Practical Implications of Current Domestic Violence Research

In 2009, the U.S. Department of Justice’s National Institute of Justice published, with the usually disclaimer, a ninety-six page Special Report entitled Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges. That report makes clear that anti-men gender bigotry is deeply entrenched in current domestic violence research. To provide equal justice under law, law enforcement agencies, prosecutors, and judges must take seriously the practical implications of anti-men gender bigotry in addressing domestic violence.

Practical Implications of Current Domestic Violence Research deserves careful study. This major, government-funded research review sought to inform practice:

The purpose of this work is to describe to practitioners what the research tells us about domestic violence, including its perpetrators and victims, the impact of current responses to it and, more particularly, the implications of that research for day-to-day, real-world responses to domestic violence by law enforcement officers, prosecutors and judges.^

Domestic violence law typically encompasses violence among family or household members. Domestic violence thus includes parents’ abuse of their children or co-residing children, as well as violence among adult relatives or roommates. While Practical Implications repeatedly refers to domestic violence, it uses the term domestic violence to mean intimate-partner violence.^ Intimate-partner violence, a subset of domestic violence, is more easily gender-stereotyped as men victimizing women. The report’s use of “domestic violence” to mean “intimate partner violence” is significantly misleading.

Practical Implications tendentiously ignores much research indicating that men account for a large share of victims of criminalized domestic violence. Scholars writing in peer-review publications have argued bitterly for decades right up to the present over the share of men who are victims domestic violence or intimate-partner violence. Practical Implications acknowledges that controversy with one dismissive reference to a book published in 1980.^ Practical Implications completely ignores domestic-violence scholars who have seriously challenged gender stereotyping.^ It predominately cites research based on gender-stereotyped intimate-partner violence. That’s not an intellectually responsible approach to reviewing intimate-partner violence research.

Practical Implications encourages criminal suspicion of men. It poses the question, “Do male domestic violence victims differ from female victims?” A reasonable answer might recognize that male domestic violence victims have long been ignored. A reasonable answer might point out that services for male victims of domestic violence are far inferior to those for women victims. A reasonable answer might recognize that the criminal justice system has been oriented toward arresting and prosecuting men, not serving men as victims of domestic violence.

Practical Implications instead promotes unreasonable criminal suspicion of men for domestic violence. Here is the report’s short, two-paragraph answer to the question of how men differ from women as victims of domestic violence:

Research on domestic violence victims brought to the attention of law enforcement and the courts find that male victims differ substantially from female victims. First and foremost, male victims of any specific domestic violence incident are more likely than female victims to be future suspects for domestic violence. …
Similarly, male victims of domestic violence homicides are much more likely than female victims to have been identified previously as abusers of their eventual killers. ^

These declarations prejudicially cast criminal suspicion on men that police officers have identified as victims of domestic violence.

Practical Implications encourages law enforcement, prosecutors, and judges to re-categorize female domestic suspects as victims. The report also encourages sex-biased charging and sentencing practices that favor women. Practical Implications declares:

Implications for Law Enforcement
Specific incidents of domestic violence may not reveal longer term domestic violence patterns, particularly if the suspect is a female and the victim is a male. Police should acknowledge this and encourage suspects who are more typically victims to report future victimization, notwithstanding their current suspect status.
Implications for Prosecutors and Judges
Specific incidents of domestic violence may not reveal longer term domestic violence patterns, particularly if the suspect is a female and the victim is a male. Prosecutors and judges should be sensitive to this fact in charging and recommending sentences for such defendants and in issuing protective orders or fashioning sentences.^

If practitioners don’t recognize here encouragement to gender-profile men for arrest and punishment for domestic violence, the report offers more direct, quantitative recommendations. Practical Implications offers a desultory review of statistics on the share of men in state action addressing domestic violence (re-defined in this report to mean intimate-partner violence):

Perpetrators that come to the attention of the criminal justice system are overwhelmingly male. For example, 86 percent of abusers brought to court for restraining orders in Massachusetts were male, as were those arrested for domestic violence in California and Charlotte, N.C. (as much as 97.4 percent for the most serious cases). In Rhode Island, 92 percent of abusers placed on probation for domestic violence were male. A Cincinnati court study found 86.5 percent of 2,670 misdemeanor domestic violence court defendants to be male. The overwhelming majority of their victims were women: 84 percent in both Charlotte, N.C., and Berkeley, Calif. The 2000 NIBRS multistate study found that 81 percent of the suspects were male and their victims were female. ^

The most nationally representative statistic in that collection is the last mentioned, NIBRS data. NIBRS data for 2000 and 2010 indicates that 78% and 75%, respectively, of persons arrested for domestic violence are male. Practical Implications goes on to offer one-sided numerical standards for justice:

Implications for Law Enforcement
If the ratio of male to female suspects and victims differs substantially from those found above, departments should be alert to potential gender bias in their response to domestic violence. Ongoing training and supervision can address overrepresentation of female versus male arrests.
Implications for Prosecutors
Prosecutors should be alert to gender bias in the response of local law enforcement agencies and re-screen cases if the percentage of female suspects accused of abusing male victims exceeds that commonly found across the nation.
Implications for Judges
If, upon reviewing domestic violence dockets, judges find much higher rates of female-on-male abuse cases than those typically found across the country as a whole, they should be alert to potential gender bias on the part of police and/or prosecutors and ensure that they are presented with sufficient evidence to confirm the correct designation of victims and their abusers.^

These implications address only monitoring whether the the share of females arrested for domestic violence is too high. Men account for about 75% of persons arrested for domestic violence. Credible, nationally representative data on hospital emergency department visits indicate that men account for 42% of hospital visits due to domestic-violence injuries. The justice system currently gender-profiles men for arrest for domestic violence. In contrast to the anti-men gender bigotry of Practical Implications, law enforcement, prosecutors, and judges should be concerned that the share of men among persons being arrested, prosecuted and convicted for domestic violence is too high. Concern for equal justice under law demands concern for men arrested for domestic violence. That’s particularly important in today’s circumstances of widespread anti-men gender animus in suspicion of domestic violence.

Practical Implications on dual arrests also indicates anti-men gender bias. Credible scholarly research indicates that about 40% of domestic violence is mutual.^ Practical Implications states:

A substantial percentage of victims of domestic violence hit their perpetrators back. … A substantial number of victims will not self-disclose their victimization. Consequently, determination of primary or predominant aggressor may not be self-evident.^

Nonetheless, Practical Implications recommends actions to lessen dual arrests:

Implications for Law Enforcement
If the rate of dual arrests exceeds that found on average across the country, law enforcement departments should develop and implement specific primary aggressor policies and protocols.
Implications for Prosecutors
If presented with a dual-arrest case, prosecutors should conduct an independent analysis to determine the predominant aggressor and proceed against that suspect alone.
Implications for Judges
In dual-arrest cases, judges should insist that prosecutors provide evidence that one of the parties was the primary or predominant aggressor and the other the victim. This may be particularly important, as advocates caution that female victims who are arrested along with their abusers may nonetheless plead guilty in order to be able to return home to care for minor children.^

According to Practical Implications, dual arrest figures above the national average indicate a problem, while dual arrest figures below the national average aren’t of concern. The “problem” of dual arrests for domestic violence is addressed through primary aggressor policies and protocols. These policies and protocols gender-profile men for arrest for domestic violence. Showing contempt for the difference between judges and advocates, the “implications for judges” come from advocates’ gender-role-based special pleading:

advocates caution that female victims who are arrested along with their abusers may nonetheless plead guilty in order to be able to return home to care for minor children.

In discussing dual arrest, the “implications for judges” refers to arrested women as “female victims who are arrested along with their abusers.” The report provides no indication of how to identify such women beyond their sex. It doesn’t acknowledge the possibility that among the much greater number of men arrested for domestic violence, some of those men are “male victims who are arrested along with their abusers.”

