Leniency as a miscarriage of race and gender justice.

• Author: Gruber, Aya
• Position: III. Some Cautions Against Viewing Leniency as a Miscarriage of Justice A. Method through Conclusion, with footnotes, p. 1600-1627

1. Method

   Anti-formalism is one of the principle tenets of critical legal theory. Critics resist rights rhetoric, reliance on "objective" methodological deduction, and other "neutral" status quo preserving principles, for good reason. (161) Formalism, without a doubt, can normalize, hide, and reinforce extant unequal power distributions within society. (162) Critics expose formalism's assumption of baseline equality among individuals, reliance on individuals' undiminished capacity to exercise choice, and construction of a narrative of the status quo that reinforces such assumptions. (163) Take, for example, antidiscrimination laws that purport to address gender inequality. Adhering to liberalism's paradigm, these laws claim to achieve formal equality by requiring employers to treat men and women the same for the purposes of hiring, promotion, and termination. (164) Assuming that such laws remedy inequality is problematic to the critic for several reasons. First, the laws only address overt, clearly identifiable, discriminatory treatment, leaving intact more subtle actions and signals that disempower women. (165) Second, antidiscrimination laws cannot address gender inequality that permeates society by way of unequal private relationships, women's disparate responsibility for household management and child care, inequality in education and post-educational opportunities, networking disparities, and the like. (166) Finally, the sameness model fails to account for the most basic biological differences between the sexes. (167)

   The picture painted by formalistic antidiscrimination law is one of women who compete on equal terms with men but sometimes freely choose to "drop out" of the system in order to pursue other priorities (or simply because they can't hack it). (168) Critics respond by attempting to disrupt the dominant picture of gender dynamics in the work place through a variety of techniques of persuasion, including personal narrative. Declaring that the "[p]ersonal [i]s [the] [p]olitical," (169) feminist legal theorists, for example, tell stories about workplace inequality--stories involving harassment, poor treatment while pregnant, and childcare pressures. (170) Critical race theorists similarly use the tool of storytelling to counter assumptions about the status quo and demonstrate the existence of gross inequality in the shadow of antidiscrimination law. (171) These "theorists believe that racism is part of American culture, and that telling counterstories about the victim's experience may help to change the dominant culture." (172)

   It is in this critical vein that feminists, progressive theorists, and reformers tell the stories of victims of domestic violence, intimate homicides, and bias crimes. Prior to the second-wave feminist intervention, the dominant narrative regarding domestic violence characterized it as minor and private and portrayed women as willing partners in or instigators of the abuse. Through telling abuse survivors' stories, reformers publicized that domestic violence is severe and ongoing, women try to leave, those who stay are scared, coerced, or psychologically damaged, and the perpetrators are criminal, deviant, and even deranged. (173) Through painting a new picture of domestic abuse, feminists have been able to counter the social mindset that domestic violence is not an appropriate matter for penal intervention. Similarly, the prevailing image of a provoked intimate homicide defendant is often one of a generally nonviolent man incited to kill by his loved one's extremely violent, deceptive, or immoral act. Through reciting the facts of actual cases, reformers contradicted these assumptions and instead demonstrated that the provocation defense gives cover to sexist and controlling wife killers. (174)

   However, the tool of spectacular narrative carries certain dangers to the progressive program, depending on the context of its use. Certain individual stories have the ability to counter widely held generalities precisely because they are particularly persuasive. (175) Vivid victimhood stories can invoke in listeners a certain amount of emotion or passion that garners immediate support for the implied resolution and primes the listener to interpret any further investigation in that vein. (176) Moreover, vivid stories by their nature lead listeners to attribute an extreme amount of significance to their content, whether by overestimating how often such incidents occur or by giving undue weight to the consequences of such incidents. (177) Inducing a listener to passion, and to believe a topic is significant, can be valuable or troubling, depending on the situation. When narratives truly disrupt dominant, oppressive assumptions, they prove to be beneficial to the anti-subordination agenda. (178) For example, critical scholars object to the widespread belief among society members, especially those of the majority race and gender, that workplace discrimination is exceedingly rare and most such claims are fraudulent. (179) By telling vivid stories of discrimination, critics can counter this belief. In this situation, arousing a bit of passion on behalf of the discrimination victim and creating a belief that her case is significant, either in its representative capacity or because of its ramifications, is extremely methodologically useful. (180) It may, in fact, work better to dispel common false assumptions about the frequency and import of discrimination than counter statistics or deconstructing the problematic nature of the prevailing belief in discrimination's rarity.

