Legal scholarship illustrates the systemic problem of prisoners’ sex in public deliberation. Legal scholars are highly educated in a field that includes the criminal justice system. Legal scholars, particularly in the U.S., participate in a free, diverse, highly antagonistic public communication. That communication emphasizes deliberative ideals and the production and review of written texts. Yet analysis of procedural and substantive criminal law proceeds largely without reference to the highly disproportionate imprisonment of men. Male legal scholars tend to avoid the subject of prisoners as men, while expressing rather superficial concern for women. Female legal scholars disproportionally write about women. Male scholars express their masculinity and female scholars their material interests by together brutally attacking anyone who shows concern about the suffering of men. Legal scholarship spectacularly fails to recognize the highly disproportionate imprisonment of men.
Communicative freedom within a field is not sufficient to change structural properties of the field. Consider the problem of signaling a change in direction:
a male moves along the vector to the periphery and sits facing away from the group. This is closely watched by the other males who may then ‘notify’ an initiator by approaching, performing a hindquarter presentation and then moving off quickly along their own favoured route. Other males, with their associated females and offspring, then begin to aggregate behind one or other of the initiators so that, over time, the majority come to be oriented in a particular direction, at which point the band departs. …the decision to take a particular travel route cannot be attributed to any one individual, but is distributed across the band as a whole.^
A male is free to propose a different direction of travel. Yet his biological nature and the developmental history of the individuals and the group make it impossible for him to propose a different way for deciding the direction of travel. Similarly, legal scholars, men and women, seem unable to change their orientation toward the highly disproportionate imprisonment of men.