Practical Implications supports broad criminal suspicion of men for domestic violence. Domestic-violence calls to police numbered about 4 million per year in the U.S. in 2008. Under the question, “Which victims are likely to report domestic violence?” Practical Implications reports:

Implications for Law Enforcement
When a victim reports domestic violence, it probably indicates repeated prior abuse incidents.^

In response to the prejudicial question, “How many abusers are likely to do it again?” Practical Implications encourages conclusion justice-system action:

Implications for Law Enforcement
It is safe to assume that, more often than not, the typical abuser who comes to the attention of law enforcement has a high likelihood of continuing to abuse the same or a different victim, both in the short term and over the subsequent decade at least.
Implications for Prosecutors and Judges
It is safe to assume that, more often than not, the typical abuser who makes it to the prosecutor’s office has a high likelihood of continuing to abuse the same or a different victim, both in the short term and over the subsequent decade at least. While prosecuting specific, discrete incidents, prosecutors should recommend sentences that address long-term patterns of criminal behavior and are based on abuser risk for reabuse. Judges should fashion civil or criminal remedies/sanctions that maximize protection of current and/or future victims from the abuser.^

These prejudicial implications point in the direction of harshly punitive criminal justice system response to roughly four million domestic violence police calls per year. In 2009, the U.S. held 2.2 million persons in prison and jails on any given day. Among the incarcerated, men outnumbered women by ten to one. Practical Implications in effect suggests that highly sex-biased U.S. mass incarceration should be expanded enormously.

Practical Implications indicates that consideration of case-specific facts has little relevance to punishment for domestic violence. Under the question “What factors are not associated with reabuse?” Practical Implications suggests that many facts don’t matter:

Generally, the seriousness of the presenting incident does not predict reabuse, whether felony or misdemeanor, including whether there were injuries or not, or what the specific charge is. Abuser personality types have not been found to be associated with increased risk of reabuse. Actuarial data offer improvement over clinical data. Victim characteristics, including relationship with abuser, marital status, and whether the parties are living together or separated, have not been found to predict reabuse. At least one study has found that victim cooperation does not predict recidivism.^

One implication is that gender bigotry, rather facts, can easily dominate the criminal justice response to allegations of domestic violence. According to the report, the implications are that law enforcement, prosecutors, and judges should be more concerned with (biased) beliefs about generic future risks than with actually committed acts:

Implications for Law Enforcement
Criteria for charges should not be confused with criteria for determining future risk. Abusers cited for misdemeanors are as likely to be dangerous as those charged with felonies.
Implications for Prosecutors
Criteria for charges should not be confused with criteria for determining future risk. Abusers charged with misdemeanors are as likely to be dangerous as those charged with felonies. If the offense against a dangerous defendant is not chargeable as a felony, prosecutors should explore the applicability of enhancement statutes for repeat offenses, multiple charges if appropriate, or maximum allowable sentencing recommendations.
Implications for Judges
Criteria for charges should not be confused with criteria for determining future risk. Abusers charged with misdemeanors are as likely to be dangerous as those charged with felonies. Although constrained by statute, judges should seek to minimize offender risk to the maximum extent allowable by law.^

Practical implications for the burden of proof are explicit:

Implications for Law Enforcement and Prosecutors
Given high base rates of reabusing, the default presumption should be that the defendant is likely to reoffend until proven otherwise. Risk instruments do not significantly improve upon victim perception and basic actuarial data.^

Suspects are to be presumed to be guilty of future offenses unless proven otherwise. Proving innocence of future offense is, of course, infeasible. The reference to “basic actuarial data” refers misleadingly to the bitter scholarly controversy over the gender distribution of domestic violence:

Of course, the most powerful predictor of risk of domestic violence is gender. All of the research concurs that males are more likely to reabuse than females.^

Predicting likelihood of reabuse is much more difficult than evaluating actual abuse. Actual acts, rather than expert prediction, is a much sounder basis for punishing individuals. Orienting domestic-violence punishment to “basic actuarial data” replaces difficult, important justice system responsibility with merely ratifying the power and control of anti-men gender bigotry in Practical Implications and much other domestic violence research.

Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges has broad implications for domestic violence policy, the criminal justice system, and deliberative democracy. Administering equal justice under law is a core responsibility of the state. Family law is constitutional law in everyday life. Domestic violence now accounts for the majority of arrests for interpersonal violence. Particularly in circumstances of extraordinarily high incarceration prevalence and highly disproportionate incarceration of men, more aggressive criminalization of domestic violence should require compelling public reasons.

Practical Implications shows that deliberative democracy and public reason are failing badly. Anti-men gender bias is embedded even in large statistical surveys, technical reports, and statistical overviews issued by major U.S. statistical institutions. Practical Implications highlights the need to develop new approaches to public information, democratic discussion, and democratic accountability.

New Judicial Institutions for Addressing Domestic Violence

In response to sensational public claims about domestic violence against women, judicial officials have largely supported a new regime of domestic-violence emergency law. Common components of this regime include warrantless arrest, mandatory arrest, gender profiling men to lessen arrests of women, no-drop prosecution policies, uniformly issuing as a condition of bail restraining orders that evict persons from their homes and deprive them of custody of their children, and also making such restraining orders easily available through an ex parte civil petitions filed on pre-printed forms. With respect to domestic violence, judicial officials’ primary judicial goals are victim safety and offender accountability.^ To fulfill those perceived judicial responsibilities, state judicial systems have favored concentrating judicial power over domestic violence in courts claiming to have domestic-violence expertise. These institutional changes make domestic-violence emergency law more difficult to monitor and further entrench anti-men gender bias. More radical judicial innovation is needed to provide equal justice under law for domestic violence.

In judging domestic violence, judges have understood their jobs to be ensuring victim safety and promoting offender accountability. Contentious factual disputes about who are victims of domestic violence have been no more presented to judges than they have been presented to the public. Moreover, a domestic-violence case comes to a judge with gender-profiling-based categorization of victim and defendant already established as a parameter of the case. Through tendentious claims about a “cycle of violence” and sensational media reporting of particular domestic-violence tragedies, judges’ attention has been focused on terrible future possibilities rather than actually committed criminal acts. Judges have routinely upheld domestic-violence emergency law.^ ^ ^ Under domestic-violence emergency law, constitutional rights and due process of law are largely obliterated. Serious discussion of defendants’ legal rights and due process of law hardly exists across decades of legal scholarship about domestic violence and detailed analysis of new, specialized domestic-violence courts.^ Democratic failure in public discussion of domestic violence has narrowed the justice system’s responsibility from doing justice under law to ensuring victim safety and promoting batterer accountability.

New judicial institutions have sought to solve the problem of domestic violence as it has been publicly misunderstood. In 2004, a judge in San Joaquin County, California, indicated that domestic-violence cases make up the majority of misdemeanor cases taken to trial.^ He also noted:

I believe the court has to be in a leadership role in the issues that pertain to the criminal justice system. This {domestic violence} is one of the largest areas of criminal law we deal with. To say we are going to stand back and not get involved, it’s an outrage. We have to take a leadership role.^

That judge had served for a decade on a special domestic-violence court that handled pleadings and pre-trial matters for all domestic-violence cases in San Joaquin County. He spoke at a regional hearing of the California Attorney General’s Task Force on the Criminal Justice Response to Domestic Violence. Introduced to talk about “batterer accountability from a judicial perspective,” the judge explained:

I think in San Joaquin, the first issue of accountability starts with those principal players involved in the problem of domestic violence: the law enforcement agencies, health care practitioners, the courts, probation. We have decided among ourselves where our priorities are.
We’ve come together to determine that the biggest issue is to act in one voice. Within that one voice, we have a lot more ability to effect change. …
When I need help, I have Joelle Gomez behind me from the women’s center and district attorney’s office. And we’re much more successful.^

That judicial problem-solving approach to domestic violence is similar to that in other jurisdictions. The Chief Judge in New York State described New York State’s judicial approach to domestic violence in a 2012 law-review article entitled “Ensuring Victim Safety and Abuser Accountability: Reforms and Revisions in New York Courts’ Response to Domestic Violence.”^ The problem to be solved in practice has been fundamentally gender-biased: how to ensuring the safety of women, assumed to be domestic violence victims (“survivors“), and how to punish more harshly men, assumed to be perpetrators of domestic violence (“batterers”).^

