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The Case Against Carceral Feminism
A few weeks ago, I was at drinks with friends when we got a text about an open shooter at Trader Joe’s just down the street. Gathering around a propped iPhone screen, we watched updates as they rolled in on Twitter. It was a hostage situation. Videos appeared of police rescuing children from parked cars and people climbing out of the store’s windows. Eventually, we heard an innocent women was killed.
The vague way in which the Tweet was worded made it clear to me, a criminal defense lawyer, that this woman was shot dead by the police.
The next day, my suspicions were confirmed. I read that the shooter began firing at police as he ran into the Trader Joe’s. Two officers returned fire, and one struck the deceased, a store employee, killing her instantly.
“How are police deciding to open fire in a packed place, in the afternoon, on a Saturday?” the victim’s neighbor asked the Los Angeles Times. “It’s not like it’s an empty lot. It’s not like it’s an abandoned warehouse. What sort of protocol is required before you shoot into an area that’s congested and booming with commerce?”
The LAPD is the deadliest police force in the country. But they’re not an aberration. As of August 2018, 625 people have already been killed by American police officers; in 2017, they killed a total 987. I’ve often thought that the motivation it takes to become a police officer is not unlike that required to become a violent criminal: a lust for adrenaline, proximity to weapons, high-stakes conflict.
According to the National Center for Women & Policing, at least 40 percent of police officers have committed domestic violence in their own homes. Which means police officers beat their family members at a higher rate than NFL players. In light of these statistics, it’s bizarre that we continue to expect the police to diffuse violence — particularly, in an intimate setting.
In previous decades, police often responded to domestic violence by telling the alleged perpetrator to calm down, then leaving. In the 1970s and 1980s, feminist activists began suing police departments for not taking domestic violence seriously. This spurred an overhaul of how we respond to domestic violence, which in turn created a whole new slew of problems.
In 1994, Congress passed the Violence Against Women Act (VAWA), a $30 billion piece of legislation that funded the hiring of 100,000 new police officers across the country. Moreover, roughly half of states have enacted mandatory arrest laws, which require the police to arrest someone at the scene of a domestic violence call.
This shift towards a more punitive model ignored that law enforcement and the criminal justice system often are often ill-equipped to protect women from abuse and, in many cases, only exacerbate it.
Writer Victoria Law explained that many of the feminists who had lobbied for VAWA silenced countless tales of women whose 911 calls resulted in more violence. She described a black woman who, in 1999, had her nose broken and spleen ruptured by the police after calling them to protect her from an abusive boyfriend. “Often white, well-heeled feminists,” Law wrote, “their legislative accomplishment did little to stem violence against less affluent, more marginalized women.”
Women’s studies and sociology professor Elizabeth Bernstein coined the phrase “carceral feminism” in 2007 to describe using a punitive approach to achieve feminist goals. In “The Sexual Politics of the ‘New Abolitionism,’” she criticizes carceral feminism for failing to take into consideration the underlying structural inequality that creates and furthers gender violence.
Law wrote that carceral feminism fails to acknowledge that “police are often purveyors of violence and that prisons are always sites of violence.” It further “ignores the ways in which race, class, gender identity, and immigration status leave certain women more vulnerable to violence and that greater criminalization often places these same women at risk of state violence.”
A few years after VAWA, President Clinton signed welfare reform legislation, which caused the number of people who were receiving welfare (most of whom were women) to drop 53%. “Gutting welfare,” Victoria Law wrote, “stripped away an economic safety net that allowed survivors to flee abusive relationships.”
Moreover, mandatory arrest statutes often result in dual arrests, meaning the police detained both parties because they couldn’t figure out who was the “primary aggressor.” In her book Conflict is Not Abuse, author Sarah Schulman wrote that just as often, the wrong person is arrested. “Perpetrators — [often men] — increasingly are the ones to call the police, threaten legal action, send lawyer letters, or threaten or seek restraining orders as part and parcel of their agenda of blame and unilateral control.”
Truly violent and abusive people, Schulman continued, are difficult to arrest and convict. And because women who are queer, immigrants, people of color, trans, or even simply interpreted “loud or aggressive,” do not fit our notions of victimhood, innocent people are arrested every day. In this sense, the state’s mode of “protection” becomes an additional method of harassment.
As we shifted towards this punitive model, Shulman writes, TV shows like Law & Order became popular, with a focus on sex crimes and domestic violence. “In a typical episode, a purely innocent victim, who […] is inherently good, is stalked/abused/attacked by a purely and inherently evil predator.” This scenario is completely unrealistic; I worked in criminal defense for 10 years.
As I wrote in a piece on women’s obsession with true crime for the Hairpin:
In most  cases, guilt is elusive. There are rarely eyewitnesses; even if there are, memory is imperfect. Forensic science is unreliable. There is no obvious ‘good guy,’ no one is ‘evil.’ Victims and perpetrators alike are poor victims of a system that repeatedly fails to protect them.
For that piece, I spoke to author Joni Murphy, whose 2016 novel Double Teenage follows the lives of two girls coming of age in the 1990s — Law & Order’s heyday. The protagonist watches the program weekly with her father, during which she falls into the “comforting rhythm” of a “brutal attack” followed by a “swift rotation of justice.” Murphy called the procedural a “systems project” that repeatedly affirms that the cops and the DA are “doing their best” and “they know how to find the guilty person.”
