Violence presents the law with profound challenges. The most obvious challenges are practical: to reduce violence and to obtain a measure of justice for the victims of violence. Violent crime is less common in the United States than it was twenty years ago, but it still takes a horrible toll. Homicide is the third leading cause of death among Americans aged 15 to 34; it is the leading cause of death among Black males under 45 and the second leading cause of death among Latino males under 45. Every year, some five million Americans are victims of criminal assaults and more than 700,000 are raped. Police officers in the United States kill roughly a thousand people each year. Ten percent of all men and 20 percent of all women in the United States have experienced intimate partner violence. Violence is pervasive in many American prisons: in Mississippi, for example, six prisoners were killed in just the first week of 2020. How the law responds or fails to respond to these ongoing calamities helps to define us as a society.1
Beyond these practical problems, though, violence also presents the law with a more basic, conceptual challenge. The challenge is to think clearly about violence: to define it sensibly, to accord it the right kind of significance, to understand how it functions, and to appreciate the different forms it takes. This is the challenge that has been the focus of this book. It is a critical challenge. When our ideas about violence are muddled, our responses to violence are muddled. The problem is not only that bad ideas make it harder to reduce violence and to seek justice for its victims. Confused thinking about violence does not just make the legal system less effective; it can make the system harmful. The way the law thinks about violence can determine whether the law itself becomes an engine of inequality and a factory of needless suffering.
Violence can seem easy to identify and easy to condemn, no matter how hard it is to understand and control it. But violence is surprisingly tricky to define, and moral judgments about violence often prove slippery. Sometimes the label “violence” is reserved for acts involving physical force against other people, but at other times the category is extended to physical force against property, or to threats of physical force, or to acts that create the danger of physical force being used. Often the category is stretched even further and we speak of “symbolic,” “verbal,” or “emotional” violence. Sometimes the category of violence is restricted to acts that are illegal or illegitimate, so that “justified violence” becomes a contradiction in terms, but sometimes the term “violence” is used more broadly, without a built-in judgment that the acts in question are wrongful. The Supreme Court’s efforts to interpret the terms “violent crime” and “crime of violence” in the federal criminal code have been spectacularly unsuccessful, and the Justices have repeatedly concluded that significant parts of the statutory definitions are unconstitutionally vague. As with definitions of violence, so also with moral assessments of violence. Sometimes violence is treated as beyond the pale: a category of behavior so unacceptable that people who engage in it should be condemned in the strongest possible terms and subjected to the heaviest possible penalties. Sometimes violence is celebrated and treated as heroic. And sometimes the line between violent and nonviolent conduct is given little significance of any kind.
These ambiguities, and others, pervade the law’s treatment of violence. The ideas about violence incorporated within the law are glaringly inconsistent. This is true not only of ideas about how violence should be defined and ideas about the moral significance of violence—how much it matters whether something is violent, and in what ways. It is true as well of theories about how violence operates: how it originates, how it progresses, and how it can be stopped.
Ideas about the significance of violence and the definition of violence are closely related: one way to make violence matter less is to define it so broadly that almost everything counts as violent, or conversely to define it so narrowly that very little qualifies. The law is remarkably inconsistent about both the significance of violence and its definition. Over the past half century, criminal law has made violence increasingly consequential. The line between “violent” and “nonviolent” offenses has become the most important dividing line in criminal law. Whether an offense counts as violent often determines whether a defendant will be subjected to draconian sentencing “enhancements”; whether he or she will be ineligible for diversion programs or for drug court, veteran’s court, or mental health court; whether the defendant will be eligible for early parole; and whether he or she will face a host of collateral consequences of conviction—from deportation to removal of voting rights. What counts as a “violent” crime, though, is often unpredictable and counterintuitive, and it can vary from state to state and depending on the context.
