Two stories loom large in the recent history of the American criminal justice system. Both are tragedies.
The first story is the story of mass incarceration. At the beginning of the 1980s, when I enrolled in law school, the percentage of people behind bars in the United States was roughly the same as in the United Kingdom and Western Europe. Those rates had stayed more or less constant for decades. During the 1980s and 1990s, however, the American rate of incarceration skyrocketed, and it is now five or ten times as high as the rates in Britain, in Europe, or in democratic societies elsewhere in the world. The rate of incarceration in the United States has dropped a little in recent years, but we still lock up a far greater share of our people than any other sizeable country on earth. We are not just worse than the United Kingdom and Western Europe; we are worse than Russia or China. We have 5 percent of the world’s population and 25 percent of its prisoners. And the people we lock up are disproportionately dark-skinned and poor: people of color are 30 percent of the American population but 60 percent of all prisoners.
Mass incarceration has had devastating consequences in the United States, not just for prisoners but also for their families and their communities. It has ruined lives, sucked state budgets dry, and distorted our politics. It has been a decades-long train wreck.
The second story is the story of police reform. At the dawn of the twenty-first century, police reform seemed like a success story. The entire field of law enforcement had been transformed by the philosophy called “community policing”; the central idea was that police should work hand-in-hand with communities instead of holding themselves apart. Affirmative action programs had radically changed the demographics of agencies that only a few decades before had been nearly all male and all white. Police departments had accepted civilian oversight. A new generation of command officers had brought unprecedented levels of thoughtfulness and sophistication to the profession. The police had learned that they could work with their constituents, open themselves up to outside criticism, and at the same time do something many thoughtful people had believed was beyond the power of the police—namely, reduce crime.
In the early 2000s I sat in a university conference room with a group of very smart, very reflective police chiefs from across the United States. They had been called together to try to figure out what the next big thing in policing should be. Remarkably, almost none of the chiefs thought there was any need for a next big thing. They thought policing had been fixed, and that reformers should turn their attention elsewhere. Many people outside policing thought that, too. It was common at that time for scholars and reformers to talk optimistically about the promise of “new governance,” and when they did so, they often pointed approvingly to community policing to illustrate what they had in mind.
Today it is difficult to find any informed observer who believes that law enforcement is fixed and can be left alone. We are back where we were at the very beginning of the 1980s, when there was a widespread sense that American law enforcement was in crisis—or even, perhaps, the late 1960s, when America itself seemed in crisis, in significant part because of the police. In the spring of 2020, when a nationwide wave of protests drew tens of thousands of Americans out of quarantine and into the streets, the principal grievances were, once again, about law enforcement. It is not just past efforts at police reform that have been discredited. By the spring of 2020, the very idea of “reforming” the police had been thrown into question. For many Americans, the police seemed beyond reform; they needed to be abolished, and replaced with something radically different.
To a very great extent, each of these two stories—the train wreck of mass incarceration and the collapse of police reform—is a story about how the law understands and responds to violence.
Mass incarceration has been driven in large part by fears about violent crime. Those fears provided much of the fuel for the explosive growth of prison populations in the 1980s and 1990s, and they are helping to keep our imprisonment rates sky high today. Roughly half of the people currently serving prison sentences in the United States have been convicted of offenses classified as violent. If we let everyone else out, our national incarceration rate would be similar to the rates in Russia, Cuba, and Rwanda. If we want to start looking more like England or Ireland or France or Germany in this respect, we will need to dramatically reduce our punishments for violent crime.1
That will be hard, because there is a very widespread assumption that violent crime is the worst kind of crime, and that violent criminals need and deserve long sentences. Several years ago, for example, California voters approved a ballot initiative that made it easier for some prisoners to apply for parole. A huge part of the debate over the initiative had to do with whether or not it applied to violent offenders. The opponents said it did. The supporters said it did not. The shared, unstated assumption was that if we do expand parole, we do not want to expand it for violent offenders. The category of violence does a lot of work in American criminal law. And the story of mass incarceration, it turns out, is in part a story about the growing importance of the category of violence in American criminal law, and about changing understandings of violent crime and violent criminals.
