problem of the colorline & ongoing discrimination and
oppression
• Recommendations for ending black crime
• 1) establish better homes
• 2) educate children
• 3)inculcate faithful and honest work honest work ethic despite the
menial job
• 4) associate with decent people
• 5) unite with whites Georgians to open a juvenile reformatory (73) to
prevent further criminalization
Ida B Wells
• 1st black reformer to link Stats & civilization in
order to defend the race against criminality
• Progressive crime prevention for blacks that
suffered
1) Labor-market discrimination
2) Stigma of criminality
3) Segregation of white and immigrant only social
welfare agencies (59)
• The Clansman by
Thomas Dixon, Jr.
• The birth of a Nation
(1915) – movie
adaptation of book
Questions
• What is the significance of Hoffman’s interpretations
today?
• Are his statistics on crime rates still relevant today?
Why or why not?
• Can we think of instances where interpretation of
statistical data is impacted based on race/ethnicity
and gender distinctions?
Recap
• 1890S: Many White writers hoped to fixed the “negro problem” & save the
nation’s division by writing race into crime
• Origins of Crime problem: transition from slavery à freedom
• Different Solutions based on Race
• Supported the emergence of Jim Crow era of lynching in the South & hypercriminalization, exploitation and abandonment in the north
• Blackness transitions:
• From the negro problem à crime problem
• Black mortality à inferiority à criminality
6:
Scientific Racism and Criminalization
Key Concepts
• Evolutionism
• Social Darwinism
• Scientific Racism
• Eugenics
Main Questions
1. Why did race become measured in the brain/head? What prompted this
research?
What was the dominant ideology of the mid-19th century?
2. How did dominant ideology contribute to research conducted and
interpretations?
3. “ Did a priori commitment to ranking fashion the ”scientific” questions asked
and even the data gathered to support a foreordained conclusion?”(Gould 63)
Main Argument
Main Contributions
• 1. Scientific racists & sexists often label biologically inferiority to an already
disadvantaged group
• 2. A prior prejudice: not numerical data, determines findings/conclusions
• 3. Numbers & graphs do not get promoted as official based on precision of
measurements, sample sizes nor complexity by repetition
• serious flaws in data collection & design
• 4. Craniometry was not confined to academic inquiry/discussions but
gained popular press
19th Century
• Monogenist vs. Polygenists:
• Evolution + quantification (#s & measurements) = Scientific
Racism
From Evolutionism
à Scientific Racism
• Data Collection on craniometry/measurement of skull & its
contents
• Race & Gender are treated as different/distinct species
• Survival of the fittest
• Supported dominate prejudice
• Targeted already subordinated groups (Women, black
people & the poor)
Scientific Racisms: Measuring the Genus
• Robert Bennett Bean
• VA Physician, 1906
• Published in popular
magazines
• Measured Genus in the
brain
• Intelligence linked to
size of genu
Scientific Racism:
Genus
• Intelligence based on size of genu
• measures olfactory
• Women have smaller genus than men
• Whites have larger genus than black
• Brain size is no different racially
• ignored by Bean
• Sample of brains were donated/unclaimed
• lower class whites have slightly larger brain size than
“better class negro” (111)
• Experiment retested by mentor & found
inconsistent
Paul Broca
1824-1880: Professor of Clinical Surgery
Founded Anthropological Society of Paris in 1859
Measured cranial capacity
Weighted brain with his own hand after autopsies
Assumption: human races can be ranked in linear scale
of mental worth
• So all measurements assumed to relay hierarchies
• Numerical data is accurate but selectively used for
favored conclusion
• Manipulated unconsciously
• Linked inferiority to environment & not permanent
•
•
•
•
•
Broca: Scientific Racism
• Face positioning
• prognathous vs orthognathous
• Forearm: linked to characteristics of ape
• Inconsistencies: Eskimo (Inuit) & Australian Aboriginals & Hottentots
• Brain size linked inferiority to environment & not permanent
• Ex) women are less intelligent because their brains are underused
• Consistencies in Brain Size: Asian and Mongolian groups (118)
• Compared African to European Races (colorline)
• Certain characteristics (size, weight, anterior localization) of the brain show capacity for
Broca’s cortical localization of function &
Cranial Index ‘
Factors selectively used by scientists
• Socio-economic class of the bodies
• Storage of heads
• Body mass/size
• Diet/nutrition
• Age of death
• Cause of death
• Use based on needs of society
• Any exceptions to a priori conclusions
Impact of Scientific Racism
• Promotes scientific Racism or seemingly neutral Justification for
exploitation
• Question: Can you think of Examples that show the impact of
scientific studies?
Eugenics
Exploitation of bodies: • https://www.youtube.com/watch?v=z7NZmvF
6Bzs
Hottentot Venus
• Died in Paris
Sarah Baartma
• Body measured by Georges Cuvier
• “The human body can be measured in a thousand ways, Any
investigator, convinced beforehand of a group’s inferiority, can select
a small set of measures to illustrate its greater affinity with apes. (This
procedure, of course, would work equally well for white males though
no one made the attempt. White people, for example, have thin lipsa property shared with chimpanzees-while most black Africans have
thicker, consequently more ‘human,’ lips).” (Gould 118)
Recap/Review
• 1. Scientific racists & sexists often label biologically inferiority to an already
disadvantaged group
• 2. A prior prejudice: not numerical data, determines findings/conclusions
•
• 3. Numbers & graphs do not get promoted as official based on precision of
measurements, sample sizes nor complexity by repetition
• serious flaws in data collection & design
• 4. Craniometry was not confined to academic inquiry/discussions but
gained popular press
Crime Families
6
Governing Domestic Relations Through Crime
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
T
he dominant modern metaphors of the family usually cast it against
the marketplace as a “haven in a heartless world” (Lasch 1977), although more recently sociologists have questioned the wisdom that the
family is a less competitive space than the workplace (Hochschild 1997).