In stark contrast, the line between violent and nonviolent conduct plays almost no role in criminal procedure, the set of constitutional, legislative, and administrative rules that govern the police. The constitutional rules the Supreme Court has crafted for law enforcement draw little distinction between violent and nonviolent tactics, and the internal rules adopted by police departments generally employ a “use of force continuum” that largely abolishes any sharp distinction between violence and nonviolence. Controversy continues regarding how narrowly responses to sexual assault and domestic abuse should focus on violent forms of victimization, even as advocates for victims of sexual assault and domestic abuse argue that the main issue is control, not physical violence. In the area of juvenile justice, there has been a retreat from the idea that violent offenses are, almost by definition, not appropriate for resolution in juvenile court, and in the area of child welfare the argument is increasingly heard that emotional abuse can be worse than physical abuse. But in these areas, too, the category of violence retains significant purchase, and violence often is treated as a category apart—both violence by juveniles and violence against juveniles. The idea that violence is a category apart lies behind the move away from corporal punishment of children, but that move is very far from complete. A significant number of jurisdictions continue to allow corporal punishment in public schools, and no jurisdiction has banned or even significantly restricted corporal punishment carried out by parents or guardians.
In carceral institutions, corporal punishment is formally banned. For the purposes of the Eighth Amendment, violence is very much a category apart—except when it comes to the death penalty, and even there, modern methods of execution seem designed to downplay the use of physical force and to avoid the spectacle of violence. In the actual operation of jails and prisons, however, violence is often so openly tolerated that it seems an informal part of the punishment imposed on prisoners. Public discussions of criminal violence, moreover, often ignore violence within jails or prisons, treating it—sometimes implicitly, sometimes explicitly—as not raising the same kinds of concerns as violence outside the walls of correctional institutions.
Meanwhile the interpretation and application of the First Amendment downplays the distinction between violence and nonviolence, and Second Amendment doctrine increasingly reflects the view that the important line is not the one between violence and nonviolence, but the one between justified and unjustified uses of violence. Gun offenses—including possession of a gun by someone who has lost the privilege—are typically treated as violent offenses for purposes of the many, often draconian distinctions that criminal law draws between violent and nonviolent offenses. But lawful possession of a gun, and lawful use of a gun in self-defense or in defense of property, is valorized, not only in much popular discourse, but increasingly in the law as well, in constitutional doctrine and in stand-your-ground laws.
The law also incorporates and reinforces ideas about how violence works: what drives it, how it starts and stops. Here, too, the law is inconsistent. Contemporary sentencing statutes, especially “Three Strikes” laws and other provisions aimed at “habitual” offenders, are strongly shaped by the view that violence is dispositional rather than situational. They are shaped, that is to say, by the belief that violence is driven by the character of particular, dangerous individuals rather than by the circumstances in which people find themselves. This same idea lies behind the law of free expression under the First Amendment and the expansive understanding of gun rights the Supreme Court has recently brought to its interpretation and application of the Second Amendment.
Why does constitutional law so rarely allow speech to be restricted in the interest of preventing violence? Partly because freedom of speech is so highly valued, but partly, too, because the Supreme Court has been highly skeptical of claims that speech of any kind—even the “speech” of ultraviolent video games—is likely to result in actual bloodshed unless people are already inclined to violence, in which case the speech is unnecessary to spur them on. So too with firearms: guns don’t kill people, the National Rifle Association repeatedly says, people kill people. The same skepticism about gun control laws is reflected in the Supreme Court’s recent Second Amendment decisions, although the Court has refrained from carrying that skepticism as far as gun rights activists would like. Likewise, a dispositional theory of violence underlies the complacency that courts often show toward violence in jails and prison. If what makes carceral institutions violent is the nature of the people confined in them, then violence behind bars is inevitable: prisons are dangerous places because prisoners are dangerous people.
But violence is not always understood as a matter of character. Legal regulation of the police reflects a long-standing tension between two different ways of thinking about police violence: one is dispositional, focusing on “bad apples,” and the other is situational, focusing on the dangers faced by officers and the split-second decisions they sometimes have to make. Thinking about sexual assault, and about domestic violence, is similarly marked by long-standing debates about whether these problems stem from the pathologies of individual offenders or instead from a pervasive culture of male domination. Prison reformers have long pointed to evidence that violence behind bars is not, in fact, inevitable: that it results from the way particular carceral institutions are operated. Similarly, recent changes in the treatment of juvenile violence reflect a renewed belief that young offenders are distinguished in part by their suggestibility and impetuosity—which is to say, their susceptibility to situational drivers of violence.
Recognizing the wide difference in how the law thinks about violence does not tell us how the law should think about violence. It does not tell us how violence can best be defined, what moral significance it has, or how it can best be understood. But it does teach some lessons about how not to think about violence. It warns us about mistakes the law should avoid.
