Deliberative Constitution for Criminalizing Men

face of a prisoner

Criminal laws are the legal basis for highly disproportionately punishing men. A leading scholar of legal history has emphasized the social construction of crime:

There is no real answer to the question, What is crime? There are popular ideas about crime: crime is bad behavior, antisocial behavior, blameworthy acts, and the like. But in a very basic sense, crime is a legal concept: what makes some conduct criminal, and other conduct not, is the fact that some, but not others, are “against the law.” …

We repeat: crime is a legal concept. … The law, in a sense, “creates” the crime it punishes; but what creates criminal law? Behind the law, and above it, enveloping it, is society; before the law made the crime a crime, some aspect of social reality transformed the behavior, culturally speaking, into a crime; and it is the social context that gives the act, and the legal responses, their real meaning.^

A variety of social contexts – the disciplinary circumstances under which legal scholars write, the neighbors among which legal scholars live, the social and political groups to which legal scholars belong – shape legal culture and law. Not a realm of reason separate from deliberative democracy^, legal scholars’ work exemplifies how human social reality and intensely competitive public deliberation affects the definition of crime and fosters highly disproportionate punishment of men.

In considering the sex composition of prisoners, leading legal scholars have emphasized women. In his highly regarded U.S. history of crime and punishment, the leading scholar of legal history purported to uncover a natural constant:

the weak showing of women, particularly in crimes of violence, is constant, throughout American history; every study of the subject shows it, as does every state, city, or region that has figures for arrests, trials, and convictions.

… The percentage may vary a bit up and down; but women never have their “fair share”; and the more serious the crime, the less likely it is that women commit it. …To this day, {women} make a rather feeble contribution to the criminal nation. …No serious student of crime or criminal justice has the slightest doubt that women, in general, just do not go in for serious crimes, especially crimes of bodily harm, of violence, of bloodshed.^

Note the mock-chivalric invocation of “weak showing”, the wry references to “fair share” and to “feeble contribution,” the professorial reference to “serious student,” and the authoritative, naturalized category “serious crimes.” The author of this text is a male legal professor holding a named professorial chair at Stanford University Law School. He has been president of the American Society for Legal History and president of the Law and Society Association, was a finalist for a Pulitzer Prize in history and has won the American Bar Association’s Silver Gavel Award. His text is an example of a high-status male displaying his resources, in this case verbal and conceptual skills, to females and inferior males. Among humans and other primates, such displays serve to display position in a male dominance hierarchy and solicit mating opportunities from females. As a rule, such displays show no concern for the welfare of inferior males. That’s particularly true for penal punishment of inferior males.

A related case further illustrates the rule. A different male legal scholar studied historical statistics concerning the sex of persons involved in the criminal justice system. He displayed his knowledge in a series of scholarly articles. The first two of these articles were entitled “The Vanishing Female: The Decline of Women in the Criminal Process, 1687-1912” and “The Decline of Women in the Criminal Process: A Comparative History.”^ ^ The “vanishing female” and “the decline of women” are phrases that direct attention and concern to women. To appreciate the value of those phrases, consider substantially equivalent phrases, e.g. “the increasing criminalization of men relative to women.” All the statistics in the second article, and almost all in the first, indicate “percent women.” Despite the use of the phrase “decline of women,” neither article presents any relevant statistics concerning the absolute number of women. The primary claim of this scholarship, carried across two decades of scholarly work, is that women comprised a larger share of persons caught up in the criminal justice system in the past than in the present. That claim hasn’t prompted any concern about the criminalization of men in the present.

Focusing on women’s declining share in persons subject to criminal justice action apparently served two purposes. First, it challenged the leading male legal historian. That alpha-male legal historian claimed that “the weak showing of women {in crime statistics} … is constant {throughout history}.” The challenger, in contrast, asserted that women had their “fair share” {of criminal punishment} in the past, but don’t now. Pushing for a position of disciplinary leadership, the challenging male scholar called for allocating more scholarly attention to women:

This pattern is significant; it should form the foundation for sustained inquiry into the extent and nature of general transformation of the role of women in the criminal process, and perhaps even the changing role of women in society.^

Scholars expressing concern for women in the criminal justice system righteously incant that penal scholarship, policy, and practice has focused on men.^ ^ That’s a misunderstanding. Scholarship, policy, practice concerning incarceration is largely about unsexed prisoners, not men prisoners. Concern for men isn’t publicly valued. Not surprisingly, the deliberative challenger’s conclusions display his promise to provide resources to women. Such behavior is highly correlated with success in legal scholarship and public deliberation more generally. The challenger now holds a named professorship of law at the University of California, Berkeley. He was elected president of the Law & Society Association in 2005.