Indeed, the family and the workplace have both become concentrated
zones of concern about crime, and the responsibility for governing it.
Families as we idealize them are crime free, bound by lawful and natural
bonds of mutual protection. If the family is crime free by definition, it is
not secure; in fact, it is the ideal space for crime to invade. Here are consumer goods galore. Here are women and young people vulnerable to
abuse and sexual aggression. Here are family secrets stored on computer
hard drives and in filing cabinets.
The role of crime in the governance of the family has virtually flipped
in the last two generations. At one time, truly violent conduct by parents
over children, or adult men over women and girls in the family, was largely
immune from the force of the criminal law out of deference for what legal
decision makers—legislators, judges, prosecutors, and police officers—
articulated as the special needs of family governance (Seigel 1996). Today,
the problem of crime, starting with violence but including many other
kinds of acts, has extended the institutional and metaphoric force of the
criminal law into families with a scope and intensity at least as great, if not
greater, than that of the marketplace. The haven, with its implication of
privacy and refuge, is now a zone in which potential responsibility for
criminal action is even greater than in other social contexts.
177
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
178
Governing Through Crime
Divorce law represents another striking reversal on the axis of crime.
Before the era of “no-fault” divorce, divorce law mimicked criminal law
with its claims of wrongdoing, adultery, abandonment, and cruelty. These
rules had the clear intent to mobilize some of the stigmatizing and humiliating features of criminal prosecution to bear upon those violating marital norms, but with few real-world links between the drama of the divorce
court and the force of police or prisons. Today, in contrast, the claims of
abuse that emerge in divorce, especially disputes concerning the custody
of children, amount to real crimes—e.g., drug use, sexual abuse, and domestic violence—that are taken quite seriously by the state (Kay 1987).
Even the intact family is treated as a locus of suspicions about crime
that require other institutions interacting with the family to maintain surveillance and intervention. A whole panoply of helping professionals developed around the family in the nineteenth century, including doctors,
social workers, and teachers, in the name of assuring eugenic, physical, and
mental health in a process one leading history refers to as the “policing of
families” (Donzelot 1979). Today, professionals involved in the servicing of
families find themselves acting as extensions of the actual police and the
criminal justice system for which police operate as the gatekeepers.
When we carefully examine how crime becomes a problem for us in
the roles we occupy in the domestic household, as parents, spouses/partners,
and children/other dependents, we see not simply a growing role for traditional criminal justice agencies over the family, but an intertwining of
crime control and family governance responsibilities as well.
As a parent, I am mobilized by crime in a number of different but overlapping ways. Sometimes I am encouraged to fulfill my role as the front-line
protector of my children and partner against criminal assault by being attentive to the whereabouts of sex offenders who live in my “community.” Sometimes I am viewed as a potential criminal; as a man, a husband, and a father,
I stand at some calculable risk of assaulting my wife and children. I may also
function as an enabler to crime, allowing my kids to join gangs, tolerating
their drug abuse, or permitting them to ignore school attendance laws.
In this regard, contemporary American adults, especially parents, find
themselves under a moral and sometimes legal mandate to manage crime
risks in their domestic domain. Not surprisingly, Americans have become
major consumers of security technologies, expertise, and services. Institutions and organizations that address the family (e.g., schools, churches,
medical providers, and insurers) also find these crime pathways becoming
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Governing Domestic Relations Through Crime
179
a larger part of their mandate; some of which will be discussed in other
chapters. Increasingly, crime provides the framework by which oversight
of the family is integrated into these other, noncrime-oriented institutions.
Crime Begins at Home
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Story 1
Consider the real-life situation of Al and Pammy (not their real names), an
upper-class couple with two young children. Pammy, who had moved to
the United States to marry Al, was depressed and missed her family in
South Africa a great deal. Sometimes she would drink too much, and at
those times she and Al would fight. On one occasion, Pammy slapped Al
and threw several dishes at him while the children were sitting some distance away, safe but in visual range. Al, uncertain of what to do and afraid
that he might frighten the children if he tried to physically restrain
Pammy, called 911. Although Pammy had calmed down by the time the police arrived, both Al and Pammy found themselves in a complex legal
nightmare that they could do little to control.
First, the policy of the police in their urban county was to make an arrest whenever they have probable cause to believe that an assault has been
committed in the home, even if the victim does not want the arrest to take
place. The policy is gender neutral, and it did not matter that it was Pammy,
not Al, who was acting out. Nor did it matter that no actual harm had been
done. Violence is broadly defined to include reckless acts that could cause
harm. Al and Pammy knew a lawyer who quickly arranged for Pammy to
be released on bail, but under a policy designed to deter domestic violence,
she had to spend a night in jail while the “victim,” Al, was given a window of
time to seek a legal restraining order, which he chose not to pursue.
The district attorney’s office in this urban county has a no-drop policy for domestic violence, a policy designed to deal with the historic pattern of domestic violence victims dropping charges as part of the cycle of
abuse. Using the police report, the prosecutor can win a conviction for domestic violence even when the victim spouse exercises his or her statutory
privilege not to give testimony against the offending spouse. Under an evidentiary rule known as the “excited utterance doctrine,” many courts allow police to testify to what they were initially told by the victim when they
called 911 or when the police first showed up.
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
180
Governing Through Crime
Due to careful work by Al and Pammy’s lawyer, however, the district
attorney agreed to drop charges in exchange for Pammy’s completion of a
program of treatment for batterers. If the program is completed, the charge
of domestic violence is expunged from the record. The couple also agreed
to a period of probation, during which a probation officer, specially trained
in domestic violence work, would make frequent unannounced visits to
their house at stressful times, such as before dinner and during breakfast.