In my time in criminal defense, I repeatedly watched police officers and DAs lie, hide or tamper with evidence, and pursue cases against innocent defendants. I watched DAs prosecute against the victim’s wishes, ask for numerous continuances, and file motions that were seemingly written in five minutes, using logic along the lines of: “the defendant is guilty because he is not innocent.” In no universe would I say these individuals were “doing their best.”
Schulman echoed that the true crime genre hammers home the state-serving message that “people are either victims or perpetrators, and therefore the answer is always the police[.]” She concludes that this “reductive, dichotomous, bad/good message […] justifies the power of the police and falsey presents it as neutral, objective, and value-free.” Rather than disentangling the structural causes of violence, we instead engage in a “simplistic and often destructive emphasis on who is right and who is wrong.” In the end, we focus on punishing the bad offender as a way to prove “our own righteousness.”
“The law is designed to protect the state,” Schulman wrote, “not people who are victimized by the state.” A famous example is “stop and frisk,” constitutionally-sanctioned laws that enable police to racially profile with abandon. The perpetrator-centered model also allows the state greater access into the homes of the poor, inevitably resulting in increased incarceration of people of color. Rather than empowering women and other marginalized groups, the carceral model puts their fate in the hands of the police.
Judges don’t fair much better than police or prosecutors. An example from Schulman’s book recounted the experience of her friend Lillian, an advocate for victims of domestic violence. Lillian told Schulman about a case in which a man abused his partner to the point of putting her in the hospital three times. Lillian produced the hospital affidavits and police records to prove the abuse, but the judge dismissed the case, granting the man joint-custody of the children. “Such is Lillian’s daily reality,” Schulman wrote, “where actual, substantiated examples of sustained, damaging violence are disbelieved by the legal apparatus.”
This anecdote resonates with my own experience clerking at D.C. Superior Court after law school. While Lillian worked in a “rural area,” D.C. Superior Court is known for being among one of the more liberal and well-educated courthouses in the country. That said, I was constantly horrified by raging demonstrations of bias.
I’ll never forget an experience I had in family court, watching a woman fight for custody of her children.
The woman was understandably emotional, crying and frazzled as she tried to convey her points. Her ex-husband, by contrast, was cool and collected. He presented the way lawyers are trained to behave in a courtroom, the way judges respond to and respect: as if he’s never experienced an emotion in his life.
The judge I was working with that day, a woman, called me into her chambers. “She’s lying,” she said about the woman who’d painted a vivid picture of an abusive and absent father, begging for full custody of her children.
“Excuse me?” I asked.
“She’s trying to use those tears to manipulate me and I’m not having it,” she said, before storming back to the bench.
In law school, we aren’t taught to understand people, their emotional experiences, or how structural inequality impacts their actions. Rather, we’re taught to imagine the world in a vacuum, where everyone is rational and unemotional, and humans exist on a level playing field.
An example of the legal system’s inability to protect women from abuse can be seen on the Bravo reality television show, Southern Charm, which follows seven Charleston socialites partying away their inheritances. Condemned politician Thomas Ravenel, a convicted felon facing numerous sexual assault allegations, was given full custody of his children during a legal dispute with the children’s mother, Kathryn Dennis. Not only did he deny Dennis access to his children, whom he kept in the carriage house where they were looked after by a nanny, but he made her submit to random drug tests with legal authority. Whenever her legal entanglement came up in polite conversation, Dennis described it accurately: “it’s the good old boys club.”
The law is designed to protect those who created it, and those who continue to uphold it: white men.
Schulman wrote that structural inequality creates vulnerability to both other people and to the state. “Oppression,” she wrote, “which is itself by definition a state of vulnerability, in turn produces even more vulnerability.” Vulnerable populations continue to be disproportionately targeted by the criminal justice system.
Data shows that the number of women in prison has substantially increased over the past few decades. In 1970, 5,600 women were incarcerated nationally. In 2013, there were over 210,000 women in American jails and prisons. Most of these women were physically or sexually abused prior to being arrested, often by their partners. In New York, 67% of women imprisoned for murdering someone they knew were responding to abuse. In California, a study found that 93% of women who had killed their partners had been victims of abuse. A majority reported that they resorted to violence as an attempt to save themselves or their children.
Meanwhile, homicide by an intimate partner is among the most common causes of death for black women in America.
Schulman argues for a retreat towards a more victim-centered model, or what is now commonly known as restorative justice. First articulated by criminologist Howard Zehr in 1990, restorative justice recognizes the limitations of the punitive model. Rather than retribution, the goal is to help offenders recognize the harm they caused and encourage them to repair the damage to the extent possible. The practice emerged to combat the criminal justice system’s general neglect of victims and their needs.
For another piece in this series, I spoke to a Bay Area Public Defender who told me that punishing the accused does nothing to help heal the victim’s pain. “How about we save society money and save peoples’ lives,” she proposed, “by applying evidence-based treatments like CBT to help heal the traumas of the alleged perpetrators and alleged victims, both of whom undoubtedly are deeply traumatized?”
Our failure to adequately address the causes of intimate abuse has major implications. NPR reported in the fall that roughly 50% of the mass shooters in the U.S. in recent years have committed domestic violence. Around the same time, Fortune wrote: “While it often seems like there’s no rhyme or reason to mass shootings, there is at least one commonality among many of the perpetrators: a history of violence against the women in their lives.”
The recent tragedy at Trader Joe’s began as domestic violence situation at the shooter’s home in South LA. The police were called, and — ultimately — an innocent woman was shot dead.
If we want to prevent incidents like this from occurring in the future, we have to radically rework the the way we respond to intimate partner violence in this country.