New judicial institutions for addressing domestic violence have been constructed upon deep, anti-men gender bias. Since 1996, New York State has established forty specialized domestic-violence problem-solving courts and an additional forty-six integrated domestic-violence problem-solving courts. The Chief Judge of New York State recently described the origins of these courts:

These courts were customized to handle criminal cases involving intimate partner violence, and were instituted with the three goals of promoting victim safety, increasing defendant accountability, and encouraging better coordination among institutions in the criminal justice system already dealing with domestic violence. Leaders within the court system realized that courts could not do justice in domestic violence cases unless judges “received training from experts about the nature of domestic violence,” its effect on the victims, and how to hold abusers accountable.^

The quoted text referring to “leaders within the court system” comes from the New York State’s Lawyer’s Manual on Domestic Violence: Representing the Victim (5th ed.) That volume was issued by the Supreme Court of the State of New York, Appellate Division, First Department. The second page of the Lawyer’s Manual includes laudatory blurbs from leading New York State judges. The fourth page of the Lawyer’s Manual includes a formal disclaimer:

This text is an unofficial publication of the Appellate Division, First Department, Supreme Court of the State of New York, and does not necessarily reflect the view of either the Court or any Justice thereof.

Within the Lawyer’s Manual, the Chief Judge’s text comes from an article from a leading expert in domestic-violence law. While the Chief Judge sensibly used the term “abuser” rather than “batterer” in his law-review article, the Lawyer’s Manual article that he cited makes only a feeble effort to avoid formally gender-stereotyping domestic violence in pronoun choices. The last two sentences of that article’s introductory section make clear its substantive gender stereotyping:

The progress that has been made in the last decade is impressive. However, many barriers to safety and justice remain for battered women and their children.

The article goes on to explain:

The development of domestic violence courts signaled an enormous shift in how the justice system viewed its role in responding to domestic violence. Previously, there was a pervasive sense that courts were compromising their impartiality by learning about domestic violence and applying that knowledge to the cases before them. It took a conscious effort by the leadership of the court system to shift that paradigm and point out that courts simply could not do justice in these cases unless they received training from experts about the nature of domestic violence, its effects on adult and child victims, and the tactics abusers commonly use to manipulate the justice system. Far more emphasis was placed on holding abusers accountable. Excuses for battering such as substance abuse and anger management problems were exposed as baseless, and courts stopped sentencing abusers to programs in lieu of true criminal sanctions.

The domestic-violence expert’s suggestion that the relation between domestic violence and the problems of substance abuse and anger management is “baseless” is nonsensical.^ Nonetheless, that claim has precedent in expert domestic-violence training administered to judges.^ What then is actually the cause of domestic violence according to domestic-violence experts? This domestic-violence expert explains:

Domestic violence is, at its core, an issue of gender inequality. The batterer’s goal is to beat the equality out of his victim.

Oops, the mask of formal gender-neutrality in referring to “the batterer” and “victims” has dropped. There he is battering “his victim.” Judges presumably have been taught that the reason that a drunk woman throws a plate at her boyfriend’s head is because he is trying to “beat the equality” out of her. The domestic-violence expert continues:

Systemic gender inequities facilitate the batterer in this effort. These inequities play out in countless ways when victims seek help from the justice system. Advocates have storehouses of anecdotes, such as when victims are labeled “hysterical” or “incredible” because they allege abuse, or when police refuse to enforce orders of protection because they feel sorry for the abuser denied access to his children, or when courts allow abusers to delay paying child support or maintenance.

The domestic-violence expert then presents an astonishing perspective on gender bias:

When battered women have to fight against gender bias in the courts, they are doubly abused. Courts simply cannot do justice when they make the blind assumption that the parties in domestic violence cases come before them equal in status. Comprehensive and continuous efforts to wipe out gender bias in the justice system are a top priority.^

Gender-profiling men for arrest, prosecution, and punishment for domestic violence is abundantly clear. Without recognized domestic-violence expertise, one can readily recognize that men account for a large share of domestic-violence victims and that domestic-violence experts have argued bitterly over that obvious reality. Any fair review shows that the existence of men victims of domestic violence has been trivialized and ignored for decades. Domestic violence services for men are vastly inferior to those for women. Specialized domestic-violence courts and integrated domestic-violence courts have been built upon authoritative domestic-violence expertise. That domestic-violence expertise has neither recognized fundamental truths about domestic violence nor eliminated gender bias. Domestic-violence expertise has deeply entrenched anti-men gender bias.

Specialized domestic violence court have proliferated as a judicial solution to the problem of domestic violence. The number of such courts in the U.S. has grown from about 42 in 1999 to about 208 in 2009.^ These courts represent a technocratic approach to the democratic problem of domestic violence. Consider, for example, Los Angeles’s specialized court for civil petitions for harassment restraining orders:

The Los Angeles County Superior Court recently revised its case management system to help reduce this political incentive {to grant restraining orders}. Court administrators sensed that civil harassment orders were granted in inordinate numbers, most often by judges with general civil dockets who would see such cases only sporadically {sic}. The Court’s solution was to direct most civil harassment petitions to a single judge. The volume of petitions allowed her to develop expertise in the area, and gave her a better sense of which allegations truly merited an order. She was also chosen because her seniority allowed her greater de facto judicial independence {from media attack}. As a result, grants of petitions fell sharply, with no observable reduction in public safety.^

A dictator can solve democratic problems across a small or large field of action. But a dictator or a “specialized judge” is not a democratic, law-governed solution to a democratic problem.

Integrated domestic-violence courts expand the scope of the special judge-dictator. New York State has pioneered integrated domestic violence courts. These courts combine multiple case types – criminal, family, and matrimonial – within one court. One court thus decides criminal guilt, conditions of criminal and civil restraining orders, alimony payments, child-support payments, and child custody. Judicial action occurs under a “one family – one judge” model.^ Integrated domestic-violence courts represent a unitary, hierarchical family decision-making model with the judge in the position of pater familias. By exposing more defendant interests to a personalized justice-system bargain on any issue, integrated domestic-violence courts increase the justice-system’s bargaining power and discretion.^ They also reduce the accountability of the judicial system for systematic patterns such as anti-men bias in criminal sentencing and anti-men bias in awards of child custody. Integrated domestic-violence courts reduce an important form of accountability: public accountability for equal justice under law.^ ^ ^ ^ The problems of deference to insular claims of domestic violence expertise and lack of public accountability are most obvious in New York State and are largely unacknowledged.^ ^ ^

One can easily imagine an accountability-enhancing alternative to the “one family – one judge” model. Suppose two judges were assigned to judge collaboratively each domestic-violence case. Having two judges deciding one family’s case would demonstrate to families that problem-solving does not depend on authoritative hierarchy. Having two judges decide the case would force more meaningful, informal, private communication among judges about domestic violence cases. Two judges would be able to support each other in rejecting anti-men gender bias masquerading as domestic-violence expertise. Moreover, having two judges would lessen the personal risks that judges face in deciding domestic-violence cases. Lessening the personal risks of fair judgment is particularly important given the deep democratic failure in public discussion of domestic violence.