With their private lawyer and considerable resources, Al and Pammy
might have prevailed at trial, but there was substantial risk that she might
have been convicted even without Al testifying against her. Had she been
convicted in some states, she would face a mandatory jail term of at least
five days even for a first offense, followed by probation and treatment. She
would also have faced a growing number of civil disabilities, including loss
of the right to own a firearm. More important for Pammy, who has lived
in the United States for five years as a legal resident alien without naturalizing, harsh changes in immigration law in the 1990s define domestic violence as an “aggravated felony” that requires mandatory deportation, even
for those with significant ties in this country, like a husband and young
children, and detention until deportation can be affected.
The above scenario is not meant to suggest the typical case of domestic
violence in America. One might just as well describe a case that ends in the
murder of a woman who had sought police help on previous occasions (as
did Nicole Brown Simpson) or even obtained a restraining order that was
ignored by her obsessed attacker. In both kinds of cases, however, a growing
set of criminal justice responses now dominate public response to the threat
of violence between adults in families. Domestic violence has emerged over
the last three decades as one of the clearest cases where a civil rights movement has turned to criminalization as a primary tool of social justice.
Today, feminist legal scholars who fought to get criminal justice agencies to take domestic violence seriously are now in the forefront of those
questioning the process of criminalization. Elizabeth M. Schneider, a pioneering legal advocate for victims and scholar of legal doctrines and practices concerning domestic violence, recently noted with concern the growing role that criminal justice agencies play in defining the public agenda for
domestic violence. In her view, this development puts “a greater emphasis
on criminalization” than on objectives that feminists would rather emphasize in aiding domestic violence victims to recover and move on including
“women’s employment, childcare or welfare” (Schneider 2001, 244). Wife
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Governing Domestic Relations Through Crime
181
beatings and killings have become a political problem for the state at a number of times in our history. Each time, they served as a privileged location for
the law to articulate a general model of family governance and to problematize the conduct of specific groups of people—from the late nineteenth century on, mainly working-class and African American men; Siegel 1996). But
although crime was the occasion for legal transformation, the scholarship of
legal historian Reva Siegel shows that the new ways of talking and acting on
families produced by these controversies tended to renormalize family violence within an updated framework of family governance. To the extent the
state offered any strategies to actually repress family violence, it was through
the general aspiration to stabilize the conditions of the lower classes of industrial society, presumed to be the locus of any real problem. It was not
crime, but degraded social practices and conditions, that needed addressing.
The leading authorities on the common law, especially the influential
Blackstone, maintained that husbands had privilege and duty to “rule and
chastise” wives in which moderate corporal punishment was no breach of
law or civil duty. Violence for other purposes, or excessive violence constituting a danger of serious bodily harm or death, was not privileged and thus,
strictly speaking, could not be a defense to charges of assault or manslaughter. By the last third of the nineteenth century, courts all over the United
States took pains to emphasize that, whatever its former scope, the doctrine of chastisement was no longer operative. Henceforth, any assault that
would constitute a crime if committed against a woman by a stranger
would also constitute a crime if committed by her husband.1
Yet long after a formal legal immunity was abolished, a de facto regime
of inattention through police and prosecutorial discretion remained a
dominant fact of American domestic life through the 1980s. Siegel shows
that spousal violence continued to be sheltered by courts under a new theory stressing the importance of privacy. In an oft-repeated formula, courts
reasoned that the publicity and shame produced by a criminal trial would
be more damaging to the prospects of the marriage’s survival than the
crime itself. The core idea here was that “family privacy” was an essential
condition for the family’s well-being and that legal intervention was inevitably destructive of it.
Today, in contrast, crime provides both the occasion for and logic of
state intervention in the family. As in past periods of reform described by
Siegel, the contemporary reconceptualization of the governmental interests at stake in domestic violence is oriented toward leaving the structural
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
182
Governing Through Crime
tensions within the gendered order of both the market and the family out
of the picture. As a bus campaign in Ann Arbor, Michigan, during the late
1990s put it: “domestic violence is crime.” What is needed, we are told today, is to recognize family crime as crime and treat it as such. The broader
features of society that make women less able to use effective self-help
against abusive partners, including the special responsibility women generally have for children, are cut off from these discussions altogether. Most
forms of status inequality seem in danger of being reproduced in this new
era of heavy criminalization (Mills 2003). Poor and minority people—the
historically discriminated against—find themselves on the worst end of all
the changes driven by governing through crime.2
The denial of equality to women in law enforcement practice and prosecution became unsustainable in an era in which victimization by crime
was being defined as the most important feature of government’s relationship to its subjects. By the 1970s and 1980s, the second-wave feminist strategy of using government’s failed response to the victimization of women as
a prime focus of mobilization fell exactly in line with attacks on the liberal
welfare state coming from rights-oriented property owners. This crossideological alignment contributed to the conversion of crime control into a
general schema of governance of the family (Burt & Estep). During this period, second-wave feminists who criticized state policies of nonintervention in domestic violence cases as a central pillar of patriarchy in otherwise
modern societies began to see a response in state-level changes in criminal
law policies (Dobash & Dobash 1992; Daley 1994). The then-dominant approach of police departments and individual officers to treat domestic violence as crime only to the extent that it became a “public” disorder revealed
a gendered government not captured by “unequal benefits” battles that had
dominated first-wave feminism in the 1960s and 1970s. Here, government
was not blindly adopting a male norm that disadvantaged women trying to
be different by competing with men; here, government was consciously
playing a part in maintaining the violent imposition of male dominance
within the household in a way that endangered the lives of women attempting to maintain the “ordinary” functions of the family.
