UCLA Law Review Volume 59, Issue 6
The structural and political dimensions of gender violence and mass incarceration are linked in multiple ways. The myriad causes and consequences of mass incarceration discussed herein call for increased attention to the interface between the dynamics that constitute race, gender, and class power, as well as to the way these dynamics converge and rearticulate themselves within institutional settings to manufacture social punishment and human suffering. Beyond addressing the convergences between private and public power that constitute the intersectional dimensions of social control, this Article addresses political failures within the antiracism and antiviolence movements that may contribute to the legitimacy of the contemporary punishment culture, both ideologically and materially.
This Article analyzes how the U.S. prison and foster care systems work together to punish black mothers in the service of preserving race, gender, and class inequality in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each system inflicts on black communities, and the way in which their intersection in the lives of black mothers helps to naturalize social inequality. I hope to elucidate how state mechanisms of surveillance and punishment function jointly to penalize the most marginalized women in our society while blaming them for their own disadvantaged positions.
The juvenile justice system was designed to empower its decisionmakers with a wide grant of discretion in hopes of better addressing youth in a more individualistic and holistic, and therefore more effective, manner. Unfortunately for girls of color in the system, this discretionary charter given to police, probation officers, and especially judges has operated without sufficiently acknowledging and addressing their unique position. Indeed, the dearth of adequate gender/race intersectional analysis in the research and the stark absence of significant system tools directed at the specific characteristics of and circumstances faced by girls of color have tracked alarming trends such as the rising number of girls in the system and the relatively harsher punishment they receive compared to boys for similar offenses. This willful blindness must stop. This Article discusses the history and modern status of the juvenile justice system as it relates to girls of color, showing how it does not, in fact, relate to girls of color. There is hope, however. This Article concludes with policy recommendations, focusing on practical solutions and tools that will help decisionmakers exercise their considerable discretion to serve, rather than disserve, girls of color. The message to system actors is simple: Open your eyes! We owe that to our girls.
This Article explores the race, gender, and class dynamics that render poor Black women vulnerable to racial surveillance and harassment in predominately white communities. In particular, this Article interrogates the recent phenomenon of police officers and public officials enforcing private citizens’ discriminatory complaints, which ultimately excludes Black women and their children from publicly subsidized housing in traditionally white neighborhoods. The Article suggests that these particular mechanisms represent a confluence of the racially exclusionary workings of the social welfare state and the criminal justice system. I thus argue that the concerted effort of welfare and criminal policing institutions, together with private actors, to restrict the housing choices of poor Black women functions in ways that are analogous to the formally repudiated racially restrictive covenant.
Over the course of more than a century, structural gender bias has been a remarkably durable feature of U.S. juvenile justice systems. Consequently, as these systems have developed over the years, reducing gender bias and addressing girls in helpful, rather than harmful, ways has required specific and concerted efforts on the part of federal and state governments. Currently, there are a number of positive trends in juvenile justice, including policy and practice that is increasingly developmentally centered and data driven. The question for those focused on girls in the juvenile justice system is how to ensure that girls are the beneficiaries of these positive trends.
This Article discusses the history of federal leadership on girls’ issues and then considers the impact on girls of current trends toward developmentally centered and data-driven juvenile justice. It considers the application of developmentally centered policy in relation to girls who experience family violence and those who are commercially sexually exploited. The Article then examines the movement toward data-driven decisionmaking for its potential to reduce embedded gender bias and particularly bias at the intersection of race and gender. It examines the impact on girls of the increasing use of assessment instruments and the consequences of greater reliance on evidence-based practice as further illustrations of the new data-driven approaches. Throughout, the Article discusses the implications of these trends for girls and suggests ways that systems can ensure that girls’ issues are considered and addressed.
This Article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization. The selective blindness of prison rape discourse to counter-stereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counter-stereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counter-stereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counter-stereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.