Specialized and integrated domestic-violence courts have been commonly grouped with problem-solving drug courts. In a resolution issued in 2000, the U.S. Conference of Chief Justices and the Conference of State Court Administrators found:

The public and other branches of government are looking to courts to address certain complex social issues and problems, such as recidivism, that they feel are not most effectively addressed by the traditional legal process; …
There are principles and methods grounded in therapeutic jurisprudence, including integration of treatment services with judicial case processing, ongoing judicial intervention, close monitoring of and immediate response to behavior, multidisciplinary involvement, and collaboration with community-based and government organizations. These principles and methods are now being employed in these newly arising courts and calendars, and they advance the application of the trial court performance standards and the public trust and confidence initiative; and
Well-functioning drug courts represent the best practice of these principles and methods;^

The resolution, entitled “In Support of Problem-Solving Courts,” proposed steps to advance the development of problem-solving courts. The resolution said nothing specifically about domestic violence. However, domestic-violence problem-solving courts (specialized and integrated courts) then had a prominent advocate among the Chief Justices.^ The resolution clearly provided substantive support for domestic-violence problem-solving courts that solve the problem of domestic violence as it has been publicly misunderstood. Subsequent literature on judicial innovation typically groups domestic violence and drug abuse among areas of problem-solving court activity.^

Domestic-violence problem-solving courts seek much different solutions than do problem-solving drug courts. Drug courts seek therapeutic alternatives to traditional retributive punishment for drug users. Domestic-violence courts, in contrast, seek to punish more effectively domestic-violence offenders (“enhance batterer accountability”). Drug courts coordinate rehabilitative services for the defendant drug-user. Domestic-violence courts coordinate services for the man-defendant’s woman-victim. Drug courts operate within a field of public discourse that links the punitive war on drugs to the extraordinarily high prevalence of incarceration. Domestic-violence courts operate within a discursive field of anti-men gender bias and ignorance of domestic violence policies’ contribution to mass incarceration. In practice, domestic-violence problem-solving courts have a much different orientation to doing justice than do problem-solving drug courts. Justice-system action concerning domestic-violence has been more important to the rise of mass incarceration than has been the war on drugs.

Specialized domestic-violence courts and integrated domestic-violence courts have lessened possibilities for rational public accountability and rule of law in addressing domestic violence. These courts embody the idea that domestic violence is special. But family law is not special law in ordinary life. Family law is the constitutional law of ordinary life. Moreover, domestic violence is not a new public concern. Violence within families and households has always been a matter of public action. Domestic violence currently accounts for a majority of arrests for inter-personal violence. Domestic violence law makes sense only as emergency law. Yet that emergency law is invoked more than a million times per year. Narrow invocations of emergency law in response to claims of domestic violence have largely evaded public scrutiny. The public should know truthfully the characteristics of the emergency that demands suspension of established civil rights and elimination of due process under law. Specialized domestic-violence courts narrow judicial responsibility for invoking domestic-violence emergency law. Specialized domestic-violence courts further entrench anti-men gender bias among domestic-violence experts, service providers, and others with large personal investments in domestic violence.

Specialized, domestic-violence courts are not a good, democratic response to democratic failure in public discussion of domestic violence. The public response to domestic violence has made judging domestic violence cases difficult, treacherous, and voluminous work. Domestic-violence law has developed to encompasses a wide range of acts. After an extensive public effort to encourage and streamline filing civil petitions for domestic-violence restraining orders, more than a million such petitions are filed per year in the U.S. Judicial officials evaluate those petitions ex parte, without physical evidence, without witnesses, without a fact-finding jury, and often without any information other than that the petitioner supplies on a pre-printed form. The judicial official must decide whether to issue a restraining order carrying extraordinary legal force. If the judicial official doesn’t issue the order and the petitioner is killed, the judicial official could be burned in a media firestorm.

Because the democratic failure in public discussion of domestic violence encompasses the judicial system, the best hope for upholding the ideal of equal justice under law may be randomization. Recent legal scholarship recognizes fatal weaknesses in knowledge about profiling, policing, and punishing.^ Unrecognized weaknesses in domestic-violence expertise, including deeply rooted anti-men gender bias, are even more severe. This scholarship urges embracing randomization as a means to provide equal justice under law:

No more leaps of faith. When we are at the precipice of reason, faced with competing hypotheses, indeterminate principles, or questionable assumptions, we must stop. Stop rationalizing which hypothesis makes more sense. Stop marshalling better reasons for one derivation of principle over another. Stop legitimizing the questioned assumption. Turn instead to chance. Resolve the indeterminacy by drawing straws, tossing a coin, throwing dice, running a computer algorithm. We need, in the end, to be mature and let chance take over where reason ends.^

The implications of this view are straightforward. Judicial officials could communicate clearly that a civil petition for a domestic-violence restraining order will result in the initial, ex parte restraining order being issued randomly against either the respondent or the petitioner. Randomized initial restraining-order targeting might provide as much protection to the true domestic-violence victim as does the current judicial process of issuing perfunctorily ex parte initial restraining orders to the first party to petition. Randomization would greatly reduce incentives for restraining-order abuse. Randomization would clearly uphold the ideal of equal justice under law in the face of the obvious reality that the judicial system cannot reasonably judge quickly and ex parte more than a million domestic-violence restraining order petitions per year.

A similar approach could be taken to eliminate gender-profiling men for arrest for domestic violence. Where probable cause exists that parties committed domestic violence against each other, police would invoke a randomization protocol that would require the arrest of the person not last arrested for domestic violence. If that decision rule were not determinative, e.g. no party had ever been arrested for domestic violence, police would perform a randomized domestic-violence arrest among the eligible parties. Upon arrest, the criminal-justice system doesn’t always dismiss the innocent and force a plea from the guilty. Yet considerable evidence exists that much domestic violence is low-level and mutual. Randomization might provide a more just justice-system response to the true problem of domestic violence. That’s vitally important given the large share of arrests for domestic violence, the extraordinarily high level of incarceration in the U.S., and the highly disproportionate incarceration of men.

Solving wrongly understood domestic-violence problems doesn’t solve the real problems of domestic violence. Today’s domestic-violence expertise can retain knowledge authority only if the public is kept ignorant of the bitter expert controversy over domestic violence, only if public reason cannot recognize the collapse of good reason in reasoning about domestic violence, and only if deeply rooted anti-men gender bias in addressing domestic violence continues to be publicly accepted. What is regarded as domestic-violence expertise is a stark indication of democratic failure. Institutions of knowledge and personal status unfortunately are particularly resistant to change. Randomization in addressing domestic violence isn’t likely to be appealing, at least initially.^ But randomization may be the best problem-solving approach to the real, current problem of domestic violence in the justice system.

Domestic Violence Policies Central to Mass Incarceration

Since 1980, the prevalence of incarceration in the U.S. has risen to an extraordinary level. U.S. mass incarceration is widely recognized to be a major public problem. While domestic violence policies have scarcely been discussed in that context, a harshly punitive regime of domestic violence emergency law developed in conjunction with mass incarceration. State actions under domestic violence emergency law now account for a majority of justice system actions addressing interpersonal violence. Domestic violence polices are central to the development of mass incarceration in the U.S. from about 1980.

The extraordinary growth in U.S. incarceration hasn’t been well-understood. Recent scholarly work has argued strongly that more aggressive criminalization of illegal drugs (“war on drugs”) doesn’t explain the steep rise in incarceration.^ Increases in sentence lengths also don’t seem to be a major factor.^ ^ At least since 1994, the increase in the prison population (here in the narrow sense excluding jail inmates) seems to have been driven by prosecutors more frequently filing felony charges.^ But what determines prosecutors’ decisions to file felony charges?

A good explanation for the extraordinary growth in U.S. incarceration should encompass persons held in jails. Jail inmates account for about one-third of adults held within U.S. justice-system incarceration facilities on any given day. The flow of persons in and out of jails is much higher than the flow of persons in and out of prisons. Jails are the gateway between incarceration and ordinary liberty. Jail inmates who have committed acts considered to be more serious crimes and who have had repeated spells of incarceration are more likely to become prison inmates. Prisoners begin their experience of incarceration as jail inmates. Systemic interactions throughout the justice system affect the prison population and overall incarceration prevalence.

