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.

Criminalization Compared to Victimization

face of a prisoner

Criminalization differs greatly from victimization. Federal criminal law has expanded enormously in recent decades. The expansion of federal criminal law has created crimes that many persons don’t know exist and regularly commit.^ These criminal acts almost always don’t have identifiable personal victims. Across wide bounds, prosecutorial discretion controls who is actually charged with crimes. Formal criminalization of everyone raises risks of lawlessness and bias in the exercise of prosecutorial discretion. Making everyone subject to criminal charges separates criminalization from commonly recognized victimization.

Domestic violence law functions much like federal criminal law, but with greater criminal effect. Like federal criminal statutes and the federal criminal law, new domestic violence statutes are regularly added to state criminal codes. Since domestic violence is defined very broadly under domestic violence law, everyone who lives with someone else or has had an intimate relation with someone else is likely to have committed domestic violence. For example, under New Jersey criminal law, a persons who “makes, or causes to be made, a communication … in offensively coarse language, or any other manner likely to cause annoyance or alarm” to a boyfriend or girlfriend, or to an ex-girlfriend or boyfriend, has committed domestic violence. Compared to federal criminal law, state domestic violence law has much greater effect on criminalization because it draws, in aggregate, on a much larger set of state police, prosecutorial, and judicial resources. Expansive criminalization of domestic violence has been central to the development of the extraordinarily high level of incarceration in the U.S..

Criminalization also differs greatly from victimization for commonly understood violent acts. Consider serious injuries from violence in the U.S. in 2010. Police-identified victims suffering serious injuries from violence amounted to only 14% of hospital emergency department visits attributed to injuries from inter-personal violence. Most violent acts that produce serious injury to another person are not brought into the criminal justice system.

Criminalization of violence is biased toward violence against women. Obscured in sensational media reporting of particular violent crimes, the mundane reality is that 95% of police-reported violent victimizations do not involve serious physical injury. Measured in hospital emergency departments visits due to violent injuries, men suffer 59% more violence than do women. In police reports, by contrast, men comprise 28% fewer victims of violence than do women. That comparison doesn’t hold constant the extent of physical injury. Men are more likely to suffer serious physical injury from violence or death from violence than are women. Measuring violent injury not producing serious physical injury requires special survey instruments prone to large non-sampling biases. The relative shares of men and women victims of domestic violence has been a matter of bitter scholarly dispute. But across all circumstances, not just domestic circumstances, men suffer not just more serious physical injuries from violence, but also more physical injuries in general from violence. That sex difference in violent injury is reversed in police-reported violent victimizations.

The selection of acts brought into the criminal justice system is gender-biased against men. The criminal justice system addresses only a very small share of the acts that criminal law criminalizes. Police-identified victims of violence are disproportionately women. Domestic violence law gender-profiles men for arrest. The rapidly expanding federal criminal justice system shows greater anti-men gender bias over time and across the criminal justice system funnel from arrest to being in prison. What men do and what women experience, apart from any objective measure of victimization, is more likely to be the focus for criminal arrest and punishment.

Anti-Men Gender Bias in Official Rape Reporting

face of a prisoner

Within circumstances of extraordinarily high incarceration that is highly disproportionately imposed on men, U.S. official, expert national surveys of rape victimization have been systematically gender-biased against men. If men made to penetrate sexually is counted as real rape, then the best quality U.S. survey found that about 1.3 million rapes of men occur per year. That number is about equal to the findings of rapes of women per year. More generally, rape of men has been greatly under-reported. Rape of women has been inflated over time by victimization survey redesigns. Like anti-men gender bias in discussing and addressing domestic violence, anti-men gender bias in considering rape is deeply embedded in public discourse.

Until 2008, official victimization surveys didn’t cover victimization of inmates. Sexual victimization occurs at a rate about 500 times higher for inmates than for non-inmates. About ten times more men than women are held as inmates. The average number of sexual victimizations per inmate is about equal for male and female inmates. Hence, among inmates in total, men suffer about ten times more sexual victimizations than women do. Not including inmates in rape surveys greatly under-reports rape of men. That under-reporting obscures the reality that reducing incarceration can reduce rape.