The legislative pathway to success for the feminist movement regarding
battered women charts its independence from, but increasing integration
with, the larger agenda of governing America through crime. The first public
face of the movement in the 1970s emerged with the issue of shelters where
battered women could seek refuge (Dobash & Dobash 1992, 36). The first
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Governing Domestic Relations Through Crime
183
federal legislative efforts to nationalize domestic violence was constructed as
a welfare and health problem, and supposed to be lodged in the Department
of Health, Education, and Welfare (later changed to Health and Human Services) (137). At a time the Republican Party was devoted to defeating the
Equal Rights Amendment, these early efforts fizzled in the face of growing
GOP resistance to anything that might seem to empower feminism.
Although hidden as an amendment to a bill on child abuse, the federal
government in the 1980s began to promote and finance the spread of domestic violence issues and expertise. Signed by President Reagan as part of
the Victims of Crime Act of 1984, the law provided about $8 million a year
to be divided between victim service programs and police training programs (Dobash & Dobash 1992, 140).
Domestic Violence Policies
More than a quarter century after the first efforts to win funding for shelters
and obtain recognition for domestic violence victims, the criminal justice
system in most states now reflects a new consensus that domestic violence of
any kind is a crime, and one best deterred by quick sanctions against the
violator. Let us briefly review the complex of legal policies at work here.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Mandatory Arrest
More than a dozen states and many more municipalities have adopted
policies mandating that police make an arrest when they have probable
cause to believe that an act of domestic violence has occurred (Mills 1999).
This new vision quickly led to successful lawsuits on behalf of women injured by their spouses after police had exercised their discretion not to
make an arrest (Dobash & Dobash 1992, 198). Mandatory arrest policies
have become popular with governors and state legislatures that would
reject feminism in other respects. They permit legislators to vote with organized women’s rights and feminist groups supporting a tough law enforcement approach that reflects a concern for victims as a group, even if it
requires overriding the wishes of individual victims. Despite growing disputes among feminists themselves as to the costs and benefits of mandatory arrests, legislative support is almost universal. Laws recognizing the
interests of same-sex couples would generally spark resistance from conservative legislators, but the crime focus allows even those legislators to
support mandatory arrest laws.
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
184
Governing Through Crime
Statutory Pressure on Prosecutors
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
These have followed from mandatory arrest policies in a way familiar in
the spread of crime legislation generally (Ford & Regoli 1993). Once discretion in some government function is associated with leniency toward
criminals and increased risks for victims, it becomes illegitimate at every
level of that system. Prosecution policies are fewer and generally leave
more discretion in the hands of prosecutors than do police policies. Indeed, a policy that stripped prosecutors of all discretion to charge might
run afoul of the separation-of-powers doctrine (Hanna 1996). States have
taken steps to encourage prosecution without directly requiring it, as, for
example, in the following Florida statute:
Each state attorney shall develop special units or assign prosecutors to specialize in the prosecution of domestic violence cases,
but such specialization need not be an exclusive area of duty assignment. These prosecutors, specializing in domestic violence
cases, and their support staff shall receive training in domestic
violence issues.
It is the intent of the Legislature that domestic violence be
treated as a criminal act rather than a private matter. For that
reason, criminal prosecution shall be the favored method of enforcing compliance with injunctions for protection against domestic violence as both length and severity of sentence for those
found to have accountability of perpetrators. . . . The state attorney in each circuit shall adopt a pro-prosecution policy for acts
of domestic violence, as defined in s. 741.28 and an intake policy
and procedures coordinated with the clerk of court for violations of injunctions for protection against domestic violence.
The filing, nonfiling, or diversion of criminal charges, and the
prosecution of violations of injunctions for protection against
domestic violence by the state attorney, shall be determined by
these specialized prosecutors over the objection of the victim, if
necessary.3
The Florida policy is both less and more than a mandatory prosecution policy. It clearly leaves prosecutors with discretion to file or not file
charges, or to seek some diversion arrangement. The mention of the victim here is noteworthy. At face value, the provision clarifies the authority
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Governing Domestic Relations Through Crime
185
of the prosecutor to make a decision even if it goes against the wishes of
the victim. This may seem to diminish the victim, and indeed it is controversial precisely on that ground. On the other hand, the prosecutor generally has a well-understood power (quite apart from this statute) to file
whatever charges he or she deems appropriate and sustainable regardless
of the victim’s wishes. Thus, what makes this passage striking is that the
law acknowledges the victim and apologetically frames the prosecutor’s
normal power as an extreme one of last resort.4
The law takes the hitherto unusual step of declaring as a matter of legislative “intent” that domestic violence be treated as a “criminal act.” In fact
this brings Florida into compliance with the grant requirements under the
federal Violence Against Women Act. It also provides a striking example of
the process described in chapter 3 of the legislature identifying itself directly with the aggrieved victim’s demand for criminal justice. Crime legislation since the 1960s has systematically conflated victims as a class with
the political community itself and the legislative body. Like the victims, the
Florida legislature itself is limited in its ability to compel prosecutors to
file charges, but its right to enter into the process rhetorically is now unchallenged.
One way to further this hardening of the crime approach the law
adopts is to create a special interest group, within the prosecution function, oriented toward domestic violence and its victims. It is these “specialist” prosecutors, not any representative of the people, who are empowered
to exercise discretion. A further unquoted section of the law requires the
prosecutor to undertake a “thorough investigation of the defendant’s history,” and that information is to be made available to the court at the time
of the defendant’s first appearance. These steps assure that the inevitable
discretion remaining with prosecutors and judges to not pursue criminal
charges, or seek maximum custody over the defendant, will be made
against a record that can be reviewed ex post, meaning that prosecutors
and judges may later have to account for why they did not act.