Beginning about 1976, U.S. states rapidly enacted laws specifying civil processes for issuing domestic violence restraining orders. Civil petitioning for a domestic violence restraining order has developed into filing a pre-printed form that is perfunctorily judged ex parte. Restraining orders have also become a common condition for bail and for a plea bargain following a criminal charge of domestic violence. Restraining orders have also become readily available through petitions for relief from broadly defined harassment among parties not necessarily having a domestic relation. A restraining order can evict a person from her home and deprive her of custody of her children. While domestic violence has always been a crime and judges have always had legal power to issue broad-ranging restraining orders, domestic violence restraining orders and ramifying similar orders have made extraordinary judicial powers ordinary. About 1.2 million initial domestic violence restraining orders are issued per year. Violations of a restraining order can be nothing more than the otherwise ordinary act of making a non-harassing telephone call. Most states have made violating a restraining order a criminal offense. Restraining orders are highly effective instruments for criminalization and incarceration.

A population-weighted index of restraining order law shows sharp growth in domestic violence restraining order laws since the mid-1970s. The restraining-order law index for a state is simply a sum of five equal-value indicators for the existence of specific state laws concerning:

The sum of the indicators is normalized to one. Hence a state with an index of 0% has none of the laws, a state with an index 60% has three of the types of laws, and a state with an index of 100% has all five types of laws. The national index is a 1990-state-population weighted average of the state indices. The national index rises rapidly from 1976 to reach 62% in 1988. That means that most persons in the U.S. in 1988 were subject to more than three categories of domestic-violence restraining order laws. In 1997 the index reached 86%. The rise in extraordinary restraining order law broadly parallels the extraordinary rise in incarceration.

Indices of police and prosecutors’ more aggressive criminalization of domestic violence show rapid growth in the mid-1980s. The police index comprises indicators of written directives to police officers in two categories:

The prosecution index comprises indicators in two categories:

The data collection instrument defines “legal advocacy” with gender specificity and a term that evokes atypical extreme domestic violence:

Legal advocacy is defined by the National Coalition Against Domestic Violence as legal assistance provided to battered women, such as assistance in obtaining restraining orders, accompaniment to court, legal clinics, advocacy, etc.^

The lag in the police and prosecution indices relative to the restraining-order law index suggests that state law increasing the criminalization of domestic violence took time to be institutionalized in local police and prosecution agencies. However, by 1996, all three indices had converged about 80%. Any reasonable measure of domestic violence criminalization will show a large increase from 1980 to 2000. Additional legislation addressing domestic violence has been continually enacted in subsequent years.

Mandatory arrest laws for domestic violence and mandatory arrest for even trivial restraining order violations are part of a broader pattern of bringing more persons into the criminal justice system. An insightful analysis of the collapse of criminal justice in the U.S. highlighted the declining significance of police:

For the better part of a century in the Northeast and Midwest, the ratio of police officers to prison inmates stood, roughly, at two to one. In the South and West, it was closer to one to one. Today, nationwide, that ratio stands at less than one to two.
More than any other statistic, that one captures what is most wrong with American criminal justice. ^

Mandatory arrest laws dis-empower police. They transform police from persons who can solve criminal justice problems at an early stage to bureaucrats who follow procedures to funnel persons into the criminal justice bureaucracy. Arrests for domestic violence have driven the rise in arrests for violence since 1980. Contrary to mythic history, domestic violence has always been a public concern. More aggressive, less discretionary treatment of the long-recognized crime of domestic violence is central to what has gone wrong with American criminal justice.

Expansive criminalization of domestic violence may help to explain some reduction in the highly disproportionate representation of men in prisons and jails relative to women. In 1970, about twenty men were incarcerated in U.S. prisons and jails for every woman incarcerated. By 2010, the U.S. incarceration sex ratio had fallen to about ten. Expansive criminalization of domestic violence has criminalized a wide range of low-level violent activity. Even with aggressive gender-profiling of men for arrest for domestic violence, police confronting obvious ground-level reality arrest a significant number of women for domestic violence. In the U.S., about a million arrests for domestic violence occur per year. About three men are arrested for domestic violence for every woman arrested for domestic violence. Increasing arrests for domestic violence have reduced the ratio of men to women arrested for assault. Arrests for assault systemically increase incarceration risk through creation of a criminal record, heightened justice system supervision, e.g. probation, disruption of family and work ties, and new social ties and values formed with other jail inmates. Expansive criminalization of domestic violence has reduced the sex disparity in persons swept into the criminal justice system. Over time, broader criminalization under domestic violence policies has reduced the high ratio of men incarcerated per woman incarcerated.

Sensational claims about crimes hidden within the home have real effects on the number and sex of persons locked away in prisons and jails. In the U.S., expanded state fiscal capacity and a relatively high general level of crime in the 1970s plausibly helped to enable and push the extraordinary rise in incarceration beginning about 1980.^ ^ The larger fall in the incarceration sex ratio in England and Wales compared to the U.S. from 1970 to 2010 indicates that factors other than domestic violence policies significantly affect the incarceration sex ratio. The relationship between victimization and criminalization and the extent of the bias toward criminalizing men depends on a wide range of policies. Crime, much more so than gender, is socially constructed.

More aggressive criminalization of more broadly defined domestic violence is central to the extraordinary growth in incarceration in the U.S. since about 1980. Domestic violence policies have contributed significantly to increasing the number of persons living in violent places: prisons and jails. Unwillingness to recognize that reality reflects the same problem of deliberative democracy that allowed sensational, false claims about domestic violence against women to become prevalent throughout public discourse. Understanding changes in domestic violence policies is crucial for understanding the rise of mass incarceration.

Prison Communicative Structure Affects Justice-System Performance

Communication isn’t limited to public works. Public works are broadly accessible symbolic works that now compete for attention with similarly situated works. To appreciate the range of communicative structures beyond public works, consider the First Amendment to the U.S. Constitution. It describes forms of personal communication (exercise of religion, physical assembly of persons, verbal address between persons) and forms of public communication (making laws, petitioning the government). It also refers to communication in competition for acclaim (lawmakers making laws) and communication in competition for attention (printers printing newspapers). A broad concept of media that encompasses both newspapers and telephone calls obscures important differences in communicative structure.^

Penal incarceration fundamentally concerns changing a person’s communication opportunities. In the early nineteenth century, the consensus of penal experts was that incarceration should seek to cut off all communication between the prisoner and the outside world. That view has slowly changed. An important 1974 U.S. Supreme Court opinion observed:

Whether an O. Henry writing his short stories in a jail cell or a frightened young inmate writing his family, a prisoner needs a medium for self-expression. (Procunier v. Martinez, 416 U.S. 396, 428, 94 S.Ct. 1800, 1818 (1974), dissenting opinion of Justice Thurgood Marshall)

Self-expression is vital for all human beings, including prisoners. Self-expression emerged as a major explanation for literary authorship in early nineteenth-century British Romanticism. Communication through a variety of communicative structures has personal and public value beyond self-expression. How prisoners’ communication is balanced between public works and personal communication with family and friends affects the political governance of punishment.

Communication across prison walls has been relatively heavily weighted toward public works and away from personal communication with family and friends. Prisoners have been relatively well-integrated across prison walls in the circulation of public works. Prisoners read many more books than persons living in the outside world do. Prisoners watch as much television as free persons do. Prisoners’ opportunities to communicate across prison walls with family and friends, in contrast, are tightly constrained. Personal communication with family and friends across prison walls is typically limited to a small number of personal visits, telephone calls, and letters. Prisoners’ communication with family and friends is greatly reduced relative to now-normal constant, real-time electronic connectivity with friends and family through mobile smart phones.

Prisoners’ communicative position lessens accountability for prisoners’ sufferings. Public works favor communication that encapsulates address third-personally, that emphasizes character, and that is emotionally labile. These formal characteristics tend to make communication with prisoners an experience of temporary empathy, rather than a personal cry evoking accountability. The heavy weight of public works in communication with prisoners biases citizens away from politically effective understanding of prisoners’ sufferings.

Problems of Public Works in Prisoners’ Communication

Prisoners remain members of the polity punishing them. One aspect of that membership is continuing participation in symbolic publics through access to public works: books, recorded music, radio, and television. However, a well-functioning polity is not created and sustained merely with public works. The communicative structure of public works has communicative weaknesses. Those communicative weaknesses can undermine public accountability for imprisonment.