The failure of police reform, on the other hand, is partly a story about a decline in the salience of violence in the rules that govern law enforcement, and in our thinking about the police more broadly. There have been times when police reformers in the United States thought a lot about police violence. But the police chiefs in that university conference room in the early 2000s weren’t thinking much about police violence. And the champions of community policing in the 1980s and 1990s had not focused on police violence. It had fallen off the radar screen. Partly as a result, the explosion in the use of military equipment and tactics by American police departments in the 1990s and early 2000s did not receive the attention it deserved. Neither did the pervasive, everyday violence of “stop and frisk”—a tactic which some police departments greatly expanded in the late twentieth century and early twenty-first century, and which they characterized as fully consistent with, and even an instrument of, community policing. Despite the controversy in the 1990s about discriminatory traffic stops, the violence associated with those stops, and with investigatory detentions of pedestrians, received comparatively little attention.
The reason American policing today seems once again to be in crisis has a lot to do with violence: the violence of military-style policing, the violence of stop and frisk, and above all else the violence of police shootings. The protests in 2020 were not about “police misconduct.” They were not about incivility or haughtiness. They did not focus on invasions of privacy, or the use of informants. Like the demonstrations several years earlier, following the deaths of Eric Garner in Staten Island and Michael Brown in Ferguson, Missouri, the marches in 2020 were a response to police violence, especially the extraordinarily high rate at which American police forces kill young men of color. The spark this time was the killing of an unarmed Black man named George Floyd by police officers in Minneapolis. But the protesters’ signs also bore a litany of other Black Americans killed by the police in the preceding years: Eric Garner, Michael Brown, Tamir Rice, Freddie Gray, Breonna Taylor, and many more.
Unfortunately, the police reformers of the late twentieth and early twenty-first centuries largely lacked a vocabulary for the problem of police violence. Violence as a category was not a significant part of how they organized the world of police behavior. Neither was it—or is it today—a significant part of the legal rules regulating American police. William Stuntz, perhaps the most perceptive scholar of American criminal law in the 1990s and early 2000s, marveled at “the chasm between the mass of rules and regulations governing where the police can look and what they can touch when they look there, and the virtual absence of any constitutional constraint on when the police can strike a suspect.”2
The twin tragedies of contemporary criminal justice in the United States thus both have to do with violence. More precisely, they have to do with ideas about violence: how the legal system understands violence and tries, or does not try, to tame it. Those ideas are the focus of this book. This book is about how American law thinks, and sometimes fails to think, about violence. It is about the significance the law gives to the line between violent conduct and nonviolent conduct, where it draws that line, and what assumptions it makes about how violence operates. Is violence always worse than nonviolence? How is violence defined? What causes violence, and how is it best controlled? Is violence rooted in the character of violent people or in the circumstances they confront? The answers that the law gives to these questions are more complicated and more varied than we often imagine. The ideas about violence embedded in the law are deeply entangled with race, with gender, with class, with the pictures we carry in our heads of what America is and what it can be, with our ideas about human nature, and with our aspirations for justice.
I have spent my career thinking about criminal justice, first as a prosecutor and then as a law professor. I wrote this book because I have become increasingly convinced that thinking sensibly about criminal justice requires thinking sensibly about violence, and that thinking sensibly means, first and foremost, thinking clearly: identifying and being explicit about what we usually take for granted. The main themes of this book will be descriptive and analytical, but I will draw some morals, as well, and I might as well flag them at the outset.