Mandatory Incarceration
The latest wave of legislation regarding punishment of people convicted in
domestic violence cases requires short but mandatory jail terms for firsttime convictions. The idea of short but mandatory jail terms for offenses
that have a long history of being taken less than seriously by the police
and the public was popularized by the campaign throughout the 1970s to
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
186
Governing Through Crime
make drunk driving a serious crime. Some states now require first-time
DUI offenders to spend a short time in jail. These programs also borrow
from the popularity of boot camps and “shock probation” programs, with
their promise of using a short but sharp penal shock to the system to provoke major individual transformation. All of these reflect the status of incarceration as a government solution for problems.
Domestic Violence Courts
Domestic violence charges are increasingly being heard in specialized courts
created to deal with domestic violence exclusively. Advocates have promoted
the idea that such courts allow considerable expertise to be built up among
the judges and prosecutors assigned to them (Winnick 2000; Lederman &
Brown 2000). Critics, generally in the defense bar, fear that such expertise
and advocacy will compromise traditional values of fairness and neutrality
in adjudication. The new courts tend to combine criminal and civil powers
permitting them to issue protection orders and initiate criminal process.
Based simply on a complaint from a self-defined victim, with no hearing or
preliminary investigation, the domestic violence court can, and does, issue
civil orders barring an alleged violator from returning to his or her home.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Children as Domestic Violence Victims
Children have also emerged as an important political subject of domestic
violence (Coker 2001, 835). Since the mid-1990s, the federal government
has sponsored both research into the implications of domestic violence for
children and grants for programs aimed at addressing these effects. As a
recent publication of the Department of Justice framed the issue:
Throughout the United States, millions of children are exposed
to violence—current estimates indicate that as many as 10 million children have witnessed or been victims of violence in their
homes or communities. Children’s exposure to violence has been
significantly linked with increased depression, anxiety, anger,
and alcohol and drug abuse and with decreased academic
achievement. In addition, approximately 2 million adolescents
ages 12–17 appear to have suffered from post traumatic stress
disorder. (Kracke 2001a)
In a subsequent publication of the same agency, the question was framed
as to how often domestic violence and “child maltreatment” go on concur-
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Governing Domestic Relations Through Crime
187
rently. The research cited suggested that “these behaviors co-occur” in 30
percent to 60 percent of the families presenting with domestic violence
(Kracke 2001b).
The focus on the link between domestic violence and child abuse exemplifies the way the problem of domestic violence is generalized into a
broader schema relevant to the whole family.
First, the status of domestic violence as a serious crime of violence has
been hardened by the way it is talked about, counted, and acted upon. Second, having established the unambiguous quality of domestic violence as
crime requiring crime control solutions, that crime is shown to be a driving
force behind a host of the most serious and intractable social problems afflicting our youth. Third, the victim base for that crime constellation is extended beyond the family to the community itself, marking the entire governable space of the social scheme as a grid of crime effects. This is marked
by the active “collaboration” between the U.S. Department of Justice (and
four of its numerous crime or victim-centered subagencies) with the U.S.
Department of Health and Human Services (and four of its subagencies
focused on children, families, and injury prevention). Fourth, federal responses to this “problem” take the form of research and programming integrated with political advocacy into a strategy that self-consciously blurs the
line between program evaluation and program promotion, between responding to local demands for crime control and mobilizing them.
The battle over domestic violence began at the state level but became
a national issue in 1994 when Congress adopted the Violence Against
Women Act as part of its gargantuan 1994 Violent Crime Control and Law
Enforcement Act (see discussion in chapter 3). The Violence Against Women
Act was first introduced in 1990 by Senator Joseph Biden. Although it did
not become law in its first year, it continued to build support through the
explosive response to Anita Hill’s accusations of sexual harassment against
Clarence Thomas and by charges that O. J. Simpson had murdered his wife
in a classic act of domestic violence. Though the Supreme Court struck
down a small portion of the act in United States v. Morrison,5 most of it
has gone unchallenged, including portions enhancing penalties for repeat
offenders and instructing the U.S. Sentencing Commission to remove disparities that provide lighter sentences for perpetrators intimate with the
victim than for perpetrators who are strangers.
The law also introduced into federal law the term “survivor” to describe domestic violence victims, and created new grants for state and
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
188
Governing Through Crime
local programs aimed at combating domestic violence in the style of the
funding provisions of the 1968 Omnibus Safe Streets and Crime Control
Act (see chapter 3). Some grants specifically rewarded adoption of tough
new policies such as mandatory arrest and no-drop prosecutions (Gleason
2001).
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Feminist Critiques of Domestic Violence Policy
The emergence of domestic violence as a contemporary crime issue is in
large part a result of the work of second-wave feminist activists and their
allies in law and the social sciences, and may in fact represent one of the
signal triumphs of that generation of feminism.
Since mandatory policies went into operation in the 1990s, a new wave
of feminist criticism of this trend has developed that focuses on three
issues.
First, how effectively does a hardening of the criminal justice response
to domestic violence protect women from repeat violence? Second, how
does the investment of the domestic violence victim as a crime victim advance the equality of women as political subjects more generally? Third,
does the construction of masculine domination as criminal violence alter
the larger ecology of cultural support for that domination? I want to provide brief examples of these questions—not to suggest an answer (they are,
after all, vastly complicated empirical and theoretical questions) but to
place them in a dialogue with governing through crime more generally.
