Mixed Martial Messages
What kind of violence is acceptable?
For roughly half a decade, a small contingent of criminal justice reformers has beseeched Americans to divert some of our attention from opposition to the drug war to mercy for violent offenders.
"We can't get from where we are to where we need to be just by releasing the innocent and harmless," the late criminologist Mark Kleiman wrote in 2015. "More than half of today's prisoners are serving time for violent offenses, and even those now in prison for nonviolent crimes often have violent histories. Solving mass incarceration requires releasing some seriously guilty and dangerous people. The problem is how to do that while also protecting public safety by turning ex-criminals into productive, free citizens." The Fordham law professor John Pfaff made a similar argument in 2017's Locked In (Basic Books), which rejected what Pfaff calls the "standard story" blaming the drug war for mass incarceration.
The latest contribution to this genre is David Alan Sklansky's A Pattern of Violence. A former prosecutor, Sklansky argues that "violent crime" is a fluid and relatively recent legal construct. "We take it for granted that violent crimes are the serious crimes, the ones that deserve stiffer sentences," he writes. In an era when no one seems able to agree on anything, many Americans and nearly all of our political elites agree that violent offenders should be "remove[d]…from our midst," as Vice President Kamala Harris put it when she was a district attorney in the early 2000s.
This consensus has various implications. One is the stark distinction between criminal law, where statutes categorize behaviors as either violent or nonviolent, and criminal procedure, where the "use of force" by police ranges from necessary to unnecessary. The book also covers violence by and against minors, violence in prisons, the law's evolving treatment of rape and domestic violence, and the ways America's deference to free speech, private gun ownership, and self-defense has undermined both left-wing and right-wing efforts to expand the legal definition of violence.
U.S. laws governing violence vary from place to place and era to era. They're influenced by race, class, social mores, and social upheaval, and as a result they're far from standard. There is, however, a tendency across jurisdictions to widen the concept of "violence" to include ever more offenses.
One other common thread identified in Sklansky's book—a reform-minded text that makes very few reform suggestions—is that the addition of new violent crimes to the criminal code is not always bad. In the 1970s and 1980s, many jurisdictions adopted statutory and procedural changes that recognized spousal rape and domestic violence as crimes, limited defense attorneys' ability to enter testimony about rape victims' consensual sex lives, and "weakened or abandoned" the requirement that prosecutors prove a rape victim "exhibited 'utmost resistance'" against her attacker. These reforms moved the legal focus from women's purity to the actions of their attackers. They also helped unwind sexual deviancy as an offense category, which benefitted gays and lesbians.
Of course, once the legal system accepted that raping and hitting women were violent crimes—rather than an unfortunate consequence of male lust or a private spousal matter—it became imperative for victims to prove that violence. Many women who have been victimized by men, especially in or adjacent to professional settings, cannot meet this standard. Criminal law can make quick work of a violent rapist, but it won't help you if you're hoping to prosecute less forceful transgressions, including most of the events brought to light by the #MeToo movement.
Should the law be brought to bear on those cases that involve violation but not violence? Since the 1980s, feminists have been divided on the question. Catharine MacKinnon wanted to legally define rape as "any physical invasion of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction or the abuse of power, trust, or a position of dependency or vulnerability." This definition, she believes, would criminalize not just violent sexual assault but also sex work and pornography. Other feminists, such as Marcia Pally, have argued that broadening the definition to enable censorship of pornography infantilizes women and mistakes the causes of sexual violence. The modern debate about sex work and porn continues to pit feminists who believe that prohibiting the sale of sex erodes female agency against feminists who believe that all sex work is violent because it debases the women who do it.
Though they predate her work, most of the laws banning prostitution in the U.S. essentially reflect MacKinnon's position. That has not exactly worked out in women's favor, considering that nearly every sex work bust that involves actual sex workers (rather than cops in disguise) results in charges against both the johns and their "victims."
Sklansky's book is rich with such paradoxes. If we consider violence to be so detrimental that it must have its own category of law, why do we allow so much violence in our correctional facilities? If we punish violence because it causes harm, why don't we punish harmful behaviors that don't leave a mark? Maybe it doesn't need spelling out, but Sklansky does so anyway: Human beings don't find all or even most violence objectionable. We like boxing and wrestling. We glorify soldiers. We send children to karate classes and let them play contact football. Some types of violence are seen as funny, as evidenced by the millions of people who have watched America's Funniest Home Videos for the last 30 years.
You don't have to be a libertarian to distinguish between consensual boxing and attacking someone against his will. But the creation of "violent crime" as a legal category—which did not happen at the federal level until 1984 with the Armed Career Criminal Act—was not so much about the absence of consent as the presence of violence. That is what makes these paradoxes so striking. We have always prosecuted (some of) the people who damaged the bodies and property of others. But only in the last few decades has violence itself become the point of emphasis.
Meanwhile, agents of the state can do things to other individuals that regular folks could never get away with. Cops are an obvious example but not the only one. Most states have enhanced penalties for adults who commit violence against minors—unless the adult is the minor's parent, in which case the violence must be especially grievous (or the parent poor, in which case another arm of the state can exercise powers that the criminal courts will not). Yet we cannot say that violence against a minor is only acceptable if committed by a parent, because it remains legal in 19 states for public school officials to assault wayward children. Education Department data from 2014 suggest that school administrators legally assault roughly 100,000 U.S. students each year. In 2016, researchers Elizabeth T. Gershoff and Sarah A. Font offered an even larger estimate, suggesting that administrators assault roughly 160,000 students annually.
I just referred to paddling (the most common form of standardized corporal punishment) as "assault," because that's what most people would call it if three adult men dragged a 14-year-old boy into a room, two of the men bent him over, and a third man beat the boy's buttocks with a flat heavy piece of wood so hard that the child later needed painkillers and laxatives to use the restroom. That is what happened to one of the plaintiffs in 1977's Ingraham v. Wright. But after the Supreme Court heard that case, brought by two black Miami-Dade junior high school students who sued their school district after administrators paddled them for tardiness, the Court's conservative majority ruled that students are not entitled to "notice and a hearing prior to the imposition of corporal punishment in the public schools, as that practice is authorized and limited by the common law,"* and that corporal punishment does not violate the Constitution's prohibition on cruel and unusual punishment. As is often the case, the Court is more permissive when it comes to state violence than with violence between private individuals.
Sklansky's book highlights a few efforts at making our justice system less nightmarish. For example, he writes approvingly of various diversion models that allow defendants to avoid prison and jail, though he notes with regret that they are largely unavailable to "violent" offenders. But A Pattern of Violence is not a policy treatise. The author has no grand solutions to share, just historical asymmetries and their consequences. His only call to action is that readers resist the temptation to think of violence as "an easily recognizable, objectively distinguishable, superlatively condemnable set of behaviors, engaged in by an easily recognizable, objectively distinguishable, superlatively condemnable category of people."
A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice, by David Alan Sklansky, The Belknap Press of Harvard University Press, 316 pages, $29.95
*Correction: The original version of this article misstated the majority opinion's finding on the 14th Amendment question raised in Ingraham v. Wright.