The most important of these mistakes is the assumption that violence is a thing apart: an easily recognizable, objectively distinguishable, superlatively condemnable set of behaviors, engaged in by an easily recognizable, objectively distinguishable, superlatively condemnable category of people. Stated in this manner, the mistake seems easy to avoid—a straw man, even. Nearly everyone recognizes that the line between violence and nonviolence is sometimes blurry, that a normally nonviolent person can sometimes become violent, and that nonviolent wrongdoing can be worse than relatively minor forms of violence. On the last night of 2019, Pope Francis angrily slapped away the hand of a woman who had grabbed his own hand and would not let go. He apologized the next day.2 No one suggested that his transgression—if it was a transgression—had crossed some kind of a line, that whatever other complaints people might have about the Vatican, this was an entirely different, and worse, category of ecclesiastical misconduct. Most of us recognize that the moral universe can’t be navigated simply by distinguishing between violent and nonviolent behavior, or violent and nonviolent people. A scam artist who cheats hundreds of elderly victims out of their life savings seems at least as bad as a music producer who angrily swings a kettlebell during an argument at a college gym—or even a waitress who, when provoked, slams a customer’s head into the bar.
The legal system, too, recognizes the folly of trying to use the presence or absence of violence to draw a bright line between serious and less serious violations. At least it does sometimes. That is why simple assault is not a felony, but bank fraud is. It is why constitutional law makes little distinction between violent and nonviolent police misconduct, and why the internal regulations of law enforcement agencies talk about a “use of force continuum.” It is why many domestic violence intervention programs now focus less on violence per se than on “coercive control,” and why advocates for abused children increasingly argue that the worst forms of household “violence” can be verbal or emotional, rather than physical.
At other times, though, the law does try to use violence as a master category, dividing grave transgressions from minor ones, and serious offenders from those who deserve understanding and mercy. Over the past half century this simplistic approach has been employed most dramatically, and with especially ruinous results, in substantive criminal law, especially in laws shaping the penalties and collateral consequences for criminal violations. Even as the country has begun to retreat from the draconian criminal justice policies adopted in the 1980s and 1990s, the new leniency has typically not been extended to “violent” offenders. The overreliance on violence as a legal category helped to create mass incarceration and now helps to sustain it. Simplistic ideas about violence also helped to fuel the “superpredator” scare in the 1980s, which shrank the role of the juvenile justice system and wound up sending thousands of young offenders to long terms in adult prisons. Today those ideas continue to slow efforts to restore the juvenile justice system to its historic role.
Because some crimes we would ordinarily call violent do not seem serious, and some crimes that are not obviously violent can seem very serious, the category of “violent” crimes winds up being a legal construction, a kind of conceptual gerrymander. The boundaries of the category are set arbitrarily, depending on which offenses, and which offenders, seem to warrant the harshest sanctions. That kind of subjective line-drawing is an open invitation to racial bias, and the category of violent criminals inevitably winds up disproportionately comprised of minority defendants. But because the category remains nominally defined by violence—and violence in the abstract seems so threatening to our safety, security, and civilized society—penal policies that otherwise would seem too heartless and destructive can become acceptable. For the same reason, the fact that so many of the defendants subjected to these policies are Black or Latino can seem an unfortunate by-product of the way things are, rather than the consequence of social choices. In fact, racial prejudice can make the lopsided impact of antiviolence policies look like a confirmation that the targeting is working, that the defendants being locked away for decades really are violent and dangerous. It now seems obvious that this dynamic was part of the reason the “superpredator” theory could gain hold in the 1980s with so little evidence to back it up: when young men of color committed violent crimes, racial prejudice made it easier to label them as monsters.
Criminal law is an effort to respond in principled ways to wrongdoing. The great dilemma of criminal law, faced in virtually every case, is how to reconcile the conflict between two powerful instincts: on the one hand, the pull toward sympathy and understanding, the sense of “there but for the grace of God go I”; on the other hand, the desire for justice, the belief that people are moral agents and should be held accountable for what they do. There is always a temptation to cut the knot by dividing defendants into two categories: those who have erred but remain redeemable, and those who are beyond the pale. But the world is messier, and offenders can’t be so neatly sorted.