Nothing in this book will suggest that the concept of violence is incoherent, or that the law would be better off without it. Violence is an evil—sometimes a necessary evil, and often a great evil. Law should try to minimize it. But this book will show that the term “violence” is vaguer than we typically realize, and that our attitudes toward violence are often inconsistent and poorly thought out. Moreover, the fuzziness of the category, and the slipperiness of the judgments we attach to it, can and often do allow legal rules about violence to mask racial or class prejudices. I will argue that the effort to divide up the world into the violent and the nonviolent, or into any other sharply drawn dichotomous categories, blinds us too often to the gradations that actually characterize our collective life. When embraced uncritically by the law, the binary distinction between violence and nonviolence can therefore stunt our moral judgments. But I will also suggest that we can go astray, and often do go astray, by excusing violence too readily or refusing to name it.
This is not a book about the true nature of violence. I am not a historian, psychologist, or sociologist. Nor is this a book about the law’s complicated relationship with violence, the way that law simultaneously opposes and embraces brute force. Those are topics of paramount importance. My focus, though, will be on something equally important: how the law thinks about violence—which is to say, how violence is understood, and how the concept of violence is employed, in legal rules and legal discourse.
Strictly speaking, of course, the “law” doesn’t think about violence; the people who make and apply the law do. And they do not always think the same way. The ideas about violence reflected in the law have changed over time, and different areas of law often incorporate different thoughts about violence. Even within a particular field of law at a particular moment in history, there are frequently conflicting ideas about violence. To borrow the phrasing of the anthropologist Mary Douglas, law doesn’t itself think, it doesn’t itself have a mind, but it does provide “commitments for thinking with.”3 And those commitments are variable and often contradictory.
Moreover, law isn’t a closed system. Legal reasoning draws, inevitably, on ideas that aren’t themselves jurisprudential: scientific theories, moral beliefs, cultural assumptions, and folk understandings. Beliefs about violence reflected in legal rules and legal debates provide a window into this broader universe of claims and intuitions about how violence should be understood and addressed. But legal ideas about violence are also significant in their own right, despite—and sometimes precisely because of—how varied and contradictory they can be. Ideas about violence embedded within the law shape and justify many of the constraints under which we live: the demands that law makes of us, the protections that law offers, and the often quite dramatic intrusions that legal institutions make into our lives.
Ideas about violence can be found in many areas of law: from tort law and family law to the law of evidence. If there is a jurisprudence of violence, though, its heartland is criminal law. Criminal law is the field of law principally charged with responding to violence. Indeed, responding to violence is often described today as the chief mission, the central justification, of criminal law. This book concentrates, accordingly, on ideas about violence in criminal law and in its adjacent fields: criminal procedure (which contains the most important rules regulating the police), juvenile justice (a separate, parallel set of rules and institutions for addressing misconduct by minors), the operation of jails and prisons, and the intersection of criminal law with the constitutional protections for free speech and the right to bear arms.
My focus will be on American law, with some occasional detours into its English antecedents. There would be obvious advantages to a less parochial, more comparative approach. American law is what I know best, however, and tracing how ideas about violence play out in this particular legal system is work enough for one book. So for the most part I will put to the side how the concept of violence is employed in legal systems outside the United States. In this respect, I will try to gain in depth what I sacrifice in breadth.
Staying focused on American law, moreover, will let me take advantage of a different kind of breadth: comparing assumptions about violence in substantive criminal law—the law defining offenses and prescribing punishments—with the corresponding ideas in criminal procedure, juvenile justice, prison law, and the implementation of the First and Second Amendments. These cross comparisons are important, because it turns out that the law thinks very differently about violence in different contexts. We will want to ask whether those differences are justified, or whether instead they reveal inconsistencies and blind spots in how we talk about violence.
Before turning to these comparisons, it will help to lay some groundwork. Chapter 1 will therefore introduce three different sets of ideas about violence—sets of ideas that the rest of the book will then trace through different fields of the law. The three sets of ideas correspond to three sets of questions about violence. First, there are beliefs about the significance of violence. How much does it matter, and in what ways, if conduct is violent rather than nonviolent? Second, there are ideas about the definition of violence. Where should the line be drawn between the violent and the nonviolent? Third and finally, there are assumptions about the nature of violence. How does violence operate? How does it start, and how does it stop? Is violence mainly the product of temperaments, of circumstances—or of something else?