Public works encapsulate relations of address to form a group of third-person equals. A person becomes a member of a work’s public simply by gaining access to the work and directing attention to it.^ Discussing his experience of reading in prison, Malcolm X declared, “Months passed without my even thinking about being imprisoned. In fact, up to then, I had never been so truly free in my life.”^ At the same time, a public work can invite anyone to dwell imaginatively in prison. Actual personal characteristics and physical circumstances are irrelevant:

Even the most misfitting child
Who’s chanced upon the library’s worth,
Sits with the genius of the Earth
And turns the key to the whole world.^
Stone walls do not a prison make,
Nor iron bars a cage;
Minds innocent and quiet take
That for an hermitage;
If I have freedom in my love,
And in my soul am free,
Angels alone that soar above,
Enjoy such liberty.

The imaginary equality of persons in symbolic publics makes prisoners’ public position like anyone else’s. No particular person in such a public has a particular claim on any other. Among a symbolic public, second-person address has no existential significance.

stereotype of — Mary J. Thackeray, Department of Library Extension, Brooklyn Public Library. “What Do Prisoners Read?” The Library Journal, Nov. 1, 1921, p. 900, earlier printed in the New York Times Magazine.

Public works build empathy rather than agency. Public works tend not to encourage readers to evaluate their own choices and make their own moves.^ One ex-prisoner explained:

Now that I’m out of prison I think about the other guys I met in Collins Bay {prison} who sunk themselves in remote crevices of time dwelling on Glenn Miller’s music. Or the ones who bought guitars and practiced ten hours a day, but never learned more than four or five cords. And the guys who build their dreams of a happy, prison-free future on a girl they’ve modelled after someone they knew in grade three. Or the funny ones who only live for the moment when they can get out and they can buy a ’49 Ford, just like the one they had back in ’58. All chromed. If only they can get that car, then everything will be all right.^

Public works have well-bounded narratives that seek to absorb the public in their plots’ characters. Stories of vicious, incorrigible criminals’ horrible acts and of heroic prisoner-revolutionaries struggling against the capitalist-imperialist state’s brutal prison regime are popularly plotted public works. Even works that that do not plot characters often acquire in public circulation a plot that expresses character. For example, readers commonly perceive “who” and “to whom” in reading tribal academic texts. Character is more important than plot in public works.

Public works create labile emotions that don’t motivate action. Modern popular reading (novels) typically includes subplots, changes in location, and developments over many days. Characters’ circumstances often change greatly in location, story-time, and emotional state in brief periods of reading-time. Since texts are fixed and public circulation of texts is temporally organized (“What’s the latest news?”; “What are they reading or watching now?”), a symbolic public’s compassion typically shifts relatively quickly from person to person over time.^ Compassion experienced from public works differs from compassion experienced in a personal encounter. Putting a book down doesn’t imply lack of accountability or ill will. That differs from letting a person down or putting a person down. Scientific research indicates that persons over-estimate the suffering of disabled persons.^ Even extraordinarily heightened textual representations of prisoners’ suffering do not necessarily induce action to help prisoners.

Public works do not imply the responsibilities of ordinary communication with intimates. Public works support voluntary relations among strangers. Relations among intimates have significantly different communicative qualities than relations among persons in a symbolic public. For example, a successful author, imprisoned, wrote poetry. One of his poems presents the difficulty of personal communication with his family:

Fearing
they would be hurt,
or used to blackmail
me, I
never once asked to
see,
speak,
visit,
telephone
my family
cannot know
This lie,
worn
to the softness of a favourite shirt
disintegrates when I touch it.^

Another prisoner explained:

It’s unquestionably a mixed blessing, this business of visits. Visits probably cost an inmate three times as much as they’re worth; a single hour visit is often enough to throw a man into a frenzy for a week; a regular weekly visit can keep an inmate unsettled through his entire term. Nevertheless, I’ve rarely met an inmate who would turn down a visit if it was offered, and many use up their entire mail ration (two letters a week) to arrange for them as often as they can. … The trouble with visits is that they won’t let you forget.^

For prisoners, emotional balance in visits with family and friends isn’t clear:

I had many visits from them, and all of them were bittersweet affairs. … I never tried to figure out whether the pleasure of those visits outbalanced the pain.^

Communication with intimates recognizes difficulties of communication and demands action in response to them:

in an atmosphere tense with the sense that two weeks or two months of the past have to be lived up to date in two hours, the opportunities for misunderstanding are myriad. I won’t even try to remember how many of my nights after visits have been spent penning long, apologetic letters to my girlfriend trying to explain my clumsy behavior to her, her perplexing behavior to me and our duplex confusions together.^

Unlike personal communication, public works suspend time and serve memory authoritatively among strangers.^ In a two-hour movie presentation of a famous inmate’s life, communication difficulties typically play no part in the audience’s relation. For public works, the imperatives of wide public circulation constrain emotional complexity and dynamism in communication. Public works don’t engage persons with prisoners in the way that personal communication does.

Prison Reading and the Life of Eldridge Cleaver

In a scholarly article entitled “Reading in Prison: Structures and Strictures,” a leading scholar of prison libraries and of publications by prisoners explained:

The very act of entering a prison is a critical cultural change at its most basic level. The convict’s first thought, as he sees and hears the gates close around him, is of escape. Reading is one primary strategy for escape and survival when the gates slam shut.^

Public texts help to construct the conventional starkness of imprisonment:

The prisoner’s strategy is to justify his behavior and to survive his confinement by any means necessary. His primary goal is to escape from the control of his keepers. Lacking the means to effect physical escape, he finds a release from and adaptation to the carceral world through literature. No middle ground exists. The keepers use literature to control, the kept to resist.^

This literary effect can be perceived in a brochure that the San Quentin State Prison Library produced in 1963 to celebrate National Library Week. The highly professional prison librarian at San Quentin State Prison apparently asked prisoners to write essays about “what the prison library means to me.”^ An introductory essay by the prison librarian, followed by thirty-one of these essays by prisoners, made up the prison’s National Library Week brochure. Introducing the essays, the prison librarian wrote: “these essays may yet be the deepest and truest responses of the inmates’ attempt at describing their efforts to obtain a deeper awareness of the realities of living.”^ An abridged version of the brochure was printed in the journal California Librarian under the title “…Nor Iron Bars a Cage.”

The prisoners’ essays show considerable appreciation for the realities of writing and reading. One prisoner began his essay thus:

To the imprisoned, books are an extension reaching beyond the walls; an extension which can, quite possibly, save a long-termer from that final de-humanization – the accumulative effect of living for many years in a uniform, officially sexless society. Between the covers of a novel, a man can commune vicariously (but almost tangibly) with the other half of humanity.^

The contrast between “that final de-humanization” and communing vicariously (“but almost tangibly”) between the covers with the opposite sex demonstrates literary control over desire and anxiety about desire. Literary skill — diction and abstraction above that of ordinary communication — help make that writing work. Another prisoner, L. Eldridge Cleaver, also showed high literary skill:

We do not want to suggest that one can read one’s way out of prison, although the point, doubtless, could be argued. But it is largely in books that mankind’s heritage is preserved and transmitted from generation to generation, and a man adequately equipped with this legacy should be equal to the tasks of his age or else civilization is a lie, and hope a delusion.^

Eldridge Cleaver explained, “information is the raw material out of which new ideas are formed.” Yet he also wrote of an “awakening to ourselves” that seems to be related not to particular information transmitted in books, but to a general orientation to the world and to other persons:

if, awakening to ourselves, we can grasp the truth of the universality of humanity and learn to value no man less nor more than another, we will cease to sell or allow ourselves to be sold short, having grown so large that a painted corner, a prison cell, can’t contain us.^

