The Carceral State Will Not Be Feminist
By Aya Gruber | August 4, 2020
Aya Gruber is a Professor of Law at the University of Colorado Law School.
Events of the past few months—the brazen police killings of George Floyd, Breonna Taylor, and Rayshard Brooks and repeated incidents of officers, clad in battle gear, subjecting protesters to gratuitous violence—have spotlighted the evils of U.S. policing, prosecution, and punishment. The public has begun to comprehend the breadth of the penal state that sweeps up primarily poor people of color and other marginalized groups. People have become increasingly educated on policing’s masculinist, racist, and classist origins in slave patrolling, controlling the “disorderly” people left behind by industrial capitalism, disciplining women’s sexuality, busting unions, and squelching political dissent. COVID-19 has exposed the degrading conditions within prisons. All of this has shattered the illusion that the criminal system’s tendency to wound, control, and thus maintain the subordinate status of the worst-off is a malfunction rather than the system’s function.
At this time, it is crucial to maintain the pressure on policymakers to stop regarding criminal law enforcement like any run-of-the-mill tool of governance used for policy goals. My recent book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, provides support for a simple, if radical, proposition: Feminists and other gender policy experts should no longer use criminal law enforcement as a tool to deter, control, and remedy violence against women.
Feminists and other gender policy experts should no longer use criminal law enforcement as a tool to deter, control, and remedy violence against women.
If anything, reformers should work to dismantle the carceral programs feminists built in the name of gender justice that have produced neither gender equality nor justice.
Feminism’s Long Embrace of Criminal Law
Examining feminist criminal law efforts from the late 19th century to today, the book tells the cautionary tale of how feminists, in their efforts to secure women’s protection from domestic violence and rape, often acted as soldiers in America’s virtually endless war on crime. The point is not to criticize feminism or even “white feminism” as inherently misguided, racist, or punitive, but to examine the internal and external factors that led powerful feminist groups to repeatedly choose criminal law, despite strong internal objections and the availability of non-criminal avenues. From 19th-century moralists to today’s #MeToo movement, prominent feminists have embraced law enforcement without acknowledging that penal institutions have internal carceral, racist, and masculinist logics and have always reflected and reinforced larger social phenomena, from slavery to sex panic.
From 19th-century moralists to today’s #MeToo movement, prominent feminists have embraced law enforcement without acknowledging that penal institutions have internal carceral, racist, and masculinist logics and have always reflected and reinforced larger social phenomena.
For example, in the 1890s, feminist temperance activists’ campaign against rape—the meaning of which was then and now deeply raced and classed as well as gendered—gained popularity in the Reconstruction-era South, just as rape became a primary justification for lynching Black men. Their rape reform program drew intense criticism from anti-lynching activists including Frederick Douglass and Ida B. Wells. A century later, anti-domestic violence and anti-rape programs gained traction in a time of crime-control politics, racialized discourses of criminality, and predator panic, and they contributed to the massive expansion of the scope and barbarity of the penal state. Understanding this history and the non-penal roads not taken challenges the widespread feminist presumption that harsh punishment of abusers and rapists is always “feminist” and resisting criminal law means the patriarchy wins.
The Carceral Feedback Loop
Many contemporary feminists are open to rejecting criminal law but first want assurance that non-criminal programs will “work.” There are a number of state and nonprofit service programs designed to prevent and remedy abuse. Many like API Chaya in Seattle take a holistic and community approach, and some like Community Restorative Justice Solutions in Contra Costa, California, pilot restorative-justice alternative court programs. In addition, important books examine in detail the restorative justice model as a substitute for the prosecutorial model, including Leigh Goodmark’s Decriminalizing Domestic Violence and Danielle Sered’s Until We Reckon.
Nevertheless, I want to caution that leading the domestic violence decriminalization discussion with alternatives to “replace” the penal apparatus gives an unfair advantage to the status quo criminal system. Compared with fledgling non-carceral programs, policing and prosecutorial programs will always have a claim to being established, proven, more resourced, and better able to deal with “emergencies.”
Compared with fledgling non-carceral programs, policing and prosecutorial programs will always have a claim to being established, proven, more resourced, and better able to deal with “emergencies.”
Indeed, there is a carceral feedback loop where the criminal system, because it is over-resourced and entrenched, gets all the new resources, serving to further entrench it.
For example, 1970s battered women’s activists hoped to fight domestic violence without using the police—the “Man”—but kept running into the problem that only the police had the means to respond to calls after-hours when much domestic violence occurred. Advocate Yolanda Bako lamented in 1978, “If our government ever funded women’s programs as well as they have the police,” then a solution to battering “would be well in hand.” But she ended up encouraging activists to engage the police because “the problem is already at [their] doorstep.” Activists were reluctantly drawn into a criminal system they initially regarded as racist, sexist, and violent because it already had resources. As feminist activism accrued the system more resources, anti-racist, anti-carceral feminists ended up building a new arm of the penal state.
A New Paradigm
Prison abolitionist Thomas Mathiesen warned in 1986, “Rather than helping in constructing ‘alternatives’ which actually become add-ons to the prison solution, we should see it as our task to strive towards ‘shrinking’ the system.” We see the add-on phenomenon frequently in the gender violence context, as activists’ transformative ideas and programs are taken over by prosecutors and court administrators and become yet another reason to maintain penal intervention.
We see the add-on phenomenon frequently in the gender violence context, as activists’ transformative ideas and programs are taken over by prosecutors and court administrators and become yet another reason to maintain penal intervention.
To break the loop, prison-abolitionist group Critical Resistance draws a distinction between “reformist reforms” that “continue or expand the reach of policing” and “abolitionists steps” that “chip away” at the penal state, for example, depolicing non-criminal “quality of life” incidents and replacing armed officers with crisis intervenors, as San Francisco has recently vowed to do.
To replace the carceral paradigm, I suggest a “neofeminist” approach that recognizes gender crimes as pressing social problems that reinforce women’s subordination but adopts Mathiesen’s “abolitionist stance” of “a constant and deeply critical attitude to prisons and penal systems as human (and inhumane) solutions.” With a neofeminist perspective, reformers would, among other things, oppose new or expanded substantive gender crimes and higher sentences. They would characterize violence as a function of social conditions rather than of individual evil men. They would expend capital on reforms that provide material aid to the women most vulnerable to violence.
We have important work to do to free policymakers of the fear that rejecting criminal law equals promoting gender violence and take one more step down the long road of unmaking American mass incarceration.
Aya Gruber is a Professor of Law at the University of Colorado Law School. She is a former public defender and author of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (University of California Press, 2020).