The question of whether more criminalization is actually reducing violence for women remains a prime one for advocates for victims of domestic violence (Mills 2003). The mistrust of the criminal justice system as
a major part of the domestic violence problem remains strong even in the
era of reform. Advocates have expected that strong laws will be ignored or
even enforced against the women that they were intended to help (Pence &
Shepard 1999, 7). Recent empirical research has also called into question
the specific deterrent effects of arrest on batterers. This evidence suggests
that arrest may even be counterproductive precisely in those communities
of poverty and high unemployment where many of the most vulnerable
victims are also situated (7). There is also a haunting fear that the women
coerced into participating in the criminal justice process will find themselves with even less power over their lives than when the system ignored
their batterer. This is particularly true for minority communities in which
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Governing Domestic Relations Through Crime
189
rates for arrests and incarceration of men and older boys are already high
(Coker 2001).
Sociolegal scholars studying the domestic violence movement have long
predicted that the movement’s success at mobilizing state action through
tougher criminal justice enforcement comes with a reciprocal involvement
in dispersing and embedding criminal justice system values and tactics.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Once encapsulated within the criminal justice system, reform
movements must inevitably serve the needs of that system and
potentially assist its expansion into more areas of civil society.
The CJS [criminal justice system] may embrace the movement
and yet subvert its demands, particularly within the law and order agenda, as a means of gaining greater resources and of
widening the net of its response. (Dobash & Dobash 1992, 209)
The domestic violence victim has been embraced by the state and the
political establishment, but on terms quite different from those that apply
to crime victims more generally. The crime victims’ rights movement has
often been without much theory or even folklore to guide it in shaping a
political agenda beyond the next execution or tough-on-crime ballot initiative (Scheingold, Olson, & Pershing 1994, 729). As a result, the movement
has easily been dominated by prosecutors, correctional unions, politicians,
and political consultants.
In contrast, the domestic violence victim has been shaped from the
start by feminist ideas and feminist struggles. If crime victims have come
to embody the governable interests of the people, domestic violence victims embody those interests in ways that are capable of making visible the
power and constraints of the victim logic itself.
One might expect the domestic violence victim to have become a
prime focus of crime legislation, as an exemplary crime victim. In fact, the
domestic violence victim remains very much in the shadow of more popular competitors, particularly the victims of child abuse and child sexual
assault. Both typically involve female children (adult women often face
cultural presumptions of having consented). Unlike the child victim of
abuse, the adult domestic violence victim is suspected of complicity. Unlike the adult or child victim of sexual assault, the degree of the domestic
violence victim’s harm remains more easily doubted. Unlike child abusers
or rapists, the perpetrators of domestic violence are too broad a class of ordinary males to easily mark off as moral monsters (Daly 1994a, 779).
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
190
Governing Through Crime
Those categories of crime victims that have become the most politically
successful are those who can most easily represent the outrage of neighbors
against predatory strangers. Those who represent the ease with which
good neighbors can become criminals are not politically attractive at all.
Unlike the typical victims idealized in the media, the domestic violence
victim has interests in incapacitation and deterrence, but she may also
have interests in redeeming the criminal, with whom she may well have
ongoing contact. Unlike that media victim, the domestic violence victim
has a risk profile that does not fit into the zero-sum game in which harsh
treatment of the offender can only help and in no way hurt or puts at risk
the victim.
The uncertain status of the domestic violence victim in the pantheon
of crime victims is not the only problem for feminists. Many have raised
the danger of the victim role itself for the work of effectively forcing change
in the inequality of women within families (Brown 1995; Lamb 1996; Gavey
1999). Stressing the position of women as crime victims may endanger
the sense of agency necessary for effective political mobilization.6 By establishing the bar of women’s victimization at the high level of assault, domestic violence policy and discourse may normalize forms of patriarchal
oppression that fail to match the popularized image of criminal violence.
Those who persist in raising these concerns are easier to marginalize as
whiners and moralists. “Normal” abuse gets codified as legitimate by the
criminalization of its aberrant cousin.
For present purposes, it is important to observe that domestic violence has become a potent grid of social meaning running through the
heart of intact families, a grid that can be activated intentionally and unintentionally by different people in a family and that brings the power of
criminal justice agencies into the household. Domestic violence is also a
searing example of why governing through crime is not reducible to a set
of political interests or ideologies. The feminists who drove the domestic
violence movement had no ready, shared interest with more traditional
advocates of law-and-order crackdowns, and yet their interaction has created a more potent and productive field of criminalization than existed
before. Moreover, second-wave feminists who saw in domestic violence a
deep truth of patriarchy that illuminated the role of the state and law in
enforcing masculine oppression of women were not deceived. The efficacy
that comes from making that truth public and demanding redress is an
example of how governing through crime works as a spiral of knowledge
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Governing Domestic Relations Through Crime
191
and power that enables, empowers, and produces as much as it represses,
incarcerates, and stigmatizes.
Child Custody Disputes
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Story 2
John and Ariela are in a second marriage. John’s first ended with no children. Ariela’s first produced three daughters. When Ariela’s first husband,
Dan, left her, their three daughters were ages 5, 3, and 6 months. Dan agreed
that full legal and physical custody of the girls would be with Ariela. After
a recent remarriage, Dan got more interested in developing relationships
with his daughters. He lived about 45 minutes from John and Ariela and
began to have more frequent visits with the girls, with Ariela’s support.
The oldest daughter, then 10, went on a monthlong vacation with Dan and
his family. Shortly after their return, Dan petitioned the court for full custody of all three girls. Dan claims that during their vacation, the oldest
daughter accused John and Ariela of using drugs in the house and made
other accusations indicative of emotional abuse. In response, Ariela accused Dan of having beaten her several times during their marriage. During an investigation by a state police agency known as Child Protective
Services, all three children were removed from John and Ariela’s home and
placed in foster care. Following an investigation, the case was retained by
the family court, which entered a new custody arrangement giving Dan joint
legal custody and full physical custody for six months, during which John
and Ariela agreed to enter drug treatment and submit drug tests to the
court. During this period, they would have supervised visits. Child Protective Services officers would also make unannounced visits to Dan’s home
during this period to interview his wife and the children concerning any
domestic violence.