Victimization surveys have explicitly or implicitly excluded rape of men. From its inception in 1930 until 2012, U.S. Federal Bureau of Investigation (FBI) national statistical reporting of rape excluded rapes of males.^ Three U.S. Department of Justice’s reports on trends in criminal victimization published up to 1994 reported only female rape victimization trends.^ ^ ^ The Department of Justice reports were based on the most prominent U.S. national survey of criminal victimization, the annual National Crime Victimization Survey (NCVS). NCVS, like the FBI reports, focuses the definition of rape on the act of penetration. The FBI and NCVS fail to recognize a significant number of men made to penetrate sexually another person. The 2010 National Intimate Partner and Sexual Violence Survey (NISVS) estimated that 1.3 million men were made to penetrate sexually other persons. That is equal to the NISVS estimate of women raped (defined as “completed forced penetration, attempted forced penetration, and completed alcohol or drug facilitated penetration”).^ Consistently with gender victimization equality in a non-gender-biased concept of rape, average sexual victimizations per inmate for men and women inmates are roughly equal. Informative reporting of sexual victimization surveys would recognize roughly equal sexual victimization of men and women. But official, expert, national data collections have largely ignored sexual victimization of men.

The most prominent U.S. national survey of criminal victimization has changed its reporting of sexual victimization over decades in ways that obscure its definitions of sexual victimization. Through 1992, the U.S. Department of Justice’s annual NCVS summary reports listed sexual victimization using one heading, “rape.” In 1993, the NCVS report changed the headline category in the main offense table to “rape/sexual assault.” That reform added sub-categories as follows:

Rape/Sexual Assault

Rape/Attempted rape


Attempted rape (n1: includes verbal threats of rape)

Sexual assault ( n2: includes threats)

The new “rape/sexual assault” heading didn’t include men made to penetrate sexually another person. In the 2002 report, an new summary table, presented first in the report (Table 1), listed just the heading “rape/sexual assault.” The subsequent Table 2 provided the above categorical breakdown of “rape/sexual assault.” In the 2006 report, the second table detailing categorizes of “rape/sexual assault” was eliminated from the main report and pushed to a second report containing just statistical tables. In the 2009 report, an inconsistent higher level heading “serious violent crime” was added encompassing “rape/sexual assault,” reported without the above sub-category detail. Threats of sexual assault, which are distinguished from verbal threats of rape, were thus implicitly included within “serious violent crime.” The supplementary publication of statistical tables, which had previously included the rape/sexual assault sub-categories, was eliminated. In 2011, the headings of Table 1 were changed to have both the headings “violent crime” and “serious violent crime.” The heading “rape/sexual assault” was shifted to the former heading, and the new heading “serious domestic violence” was added to the latter heading. Domestic violence includes rape/sexual assault of persons defined as relevant to domestic violence.

Variance in Official U.S. Rape Figures, Benchmarked to 1992

figure sourcefigure for
rape/sexual assault
Source: See rape variance sheet in punishment dataset.
felony convictions of rape in state courts21,655
forcible rape offenses known to police109,062
National Crime Victimization Survey (1)140,930
National Crime Victimization Survey (2)607,000
National Crime Victimization Survey (3)1,034,743
National Intimate Partner and Sexual Violence Survey4,455,111

Official rape figures vary by about a factor of 200. The year 1992 provides the best opportunity to compare different estimates. A revision to NCVS about 1992 produced a published figure for “rape/sexual assault” more than four times higher than the previously published figures for “rape.” Another revision of NCVS about the year 2010 roughly doubled the figure for rape/sexual assault recalculated for about 1992. The 2010 NISVS figure reported for “rape,” scaled to 1992 using the NCVS rape/sexual assault yearly figures, is 32 times higher than the original NCVS figure for rape. The NISVS rape figure scaled to 1992 is 206 times higher than the number of felony convictions for rape in state courts in 1992. None of these figures include within rape or rape/sexual assault men made to penetrate sexually another person. If such sexual vicimization were included, the figure for rapes would roughly double.

Belief that the number of men convicted of rape is too low has been common in public discourse. Official surveys of criminal victimization have worked to support that belief. While maintaining deep anti-men gender-bias, those surveys have been continually redesigned in ways that have produced bigger figures for rapes of women. In reporting rape, official criminal victimization surveys have furthered the criminalization of men.