Another rule in legal scholar’s deliberative competition is that patriarchy is always a successful explanation. The legal scholar concerned about the decline of women in the criminal process exploited this rule with considerable skill:

The data considered in this paper {from 1650 to about 1900 in Europe and North America}, however, covers the period of the intensification of private patriarchy. What I propose is an analysis that focuses on social controls, especially patriarchal controls, to account for female conformity and criminality.^

Rather than merely invoking patriarchy to explain, among other facts, the increase in the number of men in prison per woman in prison, this scholar used “the intensification of private patriarchy” and the emphatic “patriarchal controls.” These terms highlight the male author’s willingness to confront that other group of males who have controlled the females by criminalizing a greater number of men per woman. Even better, this analysis conceptually expands patriarchy:

The “patriarchal control theory” suggested here draws from traditional control theorists, but expands their notion by looking at patriarchy as a concrete and historically variable phenomenon.^

Thus patriarchy, more precisely specified as “the intensification of private patriarchy,” expands into a concrete and historically variable phenomenon that explains the rise in the number of men in prison per woman in prison from 1650 to about 1900. The male author immediately continues with uncanny subtlety:

It looks both at female participation in various structures (reproduction, sexuality, economy), and at the type and intensity of male controls within these structures at different historical moments. Therefore, it asks, how does this theory help us account for the decline in female participation in crime, particularly property crime, during the eighteenth and nineteenth centuries?^

Read again that last “it asks”: the male author has transformed himself into an asexual “it”. That “it”, being asexual, cannot be part of the patriarchy that has controlled women by criminalizing a much higher share of men.

While showing that women accounted for a larger share of crime prior to nineteenth century, the legal scholar is careful not to discredit progress toward women’s liberation. To avoid any possible confusion, the author explains:

I do not wish to be interpreted as arguing that women in the eighteenth century were “emancipated,” for surely they were not. The fact that they were relatively uninvolved in violent crimes throughout the eighteenth and nineteenth century – and almost all the data that addresses this issue point to this conclusion – may be one measure of this.^

Some readers may be confused about how violent crimes indicate emancipation. Taking a rather different perspective on patriarchal controls and violence, a recent collection of feminist scholars’ writings on women, crime, and deviance emphasized:

Women could not be ignored or kept down, but rather, they themselves reacted to situations to effect positive change whether by trading illegally or by murdering their children.^

Truly emancipated women would organize massive women-on-women violence. That would make them free and equal, for men have killed and been killed in men-on-men wars throughout history.

Legal scholarship on judicial review of democratically enacted legislation focuses on systematic malfunctions of legislative politics. While the meaning of “systematic malfunctions of legislative politics” has attracted considerable attention in legal scholarship, the distinction between legal scholarship and legislative politics tends to be based on a rigid, formalistic interpretation of status markers.^ Legal scholars have increasingly emphasized the sort of rhetorical work that legal scholars do:

Punishment is about authority in the first instance and about law, dispassion, and disinterestedness only in certain contexts. Once we realize this, we have to study punishment as “a practice of constructing authority” and not as “the practice of applying laws disinterestedly.”^

Legal scholarship is like punishment. Legal scholars construct themselves as authorities. Concern with creating, maintaining, and reinforcing authoritative representations in communication among non-kin is a common structural feature of legal deliberation, legislative politics, and public discourse in general.

Obviously well-meaning, collegial legal scholarship has identified “democratic breakdown as the cause of mass incarceration.” This scholarship has emphasized encouraging “two underlying anti-carceral forces”:

  1. improved use of criminal justice expertise;
  2. the promotion of empathy for excluded groups and marginalized persons.^

Legal scholarship shares with other fields of public deliberation little expressed concern about the preponderance of men disposed through the criminal justice system. Deliberative failure among legal scholars and criminal justice experts contributes to the problem of mass incarceration.

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