   However, criminal law is a specific context in which victim storytelling generally carries a right-leaning valence. Although narratives about battered women, intimate homicides, and bias violence disrupt certain traditionalist beliefs about race and gender based crime, they actually support a larger set of entrenched and subordinating beliefs. As noted in Part I, the overarching governing narrative in criminal law for the past several decades has been one focusing on the plight of victims. Storytelling accordingly has most often been the preferred technique of tough-on-crime politicians, victims' rights reformers, and prosecutors. Stories of innocent, vulnerable victims subjected to brutal violence provided the fuel to the engine of the late twentieth-century penal state. Such stories also have had the effect of hiding those most likely to be actual crime victims (poor people of color with involvement in the system).

   To be sure, progressives have made various attempts to disrupt this dominant cultural script through counter narrative. The most obvious method of undermining the script is publicizing stories involving sympathetic criminal defendants--the wrongly convicted, those who had "good reason" for the crimes, and those with tragic backgrounds. (181) But this strategy, although noble, generally fails. In a contest over who deserves society's compassion, the victim generally prevails over the accused. Society, it seems, has a much higher tolerance for the system mistreating defendants, who are often men of color without impeccable backgrounds, by convicting the factually innocent, punishing the sympathetic, and assessing disproportionate sentences to nonviolent offenders, than for leaving the interests of paradigmatic victims, invariably vulnerable children and other law abiding white citizens, unvindicated. Moreover, in terms of pure volume, tragic victimhood stories far outnumber sympathetic defendant narratives. Reports of extraordinary private brutality and the need to remedy it are far more prone to satisfy the public's salacious curiosity and provide cathartic release than reports of over-policing. Moreover, since the rise of the politic of individual responsibility and neoliberal philosophy in the latter twentieth-century, stories about criminals' poor social background fail to gain significant traction. (182)

   Interestingly, the legal technique that has seemed the most effective at restraining the criminal law leviathan is formalism. From the Warren Court rights revolution, (183) to statistics on mass incarceration, seemingly objective and impersonal arguments about restraining governmental authority, producing utility, or saving money seem to hold the most promise of reversing the punitive tide of American politics. (184) That formalism, normally the bane of the critic, proves to be the potential savior of anti-subordination in penal law and makes sense when one understands the nature of late modern American criminal discourse. Philosopher James Q. Whitman writes about the human predisposition to degrade, which "can be very successfully stirred up by any skilled tough-on-crime politician." (185) Recognizing that "[d]egradation in punishment is a part of human nature, which has not been successfully abolished in the pursuit of our grand republican experiment in the United States," Whitman argues that thoughtful criminal law policy should be an enterprise of "acknowledging the truth of the ugliness around us, in a spirit of frankness, and working with that ugliness." (186) Thus, understanding the "ugliness" of the publicizing and even democratizing of penal policy sheds light on why formalism more than defendant narrative provides the best hope of countering the ruthless and hierarchical aspects of the American criminal system. (187)

   Progressives who tell minority-victim stories not only engage in the discursive technique that has justified and perpetuated unrelenting punitiveness in American criminal punishment, (188) they also specifically seek to aggravate societal disgust and desire to degrade the targeted offenders. There is thus an irony in provocation critics problematizing male defendants' "passion" as a manifestation of their sexist belief systems, and simultaneously fomenting societal passion against those defendants, without questioning the belief systems that may be driving society's...