Cleaver’s famous phrase “a prison cell can’t contain us” draws on the ideas of Walt Whitman’s influential work, Leaves of Grass (1855). He and other prisoners showed considerable literary skill in fulfilling a writing assignment that the prison librarian gave them.^

view through text

Immersion in reading and writing affects communication. Thirty-six years after writing about awakening to ourselves for the San Quentin State Prison’s National Library Week brochure, Eldridge Cleaver described a scene of awaking in a much more concrete, conversational style:

I had to change my life. It was heavy, because I was a fugitive. My wife was not a fugitive, my children were not fugitives, but because of me they were locked outside of our country. I began to think I should just check on out. Maybe I’d just blow myself away, and then they could be free to come back home. We had a house in Paris, and I also had an apartment down south on the Mediterranean, a place that my publisher had gotten for me to write. I thought I’d just go down there and blow myself away. I felt so sad, thinking my whole life had come to an end.
I remember that night sitting out on the balcony with my pistol, just waiting for the right feeling to come over me.^

Then, in a less confident voice Eldridge Cleaver spoke again of a stylistically uncanny vision he had written out in a text twenty years earlier:

It was a beautiful Mediterranean night – sky, stars, moon hanging there in a sable void. I was brooding, downcast, at the end of my rope. I looked up at the moon and saw certain shadows … and the shadows became a man in the moon, and I saw a profile of myself (a profile that we had used on posters for the Black Panther Party – something I had seen a thousand times). I was already upset and this scared me. When I saw that image, I started trembling. It was a shaking that came from deep inside, and it had a threat about it that this mood was getting worse, that I could possibly disintegrate on the scene and fall apart. As I stared at this image, it changed, and I saw my former heroes paraded before my eyes. Here were Fidel Castro, Mao Tse-tung, Karl Marx, Frederick Engels, passing in review – each one appearing for a moment of time, then dropping out of sight, like fallen heroes. Finally at the end of the procession, in dazzling, shimmering light, the image of Jesus Christ appeared. That was the last straw.

Sky, stars, man in the moon, a procession of textually and practically influential revolutionary figures, the last straw – this is a difficult text. The relationship to a text then becomes a central focus of the account:

I just crumbled and started crying. I fell to my knees, grabbing hold of the banister; and in the midst of this shaking and crying the Lord’s Prayer and the 23^rd Psalm came into my mind. I hadn’t thought about these prayers for years. I started repeating them, and after a time I gained some control over the trembling and crying. Then I jumped up and ran to my bookshelf and got the Bible. It was the family Bible my mother had given to me because I am the oldest boy – the oldest son.

He then links that material text to a more recent memory:

And this Bible… when Kathleen left the United States, she brought with her a very small bag, and instead of grabbing the Communist Manifesto or Das Kapital, she packed that Bible. That is the Bible that I grabbed from the shelf that night and in which I turned to the 23^rd Psalm.

Then he describes difficulties with the text:

I discovered that my memory really had not served me that well. I got lost somewhere between the Valley of the Shadow of Death and the overflowing cup. But it was the Bible in which I searched and found that psalm. I read through it. At the time I didn’t even know where to find the Lord’s Prayer. I looked for it desperately. Pretty soon the type started swimming before my eyes, and I lay down on the bed and went to sleep.^

While this personal transformation presents many interpretative difficulties, one point is clear: public texts saturated Eldridge Cleaver’s communication. Cleaver’s biography has similarities with that of the great nineteenth-century prison reformer and spiritualist John W. Edmonds. Both experienced harsh public criticism. A book reviewer in the Los Angeles Times described Cleaver’s conversion account as presenting:

a scene so palpably false it defies criticism. And what of Kathleen, his beautiful wife, once as fiery a radical as her husband? Did she too experience a spiritual rebirth? We never find out. There are so many things about Cleaver we never find out it is impossible to believe he has really found the peace he claims.^

Kathleen Cleaver subsequently answered some of the questions about her and Eldridge Cleaver’s relationship:

his public role as a famous “born again Christian” put tremendous strains on our marriage. We grew distant from each other, no longer sharing the same aspirations and beliefs. By the time he ultimately pled guilty to weapons possession and was sentenced in Oakland in 1980, our relationship had fallen apart. During the later summer of 1981, we separated. I took our two children then twelve and eleven with me when I moved to Connecticut, where I went back to college {Yale University}, and then entered Yale Law School. In 1987 we divorced.^

Kathleen Cleaver then worked for the law firm of Cravath, Swaine and Moore and for Yale University. By the 1990s, Eldridge Cleaver was poor, unemployed, and in bad health. Kathleen Cleaver observed in 1997:

Eldridge looked far older than his sixty-one years – his hair had turned white, his shoulders seemed stooped, and his mismatched, poorly fitting suit looked like one salvaged by Goodwill. … Eldridge walked up to me. Still a tall, imposing presence, I looked up as we greeted each other. Suddenly, as if he’d been holding his breath, he blurted out, “Kathleen, I love you!” His words evoked such intensely conflicting emotions, I didn’t know what to say. I scurried away, mumbling something about getting back into the courtroom; seeing how he had deteriorated distressed me.^

Eldridge Cleaver’s conversion narrative has similar literary form and substance to other written conversion narratives throughout history.^ Cleaver’s conversion narrative differs greatly from Cleaver’s personal words to his ex-wife, “Kathleen, I love you!” The public importance of personal communication like those words has not been adequately recognized.

Historical Policy Bias Favoring Newspaper over Personal Letters

Early U.S. communications policy heavily subsidized newspapers relative to personal letters. From 1792 to 1845, a four-sheet newspaper letter sent thirty miles cost only about 4% as much in postage as a four-sheet personal letter sent that distance. For distances over 500 miles, a personal letter cost sixty-seven times as much in postage as a newspaper did. Early nineteenth-century U.S. postal rates made the cost of sending a personal letter about equal to one day’s wage for a male laborer.^ The high cost of postage for letters biased letter-writing toward wealthy persons and business purposes.

The relatively low cost of newspaper postage allowed big-city newspapers to be distributed to far-away rural readers. In 1832, at least 750,000 newspaper copies published in Boston were mailed more than 100 miles away. In 1838, five major cities were the source of about half the newspapers posted. Small-town newspapers bitterly complained about the influx of big-city newspapers. Small-town newspapers fought for higher news postal rates that would improve the position of local newspapers.^

Public figures forcefully expressed the importance of newspapers to the public. Samuel Adams helped to organize the Boston Tea Party, helped to draft the Massachusetts Constitution, and participated in the writing of the Articles of Confederation. Writing to him in 1776, a leading New York newspaper publisher declared:

As a mere Conveniency, the Carriage of News papers is of Importance to more than twenty Times as Many persons as the Carriage of Letters is, and there are very few persons but who are much more solicitous to receive their News papers, than Letters, by the Post. But the great Use of News papers is that they form the best opportunities of Intelligence, that could be devised, of every publick Matter that concerns us, besides communicating many Useful Discoveries in Arts and Manufactories & many moral & religious Truths &c. It was by the means of News papers, that we receiv’d & spread the Notice of the tyrannical Designs formed against America, and Kindled a Sprit that has been sufficient to repel them. But I need not to enumerate the advantages & Importance of a general Circulation of Newspapers, which I think are greater than all of the Letters carried by the Post.^

Benjamin Rush, another leading public figure in the founding of the U.S., proclaimed in an “Address to the People of the United States”:

To conform the principles, morals, and manners of our citizens to our republican forms of government, it is absolutely necessary that knowledge of every kind, should be disseminated through every part of the united states. … For the purpose of diffusing knowledge, as well as extending the living principle of government to every part of the United States – every state – city – county – village – and township in the union, should be tied together by means of the post-office. This is the true non-electric wire of government. It is the only means of conveying heat and light to every individual in the federal commonwealth. … It should be a constant injunction to the postmasters, to convey newspapers free of all charge for postage.^

A bias in favor of public works relative to personal communication is deeply embedded in the historical development of U.S. democracy.