Janet Reno, when she was US attorney general in the 1990s, sometimes told federal prosecutors that they needed to distinguish between defendants who needed help getting back on the right path, and the “bad baddies.” When it came to the bad baddies, there was no alternative to locking them up and throwing away the key. I was one of the federal prosecutors who received this advice from Reno. I have always felt fortunate to have worked in the Justice Department when Janet Reno led it. She was an exemplary public servant: wise, skillful, and thoroughly decent. But she was wrong to think that the great dilemma of criminal law—the choice between understanding and judgment—can be addressed by dividing defendants into two fundamentally different groups, one deserving understanding and the other needing condemnation. The overreliance on violence to identify the defendants least deserving of mercy has been a ruinous, decades-long example of that mistake.
If the first lesson of this book is not to oversimplify violence—not to treat the category of violence as having sharp and uncontroversial boundaries—a closely related and equally important lesson is not to ignore or downplay violence because it doesn’t match a stereotyped preconception of what “violence” means. When violence is imagined to be an entirely separate realm of human activity, stemming from the distinctive, fundamentally violent nature of the perpetrators, then a fair bit of what we otherwise might call violence drops out of sight. Violence by police officers becomes “use of force” or “response to resistance”—unless the police, too, are thought to be pathologically inclined to violence, in which case their tactics are described not just as violence but as “brutality.” Either way, we lose the ability to see, simultaneously, the particular concerns raised by violent forms of policing, and the tactical choices that are likely to create circumstances in which the police feel the need to use violence. The simplistic view of violence as a category apart, engaged in by people who are themselves in a category apart, makes it easier to write off the violence in prisons and jails as inevitable, given the violent nature of the people housed in these institutions, and easier not to even count it as “violence,” because the victims are not themselves innocent.
Through a similar process of exclusion, the term “violence” begins to seem inapplicable to the brandishing and use of guns by people imagined to be generally “law-abiding.” Corporal punishment of children gets read out of the category of violence, as well, especially when that punishment is meted out by parents. The danger that violence can be fomented by online incitement or gruesome video games also becomes easier to dismiss if the problem of real-world violence is understood to be principally a problem of people who are fundamentally violent: “bad baddies.” It is a mistake to rely too heavily on the category of violence, to think we can use that category to distinguish easily between truly bad people and people who have merely done bad things. It is a mistake both because it can blind us to the humanity of the people we categorize as violent, and because it can lead us to overlook or to minimize the violence carried out by other people. Making too much of violence has fueled mass incarceration; making too little of violence has discredited police reform.
Simplistic ideas about violence can lead the law astray in yet another way. The category of violence can occlude other categories. Calling something violent can seem inconsistent with characterizing it in other, important ways. But responding intelligently to youth violence requires understanding both that it matters that the perpetrators are young and that it matters that they have acted violently. Juvenile justice went wrong in the 1980s and 1990s partly because of the idea that violent offenses should not be treated as juvenile offenses—that the categories of “juvenile” and “violent” were somehow inconsistent. Responses to rape and domestic violence have sometimes been hindered by an unstated premise that emphasizing the violence in a sexual assault, or in a pattern of intimate-partner abuse, means not seeing the significance of the gender dynamics at play, or the exercise of power and control. The violence in police tactics like stop and frisk can be hard to see, let alone to understand and rectify, without paying attention to how those tactics function as mechanisms of racial subjugation. Violence is not a separate world. It exists alongside and often works in combination with other dimensions of domination, persecution, and victimization.
Violence has always been a particular challenge for the law: not just particularly important to address, but particularly difficult to think sensibly about. The law tries to respond in principled and deliberate ways to violence, but that requires pondering the unfathomable, reasoning about the unreasonable. The Hebrew Bible told the adjudicators of ancient Israel what to do when the task became too difficult. “If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke,” Deuteronomy instructs, “… then shalt thou arise, and get thee up into the place which the Lord thy God shall choose.” There, in the Lord’s place, the priests would provide a judgment.3 But we do not have recourse to that expedient today. We have only the tools of our heads and our hearts. It is incumbent on us to use those tools to the best of our abilities: to think as clearly as we can about violence and how to respond to it, and to be ever vigilant lest our ideas blind us to injustice or harden us against mercy.