Chapter 1 explains why answering these questions can be surprisingly difficult: why, for example, the definition of violence can prove slippery, and why our assumptions about the nature and the moral significance of violence are more complicated than we often recognize. Some of the explanation, I’ll argue, has to do with a couple of rhetorical moves frequently encountered in discussions of violence: tit for tat, and the calling out of hypocrisy. Our side has to be violent, we think, given the violence of our opponents. And, given their violence, their complaints about our violence can’t be taken seriously. But Chapter 1 will also explore how beliefs about violence are complicated by ideas about gender, class, and race, and by American exceptionalism.
The remaining chapters of the book track these questions and ideas about violence over various legal domains. Chapter 2 focuses on the law’s treatment of violent crime. The idea that violent crimes are the worst kinds of crimes, and that violent criminals are the least sympathetic of criminal offenders, is nearly pervasive in contemporary discussions of crime and punishment. But that idea turns out to be relatively new, dating back roughly half a century. Where did it come from, and what consequences has it had?
Over the past several decades criminal law also has come to reflect, more and more, a view of violence as characterological rather than situational—a property of individuals, not just of actions. The influence of this idea can be seen, for example, in laws prescribing stiff mandatory sentences for repeat violent offenders. Modern criminal law increasingly reflects a particular idea about how violence operates: that it is driven by the dispositions and characteristic behaviors of particular, aberrational individuals; that violence is in perpetrators’ hearts, not in the situations in which they find themselves. This is not a new view, obviously, but it is new for criminal law to embrace it so enthusiastically. Chapter 2 will examine why lawmakers have increasingly tended to treat criminal violence as characterological instead of situational, and will pay particular attention to the distressing role that racial bias appears to have played in this development.
Chapter 3 focuses on criminal procedure, the set of rules that govern how the police operate. How do the ideas about violence reflected in those rules compare with the ones that shape substantive criminal law? In some ways, we will see, they differ dramatically. Unlike substantive criminal statutes, which increasingly treat violent crime as a category apart, qualitatively worse than other criminal offending, and deserving of especially harsh punishment, the rules governing the police do not focus much on police violence. There are only slight differences, doctrinally, between a police officer telling me to stop and a police officer grabbing me and forcing me to the ground, or between a police officer demanding entry into my house and a police officer breaking through the window. Few special rules distinguish violent police misconduct from other forms of police misconduct. And criminal procedure is far less thoroughly dominated than substantive criminal law by characterological understandings of violence. Chapter 3 will ask what accounts for these differences, and whether they are connected with the disappointing progress of police reform over the past several decades.
Chapter 4 examines the law’s response to the overlapping problems of rape and domestic violence. Both of these crimes are typically committed by men against women, and the legal treatment of each has been shaped by ideas about gender and sexuality as well as by ideas about violence. We will explore how understandings of violence in rape law, and in responses to domestic violence, have been shaped not only by ongoing controversies about the nature and extent of male domination, but also by the long, troubled intersection of race with allegations of sexual assault in American history. We will ask what has been gained, and what has been lost, when reformers have emphasized the violence in rape and in domestic assault—and, conversely, when the defining attributes of these forms of victimization have been found in something other than physical violence, such as patriarchy, or power and control. And we will examine long-standing debates over whether perpetrators of rape and domestic assault should be seen as aberrational or instead as alarmingly normal. What changes when these forms of violence are traced to patriarchy or “rape culture,” rather than to the pathological dispositions of individual men?