The bias in favor of public works is strongest with respect to prisoners. Benjamin Rush, the U.S. founding father who advocated conveying newspapers “free of all charge for postage,” also advocated constructing penitentiaries. His idea was to replace public punishments, particularly public executions and public penal labor, with private punishments directed toward moral reformation. Solitude and silence Rush described as conducive to moral reformation. With novelistic imagination, Rush wrote:

Methinks I already hear the inhabitants of our villages and townships counting the years that shall complete the reformation of one of their citizens. I behold them running to meet him on the day of his deliverance. His friends and family bathe his cheeks with tears of joy; and the universal shout of the neighbourhood is, “this our brother was lost, and is found – was dead and is alive.” ^ ^

A scholar described Rush’s proposal thus:

Rush proposed placing narrative over sight as the source of penal terror. Separating the public from punishment done in its name, Rush opened up the space for new forms of imaginary identifications. Despite his distrust of novel reading, Rush presumed the very structures of imaginary communion that novelists from Samuel Richardson onward had sought to cultivate. Like eighteenth-century authors who hoped to create a new public through reading and discussion of novels, a public joined together through acts of imagination, Rush suggested that stories and imagined suffering would seal together the community.^ ^

Benjamin Rush was a leading citizen in the leading revolutionary-era city of Philadelphia. In 1790, a “penitentiary house” with sixteen cells designed for solitary confinement was built within the Walnut Street Jail in Philadelphia. In 1821, the Pennsylvania legislature approved funding to build a much larger penitentiary in Philadelphia. This penitentiary, known as the Eastern State Penitentiary, became a world famous model for prison reform. The Eastern State Penitentiary was designed and operated to suppress communication, as completely as possible, for years, for hundreds of prisoners. Suppressing prisoners’ communication subsequently dissipated as a practice and as an ideal. But Rush’s prioritization of public works over personal communication has endured in the balance of prisoners’ access to books, music, radio, and television relative to personal communication with their families and friends.

Prisoners’ Relative Deprivation in Personal Communication

Prisoners have had relatively poor opportunities to use widely available personal communications technologies. From an early-nineteenth-century ideal of suppressing communication through ad hoc liberalization to the present, prisons have significantly restricted visits, mail, and telephone calls between prisoners and their family and friends. In 2005, more than three decades after the development of email, prisoners could not use the Internet or send email.^ Prisoners were not allowed to use mobile phones. Prisoners could not use text messaging, social networks, or other new communications technology. Prices for telephone calls with prisoners were much higher than prices for telephone calls with non-prisoners. That situation remains largely unchanged.

Prisoners have been much better integrated into the public circulation of informative and narrative texts. Most prisoners in U.S. state prisons had access to library services by 1850. About 1875, prison libraries held more books per prisoner than public libraries held books per person outside prisons. At least some state prisoners had access to a wider range of reading material than was typically available in public libraries of that time. In the late 1920s, most prisons had twice weekly film showings for prisoners. Less than a decade after the first public radio broadcasts, a few prisons were wiring individual prison cells to distribute programs from central radios.^ Television is now widely available both inside and outside prisons. While prisoners currently spend about as much time watching television as do free persons, prisoners spend about seven times as much time reading as do free persons.

Lack of concern for prisoners in democratic society isn’t a consequence of prisoners being marginalized in the circulation of public works. Prisoners aren’t marginalized in the circulation of public works. Prisoners are marginalized in personal communication with their families and friends.

Prison Libraries Developed Rapidly Relative to Public Libraries

In nineteenth-century U.S., prison libraries developed rapidly relative to public libraries. The Walnut Street prison in Philadelphia had a prison library not later than 1809.^ The New York State Prison had a prison library that circulated books to convicts before 1819.^ In 1846, when told that prisoners in the state prison at Alton, Illinois, did not have a library, prisoners in the state prison at Charlestown, Massachusetts, spontaneously donated 400 bound volumes, plus tracts and pamphlets, to the Alton chaplain, .^ In the fall of 1848, the Chaplain of the Sing Sing prison in New York reported:

The library of the male prison consists of 825 volumes, and of the female prison of about 500 volumes, besides a Bible and a hymn book in each cell, and a large number of arithmetic and spelling books. All these are in a sound condition, fit to be distributed and read.^

A leading authority on prisons reported:

In 1847, we find libraries existing in most of the state prisons of the country, one of which – that of Ohio – is reported as containing 3,000 volumes.^ ^

States with relatively large populations of prisoners – New York, Massachusetts, Pennsylvania, Ohio, Illinois – established prison libraries prior to 1850. A majority of prisoners in U.S. state prisons probably had access to library services by 1850. Specific information indicates that state prison libraries existed prior to 1860 in 19 out of 33 states that then formed the United States. In 1875, the Eastern State Penitentiary library contained 8,737 volumes. It was then the largest prison library in the U.S. A mid-sized public library in 1875 had 1,050 volumes.^ A mid-sized state prison library in 1875 had 1,938 volumes. The typical state prison library was thus about twice as large as the typical public library. In 1875, state prison libraries held 3.0 books per prisoner. Public libraries, in contrast, held 0.5 books per person outside prisons. Nineteenth-century U.S. prison libraries were well-developed relative to public libraries.

Prisoner-Owned Books in 19th-Century Prisons

In addition to reading books borrowed from prison libraries, prisoners in nineteenth-century U.S. prisons acquired many of their own books. In the fall of 1848, the chaplain of Sing Sing State Prison in New York reported:

many of the convicts have private libraries furnished by themselves and their friends. But no book is allowed, that has not been approved by the chaplain. 172 convicts {out of 610} in the male prison have private libraries, greater or less, from 55 volumes to a single one, each; the whole comprising 1200 volumes.^

The prison library at that time held 825 books.^ Thus about a quarter of the convicts had private libraries, with a total number of books about 50% greater than the total number of books in the prison library. The chaplain of the Auburn State Prison noted that the convicts possessed “bad books.” He described his professional challenge in attempting to eliminate bad books:

“bad books,” in the form of “popular novels,” “histories of robbers, pirates,” &c.; books concerning which Lord Brougham said, that he “sometimes doubted whether that education which gave the ability to read them, did not do more hurt than good.” … These works, it is but justice to myself and the officers of the prison to say, were found in the hands of the convicts when we entered upon our duties. The law now makes it my duty to take these “bad books” from the convicts, and to deposit them with the agent. For this purpose, the cells have been frequently visited, though to little effect, as the prisoners generally conceal them about their persons or in their shops. Hence it is quite difficult for the chaplain to obtain possession of them, without being more of a police officer than seems desirable for one in his position. A considerable number, however, have been obtained. Many others have been burned or otherwise disposed of by the convicts, rather than that they should fall into the hands of the chaplain or agent.^

The chaplain reported that, out of 452 prisoners, 163 “read novels before they came here”, while 110 “read novels since they came here.”^ Reading novels was considered to be morally dangerous. A year later the chaplain lamented:

a considerable number of the prisoners who in their choice of books, almost uniformly reject those that are best calculated to improve their minds and elevate their morals, and either select from the library those works that are least instructive and useful, or devote leisure hours to the perusal of such novels, romances, &c. as they can clandestinely obtain from each other, and from those who have access to the interior of the prison. While the facilities for procuring these works have been considerably diminished during the last two years, it is well known to those who are conversant with the facts in the case, that the convicts still find means to secure a tolerable supply of the later issues of this kind of reading.^

Being in prison limits opportunities for earning money and for searching retail outlets in order to acquire books. Yet as early as 1848, prisoners succeeded in acquiring a considerable number of books from sources other than a prison library. In 1864, the Prison Association of New York noted of prisoners held in Sing Sing prison:

It is an interesting fact that during the year no less than thirty convicts have expended of their own money sums varying from one to eighteen dollars in the purchase of books.^

The number of prisoners who could afford such expenditure was probably a small share of the total number of prisoners. Prison libraries created equal opportunities for prisoners to read books. Despite their extensive development, prison libraries in the nineteenth century weren’t sufficient to satisfy all prisoners demands for books. Prisoners privately acquired a large number of their own books.

Communicating with Prisoners

Public Interest Analysis