Narrowing the Context
The story of John and Ariela is not necessarily typical of child custody disputes, but it illustrates a theme that comes up in a great many of them: the
role of crime in child custody contests. Interestingly, the increasing role of
crime claims in child custody disputes today echo the largely ritualistic
narrative of moral wrongness embodied in the old system of fault-based
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
192
Governing Through Crime
divorce that began to disappear in the 1970s. Under the old fault system of
divorce, five different issues were contestable in a typical middle-class divorce: (1) the basis of the divorce, (2) alimony, (3) child support, (4) property distribution, and (5) custody of the children, all of them in large part
issues of matrimonial fault; in other words, determining which party to
blame for the breakdown of the marriage (Kay 2002/2003, 6). The first of
these, the grounds for divorce itself, were a primary subject of contestation. Until the spread of no-fault divorce laws beginning with California in
the 1970s, this basic issue was fought out in family court but in terms directly modeled on criminal law.
Joan Shafro (2001), who examined New York cases from the 1950s
through the 1970s, found that courts took fault grounds quite seriously
and expected the party seeking divorce to prove that the accused party
had committed a crimelike wrong against the marriage. The “extreme cruelty ground” was an especially critical pathway for “a divorce seeking wife in
the 50s and 60s,” and courts would not accept “any farce” but presumed that
they had a legitimate preference for preserving marriage. Drug abuse by one
spouse, for example, was not sufficient per se for divorce unless the spouse
seeking the divorce demonstrated “significant detriment to the nonaddicted
spouse” (83).
Today, after the no-fault divorce revolution, the motivations for conflict in situations of dissolution remain, but only two of the five issues are
widely available for contest. The old battle about grounds for divorce has
mostly been abolished. Potential conflict over property distribution and
child support are circumvented by clear legal mandates. Alimony as a permanent payment for breach of the marital contract is gone, replaced by a
period of spousal support based on equitable considerations and need.
Only the last two, child custody and the issue of property distribution,
particularly the family home and who will control it, remain highly contestable. In this narrower contest, crime has asserted itself as the primary
domain in which feuding parents seek to distinguish themselves as moral
beings.
The Perils of Mediation
One piece of data comes from the field of mediation in California. Virtually all divorcing couples with children find themselves in mediation unless some extreme feature of the case, including the criminal conduct of
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Governing Domestic Relations Through Crime
193
one or the other, precludes it for preventive purposes. It thus offers a fairly
accurate picture of such families. In a snapshot study of families in mediation in California in 1996,7 half (51 percent) of the mediation sessions
studied involved accusations leveled at one or both partners concerning
such crimes as “physical or sexual child abuse, child neglect or abduction,
substance abuse, or domestic violence” (Center for Families, Children, and
the Courts 1996, 6). In nearly a third of all such sessions, both parents made
cross accusations of criminal behavior. In 1993 and 1996 surveys of mediation in California, the family court investigators reported conducting an
investigation, which suggests the presence of a criminal accusation, in
fully a quarter of the families in the snapshot sample (9).
If a claim of violence is brought up during mediation, mediators are
required by law to notify police. Such agencies themselves take on a policelike role with trained investigators who typically interview the immediate
parties, and likely witnesses including friends, relatives, and school employees. If investigators determine there is probable cause to believe abuse had
occurred, they will often initiate an action before a special court charged
with the care of dependent children. Courts in California and most states
have the mandate to protect children, and the power to remove children
from the homes of their parents and place them in foster care if necessary
to assure that protection.
Claims that a former partner used drugs in the household when the
children were present would be investigated by the family courts as part
of determining custody or reviewing a mediated agreement on custody.
These courts can and frequently do compel parents to undertake drug
treatment and provide drug tests to the court as a way of assuring their
compliance. If the drug use was mentioned in mediation, the mediator
could make similar recommendations to the court, or if in a county where
the parties have a right to terminate mediation with no report to the court,
the mediator may still recommend that a custody evaluation be ordered.
This would be a signal that most family court judges in the state would
recognize as indicating that some fact worthy of the court’s consideration
had emerged in mediation.
Domestic violence structures the process of mediation in important
ways. First, the process of mediation may pose a serious risk to the victim
in a pattern of domestic violence. If the mother has left the home and is in
a shelter or other secure place, the very trip to the mediation can mean serious exposure to violence. In response to lobbying and lawsuits, most
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
194
Governing Through Crime
states now make the safety of domestic violence victims a primary consideration in the conditions of mediation and whether it occurs at all. Second,
many state legislatures have acted to make domestic violence a dominant
consideration in the custody setting itself. California, for example, provides that “the Legislature further finds and declares that the perpetration
of child abuse or domestic violence in a household where a child resides is
detrimental to the child.” Many states also establish a rebuttable presumption against physical custody for a parent if there has been a finding that he
or she committed an act of domestic violence within the previous five
years.8
1 Strike and You’re Out: Internalizing Crime
Risk to Families
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Story 3
Pearl Rucker is a grandmother and a resident of public housing. After
her daughter was arrested for possessing cocaine three blocks from the
public housing project where she lived, Rucker was informed that she
was being evicted from her apartment in accordance with a provision of
her lease placed there in compliance with Anti-Drug Abuse Act of 1988.9
The Act provided that “public housing agency shall utilize leases which . . .
provide that any criminal activity that threatens the health, safety, or
right to peaceful enjoyment of the premises by other tenants or any drugrelated criminal activity on or off such premises, engaged in by a public
housing tenant, any member of the tenant’s household, or any guest or
other person under the tenant’s control, shall be cause for termination of
tenancy.”