Chapter 5 focuses on violence by children and teenagers. The legal treatment of juvenile violence, especially adolescent violence, has changed dramatically over the past half century. What do those developments—which include the “superpredator” scare of the 1980s, the “zero tolerance” movement in school discipline, changes in the rules for prosecuting minors as adults, and new constitutional restrictions on the punishment of underage offenders—tell us about shifting understandings of violence, and of adolescence? Sometimes youth violence is attributed in part to the age of the perpetrators, and sometimes it is viewed as particularly shocking given the age of the perpetrators—an indication that the perpetrators, in some sense, are not normal children or adolescents. Sometimes violence by minors is thought to be less serious, or more forgivable, than violence by adults, but sometimes the opposite assumption is made. What accounts for those differing determinations? What role does race, in particular, play in the social construction of juvenile violence? In addition to exploring all of these questions about how the law treats violence by minors, Chapter 5 will also explore the law’s treatment of violence against juveniles. Here, too, we will find conflicting impulses. Family law and child welfare law place great importance on protecting juveniles from violence, and even from the mere exposure to violence. But violence against juveniles is often excused, at least if it stays within bounds. Youth violence and violence against youth are typically treated as two separate problems. But Chapter 5 will ask whether that is itself a mistake, given that children who are treated violently are more likely to be violent against others.
The subject of Chapter 6 is violence in jails and prisons. Not all carceral institutions are as dangerous as we often imagine them to be, but some are, if anything, worse. Violent attacks on inmates from guards or from other inmates often seem tacitly accepted, if not actively encouraged, as part and parcel of a custodial sentence. The cultural understanding of prison rape has changed in recent years; it is not quite the object of mirth in popular culture that it used to be. Nonetheless, sexual assault in prison still tends to be treated far less seriously than sexual assault outside of carceral institutions. And to a large extent this is true of all violence behind bars. Officially, physical assault is as serious a crime in prison as it is in the outside world. Unofficially, though, violent crimes in prison are often treated as though they do not entirely count. Prisons and jails are the starkest and deadliest example of zones of exception: areas where the normal rules and assumptions about violence seem suspended. Chapter 6 will explore the links between reactions to carceral violence and underlying ideas about the nature and origins of that violence, and to assumptions about the purpose of jails and prisons.
The final chapter, Chapter 7, asks how ideas about violence shape legal protections for free expression and for owning, carrying, and using firearms. The legal rules that are the focus of Chapter 7 are partly constitutional—the ways in which the Supreme Court has interpreted and applied the First and Second Amendments—and partly statutory: the “stand your ground” laws that, in most parts of the United States, now encourage gun owners to use their weapons to defend themselves and their property. There are some points of continuity between the ideas about violence underlying these legal doctrines and the ideas underlying criminal law. Most importantly, Second Amendment law is increasingly animated by some of the same ideas about the nature of violence that can be found in criminal law, especially the idea that violence tends to be characterological rather than situational, the product of individual dispositions rather than the circumstances in which people find themselves—for example, the presence or absence of guns. But there are also significant respects in which the ideas about violence underlying the legal treatment of speech and guns differ from the ideas encountered in criminal law. Unlike criminal law, First and Second Amendment law doesn’t treat violence as highly significant and as categorically worthy of special condemnation. First Amendment law tends to give little importance to violence: speech that threatens violence or seems to celebrate violence generally isn’t treated differently from speech that threatens or celebrates any other social ill. As for the legal protections given to the gun owners under Second Amendment law and “stand your ground” laws, these treat the resort to lethal violence as something that, far from being categorically worthy of censure, is often to be welcomed and respected.
If this book has a central lesson, it is that the law should avoid thinking about violence simplistically, as a category wholly apart. The sphere of violence does not have sharp or uncontroversial boundaries. Violent conduct is not always more threatening and less excusable than other forms of victimization. And people who engage in violence are not always fundamentally different from the rest of us; violence can be as much a product of circumstance as of character. None of this is to say, though, that violence is not real, that it is simply a label we put on things we don’t like, that we’d be better off discarding the category. There are two terrible costs when the law oversimplifies violence. The first is that we wind up demonizing a category of people who are defined to a large extent arbitrarily and, inevitably, to a large extent by race. The second cost, equally damaging, is that we wind up ignoring violence that doesn’t fit our preconceptions.