With a whopping two million people behind bars, America has an incarceration problem. While some critics decry that mass incarceration costs taxpayers $182 billion a year and fails to address the structural causes of crime, others protest that our penal system is a deeply racist and violent institution that destroys communities and families. Most attribute responsibility for our overcrowded and dismal prison system to 1980s and 90s-era politicians who championed tough-on-crime agendas to win over a populace frightened by stories of gangs, crack, and “superpredators.” But mass incarceration is an American problem, stemming from a deeply ingrained punitive impulse that crosses political lines.
In his book Locking Up Our Own, law professor James Forman Jr. documents how Washington DC’s Black leadership, responding to escalating crime rates associated with crack cocaine in the 1980s, supported the extremely harsh drug laws that would go on to produce stark racial disparities in imprisonment. In our culture, when people hear about serious crimes or rising crime rates, they immediately call for more policing, prosecution, and imprisonment. Today, despite the widespread condemnation of mass incarceration and outrage at racialized police brutality, public sentiment continues to favor strong law enforcement and politicians continue to campaign on tough-on-crime policies.
“Carceral feminism” describes mainstream American feminists’ support for and reliance on the police and prison system as a tool of liberation. Attributing gender inequality to individual male abusers, feminists have found great success in expanding criminal laws, increasing arrests and prosecutions, making it easier for prosecutors to gain convictions, and subjecting individuals to long—and therefore “meaningful”—prison sentences. Conventional accounts of mass incarceration fail to recognize the significant role carceral feminism played in building the American penal state and elevating the United States to the condemnable status of most carceral nation on earth.
When feminists embrace individualistic criminal punishment, they relieve the state and society of the responsibility to create the structures and provide the support that prevents gender violence in the first place.
A new documentary, THE RECALL: REFRAMED, is a powerful reminder to feminists that impulsive punitive responses to high-profile cases have broad effects—including leading to the incarceration of people who have little in common with the hated publicized offenders. The film critically examines the 2018 recall of California Judge Aaron Persky. The public was outraged when Judge Persky handed down an extremely light sentence to Brock Turner, a Stanford student convicted of sexually assaulting an unconscious woman. Feminists organized a massive recall effort that resulted in Persky’s removal from his judgeship. The recall campaign equated justice with punishment, not just of the defendant but also of the judge whom many deemed unduly lenient. The public celebrated the recall as a #MeToo victory, a win for sexual-violence survivors and a success against rape culture.
What failed to make headlines was the recall’s immediate and significant carceral consequences. An independent study analyzed sentencing trends across California and found that in the 45 days following the campaign’s announcement, sentence lengths increased by over thirty percent. The authors estimated that the total impact on sentences in California was between 800 and 2,500 additional years of imprisonment. Because of racial disparities in the criminal legal system, those extra centuries are being disproportionately served by Black people and people of color. The recall campaign also led the California legislature to create new mandatory minimums for sexual assault, despite ample evidence that these policies drive and sustain racialized mass incarceration. In exposing these little-publicized effects of the recall, THE RECALL: REFRAMED asks all of us, including feminists, to reckon with our dangerous punitive impulses.
Carceral feminism was not inevitable. There is a long history of feminists fighting against the carceral state: from Ida B. Wells’ critique of lynching in the name of white womanhood; to mid-century socialist feminists’ condemnation of brutal antilabor policing; to twentieth-century feminists’ efforts to decriminalize contraception and abortion. Black feminists have consistently rejected the idea that feminism could recruit the penal state to the end of justice.
The original 1970s battered women’s movement was itself deeply anti-authoritarian. Organizers of shelters saw them as part of a larger program to create alternative egalitarian women-only societies, freed from the patriarchy and oppressive government. These feminists regarded the criminal system as an institution of “domination based on race, class, and sex,” in activist Susan Schechter’s words, and the police as agents of a racist and war-mongering state. Feminists in the welfare-rights movement characterized battering as a matter of economic precarity and white supremacy. Family violence researchers at the time linked abuse to social stressors and rejected a law enforcement approach. These groups’ proposals to address abuse included welfare benefits, social services, therapeutic interventions, and economic programs like workplace accommodations and housewife wages. In short, hardly any domestic violence activists and experts, including most feminists, advocated for more criminal law. Yet, by the mid-1980s, leaders within the battered women’s movement touted the “law enforcement model” as the true feminist approach to domestic violence and rejected alternative programs.
Here’s how that happened. In the late 1970s, powerful white feminists, including lawyers, judges, and leaders within NOW, were eager to link battering to patriarchal marriage norms and vehemently rejected the contention by many feminists of color that racial and economic inequality contributed to violence. During the 1978 Commission on Civil Rights hearings on “wife abuse,” a Latina shelter operator linked abuse to “the racism of the Great White Society.” This elicited a strong reaction from a prominent white feminist judge, who balked at blaming “white society” for a “human” problem. If minority women experienced disproportionate violence, the judge explained, they should attribute it not to discrimination, but to the sexism “inherent in [their] culture.”
Sociologist Beth Richie labels this pervasive claim that domestic violence equally affects women of any race, class, or circumstance the “everywoman” narrative. Unsurprisingly, the generic everywoman victim was envisioned as “a white, middle-class woman.” Once this narrative established that domestic violence is solely caused by individual empowered abusers and is unrelated to socioeconomic conditions, the remedy became simple: separation and arrest. In turn, the battered women’s movement began to see the penal state not as an institution of violence and social inequality that should be reformed but as a protector and punisher of individual bad men that should be reinforced. This, of course, contradicted the lived reality of many women, and especially women of color, who experienced the police and courts as sites of peril, not protection.
The defining victory of the battered women’s movement was the pro-arrest policies that remain ubiquitous today. In the late 1970s and early 1980s, feminists sued police departments to compel them to adopt policies that required officers to make a mandatory arrest when called for a domestic violence complaint, whether the victim wanted an arrest or not. This mandate displaced police prerogatives that had previously focused on de-escalation, conflict resolution, and providing services. By the late 1980s, sociological studies revealed that mandatory arrest policies escalated violence, made victims reluctant to call the police, and left many women in precarious legal, housing, and financial situations. Worse, in addition to modest increases in the arrest of men, mandatory arrest laws also produced substantial increases in the arrest of women, contributing to women’s status as the fastest growing segment of the imprisoned population. Since 1985, the female prison population has increased at double the rate of the male population.
When feminists embrace individualistic criminal punishment, they relieve the state and society of the responsibility to create the structures and provide the support that prevents gender violence in the first place. Criminal punishment does little to materially aid survivors and other women in need. Instead, feminism’s alliance with the penal state has diverted people away from communities to carceral institutions. It has also diverted feminist energy and capital away from addressing the underlying conditions that make women, especially marginalized women, vulnerable to personal and state violence—capital and energy that has gone in the last four decades toward strengthening a carceral system rife with violence. To meet this moment of mass incarceration and racist police brutality, we must reject carceral feminism and address the underlying causes of violence against women. We must see criminal law as a last, not first, resort.
Aya Gruber is a law professor at University of Southern California Gould Law School and the author of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration.
Yoruba Richen and Rebecca Richman Cohen The Cognitive Dissonance of Brock Turner
Jevhon Rivers How do we address sexual violence without contributing to the harms of mass incarceration?
LaDoris H. Cordell The fatal flaw of judicial politics: How outrage around Brock Turner led to centuries of extra prison time
The Recall: Reframed (Full Film)