It is well known that sexual abuse occurs within the correctional system. That female correctional staff commit a significant proportion of that sexual abuse is met with discomfort bordering on disbelief. This discomfort has limited the discourse about female correctional workers who abuse men or boys under their care. Scant scholarship exists that addresses the appropriate response to sexual abuse by women; even less addresses sexual abuse by female correctional workers. Likewise, feminist jurisprudence on sexuality and desire does little to illuminate the motivations of women who engage in sexual misconduct or abuse, much less women who abuse men or boys in custodial settings. What the literature does acknowledge is that female sex offenders receive less-harsh sanctions overall than male sex offenders; they are even less likely to be prosecuted or punished when the victim is male and in custody. Additionally, although female correctional workers have access to significant power by virtue of their roles, that power may be diminished by a confluence of gender, race, and class. The literature also acknowledges that female correctional staff’s entry into the correctional system was a great success for reformist feminists and that women have become power players within the correctional system because of their ability to supervise both women and men. Despite this status, however, women still experience sexual discrimination and harassment, both from male staff members and from male inmates. For black female correctional workers, gender discrimination is compounded by race and class discrimination.
This Article examines female-perpetrated sexual abuse in custodial settings and its place at the intersection of race, class, and gender in order to disentangle complex and overlapping narratives of abuse, sex, desire, and transgression. Ultimately, this Article confronts our discomfort with and reluctance to acknowledge the fact that women sexually abuse men and boys in custody, and it offers possible explanations for these behaviors.
In our society, individual acts of intentional discrimination function in concert with historically created vulnerabilities; these vulnerabilities are based on disfavored identity categories and amplify each injustice and injury. Although anyone can be a victim of housing discrimination, women of color suffer distinct collateral injuries from barriers to housing that are collective and cumulative in nature. At the intersections of race and gender, the welfare and dignity of black women and Latinas are undermined by the national failure to enforce fair housing and fair employment laws, by the concentration of poverty in neighborhoods inhabited largely by blacks and Latinos, by the criminalization of poverty, by the proliferation of punishments inside the criminal justice system, and by the expansion of the collateral consequences of arrests and criminal convictions in society at large. Produced by a plethora of public policies and private actions, these injuries entail more than denials of rights and resources to individuals. They evidence the existence and extent of a concentrated political attack on communities of color. Women play a central role in these practices because punitive policies are almost always legitimated by allegations of nonnormative behavior by poor people and people of color, allegations that occlude the actual intersectional vulnerabilities created by multiple forms of raced and gendered exploitation inscribed inside the routine practices of contemporary capitalism. This Article delineates how housing and employment discrimination combine to make black women and Latinas particularly vulnerable to surveillance, arrest, and incarceration. It shows how race and gender discrimination make reentry into society especially difficult for women ex-offenders from aggrieved communities of color. It establishes the historical causes and consequences of moral panics about the putative misbehavior of women of color, and it concludes by proposing a combination of litigation, legislation, and social mobilization to address the execrable consequences of intersectional discrimination and mass incarceration.
The U.S. criminal justice system is striking in its severity. Developments in criminal sentencing practices over the past several decades make the criminal justice system not only harsher than it was at the beginning of the twentieth century, but significantly more punitive than any other Western criminal justice system. Mandatory minimums, recidivist statutes, and the war on drugs, among other factors, have caused the prison population to skyrocket, with more people being sentenced to imprisonment for longer periods than ever before.
While the U.S. Supreme Court has been active in setting limits on the imposition of capital punishment, it has maintained a hands-off approach to noncapital sentencing, allowing sentencing practices to develop almost unchecked for decades. States and the federal government are thus given significant freedom to develop criminal justice policies as they see fit, and the result has been an increasingly punitive system that has strayed beyond the boundaries imposed by the U.S. Constitution. The Eighth Amendment to the Constitution provides a protection against cruel and unusual punishments, but the doctrine as developed by the Supreme Court fails to adequately enforce this prohibition and therefore allows states to impose punishment that is cruel and unusual.
This Comment proposes a new framework for reviewing noncapital sentences to ensure that they remain within the constraints imposed by the Constitution. Specifically, this Comment argues that Eighth Amendment review of noncapital sentences must include a comprehensive analysis of the defendant’s culpability to ensure that the sentence imposed is truly proportional to the crime committed. In addition to protecting against the unconstitutional imposition of criminal sentences, this culpability framework will also create a better fit between crime and punishment, which will further the goals of punishment and improve the criminal justice system.