Rucker had actively sought to keep her mentally ill daughter off
drugs, including placing her in drug treatment programs and searching
her room in the family’s public housing apartment. She and several other
tenants challenged the policy, arguing that the law must be read as not
requiring the eviction of “innocent” tenants who did not know that their
family member possessed drugs, and that if it so required, the statute violated the constitutional rights of such innocent tenants. The Ninth Circuit Court of Appeals, sitting en banc, held that the requirement was an
unreasonable interpretation of the statutory scheme. The Supreme Court
reversed that ruling and reinstated Ms. Rucker’s eviction, holding that
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Governing Domestic Relations Through Crime
195
Congress could rationally experiment with the effectiveness of strict liability policies.10
First introduced by the administration of President George H. W. Bush
in 1988, the policy under which Pearl Rucker was evicted began as a grant of
authority to local housing officials to use leases to remove families with serious crime problems that were endangering other residents. It was reborn in 1996 after President Clinton referred to a strengthened version of
the regulation as a “one strike and you’re out” standard in his State of the
Union Address of that year. The new statute for the first time applied as
well to applicants for public housing. The new policies authorize and
encourage—but do not require—public housing authorities to do more
initial screening of potential residents for criminal behavior, and to evict
any current tenant deemed threatening to the safety or security of other
residents regardless of whether there was an arrest, a conviction, or whether
the incident actually took place in public housing (Renzetti 2001, 686).
An investigation by Human Rights Watch in 2004 found that local
housing authorities were in fact using this authority. According to federal
figures released to the organization, nearly 50,000 applicants for conventional public housing were rejected because of the one-strike policy in
2002. Human Rights Watch estimates that as many as 3.5 million persons,
and thus any household they are part of, could be ineligible to receive public housing as a result of the policy (2004, 33). Using the exclusionary power
associated with criminal designation to accomplish other organizational
goals (like ridding schools of poor test takers or ridding public housing of
waiting lists) is a pattern that we will see recur in the way different institutions respond to governing through crime.
The ratcheting up of the crime exclusion policy from public housing
illustrates the most visible aspect of governing through crime: the effort of
political leaders of both parties and of both the executive and Congress to
embrace crime suppression as a strong policy preference in almost any
field of social policy, here housing, and compete openly to establish harsher
and more exclusionary rules for the administrative state. The Supreme
Court, as noted, upheld the policy unanimously, making it an exemplary
case of what I have called “crime jurisprudence.” But the one-strike policy
reflects governing through crime in two of the deeper meanings identified
in our introduction.
In proposing these policies, and defending them before the courts, the
government has consistently argued two policy rationales: first, that the
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
196
Governing Through Crime
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
safety of public housing residents is the overwhelming interest of the government; second, that in a situation of severe scarcity in which a large population of homeless families and families with deficient housing are on
long waiting lists for any public housing, the one-strike rule is a useful and
appropriate way to eliminate large numbers of people without a case-bycase determination of either their likely threat to public safety or their
needs.
The first rationale is consistent with a theme that spans governing
through crime: the clear priority given the prevention of specifically criminal victimization over other kinds of risks or social inequities. These policies build on the zero-sum risk logic of contemporary penal sanctions:
virtually any increase in security for the public, no matter how small or
speculative, suffices to justify virtually any increase in risk for criminal offenders, no matter how substantial and certain. The unanimous support
for upholding this policy against a due process challenge in the Supreme
Court reflects the broadly shared assumption that families face grave risks
of crime and this justifies government choosing between potential victims
and those who have been marked, however lightly, by criminal behavior.
Declining to find the one-strike policy unreasonable, the opinion of the
Supreme Court noted:
There is an obvious reason why Congress would have permitted
local public housing authorities to conduct no-fault evictions:
Regardless of knowledge, a tenant who “cannot control drug
crime, or other criminal activities by a household member
which threaten health or safety of other residents, is a threat to
other residents and the project.” . . . With drugs leading to “murders, muggings, and other forms of violence against tenants,”
and to the “deterioration of the physical environment that requires substantial governmental expenditures,” . . . it was reasonable for Congress to permit no-fault evictions in order to
“provide public and other federally assisted low-income housing
that is decent, safe, and free from illegal drugs.”11
The second rationale provides a nice illustration of a form of governing
through crime that one suspects is typical but is in fact hard to find explicitly
acknowledged, in which crime becomes an excuse to pursue another goal
or goals. Two distinct goals are visible in the government’s own articulation
Simon, Jonathan, and Jonathan Simon. Governing Through Crime : How the War on Crime Transformed
American Democracy and Created a Culture of Fear, Oxford University Press USA – OSO, 2007. ProQuest Ebook Central, http://ebookc
Created from sandiego on 2021-12-10 22:58:15.
Copyright © 2007. Oxford University Press USA – OSO. All rights reserved.
Governing Domestic Relations Through Crime
197
of the policy. One is the efficiency of using criminal conduct as a standard
to eliminate marginal cases without significant administrative investment.
“In deciding whether to admit applicants who are borderline in the PHA
[Public Housing Administration] evaluation process, the PHA should recognize that for every marginal applicant it admits, it is not admitting another applicant who clearly meets the PHA’s evaluation standards” (Human
Rights Watch 2004, 19).
In this way, crime becomes an unacknowledged way of deciding who
does or does not deserve a public benefit. “Because of the extraordinary
demand for affordable rental housing, public and assisted housing should
be awarded to responsible individuals. It is reasonable to allocate scarcer
resources to those who play by the rules.” There is also the suggestion here
that this strategy will produce a more docile and governable public housing population. “There are many eligible, law-abiding families who are
wait…