THE PROGRESSIVE LOVE AFFAIR WITH THE CARCERAL STATE.

• Author: Levine, Kate
• Position: Annual Book Review Issue

THE FEMINIST WAR ON CRIME: THE UNEXPECTED ROLE OF WOMEN'S LIBERATION IN MASS INCARCERATION. By Aya Gruber. Oakland: University of California Press. 2020. Pp. xii, 288. Cloth, $29.95; paper, $24.95.

INTRODUCTION

Famed feminist attorney Gloria Allred, pictured above, has a wide smile as she holds up a sign displaying the sentence given to movie mogul and sexual offender Harvey Weinstein. (1) Jurors found him guilty of rape and other charges in February 2020. (2) Twenty plus three, the years Weinstein will spend in prison in New York, represents justice to Allred and many of her progressive, feminist allies. But more "justice" may be in store for this perfect villain. The Los Angeles district attorney obtained an indictment against Weinstein in July 2021; the case is expected to go to trial later this year. (3) Allred may then believe that justice equals decades more behind bars, likely a symbolic "victory" for Weinstein's accusers and their #MeToo supporters, as Weinstein is an unhealthy man in his late sixties. (4)

Harvey Weinstein really is the progressive left's perfect villain. He is a wealthy, unattractive, white, cis, hetero male who worked in Hollywood--the picture of privilege without a sympathetic veneer. His alleged offenses against too many women to name (5) are an ugly display of patriarchy's continued grip on the economic advancement of women. Their choice--submit to his sexual assaults or give up dreams of a Hollywood career--is a familiar, too-bad-to-be-true saga that has already become a feature film and will likely spawn dozens more. (6) You'd be hard-pressed to find many progressives who don't share Allred's sentiments. Indeed, the Weinstein trial and sentence is something of a crowning glory for neoliberal feminism's most recent pas de deux with the carceral state. (7)

The numerous iterations of the role criminal law has played in the feminist movement's development and its impact in the expansion of the carceral state is the topic of Professor Aya Gruber's timely book, The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration, (8) Gruber is a longtime critic of progressive criminal lawmaking in general (9) and the criminal law's attempt to regulate sex in particular. (10) In The Feminist War on Crime, Gruber has expanded the reach and breadth of her scholarship with a concise yet thorough look at the development of mainstream feminism's reliance on criminal law to combat problems ranging from domestic abuse to rape and sexual assault and workplace to college campus harassment.

Along the way, Gruber shows us that this partnership was not inevitable. Indeed, in each wave of the feminist movement, there existed intersectional, race- and gender-conscious, and holistic pockets of feminist organizing (pp. 46-50). These feminists saw what the carceral state could do to not only marginalized poor men of color but women of color too, the alleged beneficiaries of these "protections." (11) Despite these lessons, the carceral feminist movement continues to this day (pp. 199-204).

Gruber lays out a cogent case for her thesis that the carceral partnership between mainly white, upper-middle-class feminists and law enforcement is an underappreciated and deeply problematic current that runs through numerous waves of feminism. We see this current run from early twentieth-century feminists who advocated for "the criminal regulation of drunkenness and lust" (p. 25) to the 1970s second-wave feminists who ushered in mandatory arrest and prosecution measures for domestic violence (pp. 66-67). And we see it in the millennial era's #MeToo movement, which has harnessed the fury of women assaulted and mistreated on campuses and in work settings to advocate for more criminal law and harsher sentencing for sexual offenses.

Gruber is no fan of these criminalization projects, but she absolutely is a feminist. Unlike the mainstream feminists portrayed in her book, however, Gruber views the carceral state as antithetical to advancing the safety and security of all women. (12) Thus, one of Gruber's aims is to encourage "[millennial feminists [to] take the policing and prison abolition movement seriously" (p. 199). In this way, her book illustrates a larger obstacle to combatting our American addiction to incarceration. Progressives often speak out of both sides of their mouths when it comes to mass incarceration. They decry the overuse of the criminal legal system and the brutality, racism, and inhumanity of the carceral state. Yet when it comes to people that progressives themselves identify as villains--employers, (13) police, (14) those who commit "hate crimes," (15) and white-collar or wealthy offenders (16)--they advocate vociferously for new criminal laws, more prosecutions, and harsh individual sentences. (17) Even if one agrees with progressives' list of villains, Gruber shows that for feminism's targets, it is not generally the Harvey Weinsteins who end up incarcerated, but rather poor, young men (and women) of color. (18)

This Review affirms and expands on Gruber's argument about carceral feminism to encompass progressives' prison appetite more broadly. Part I looks at Gruber's book through an "abolitionist stance" (p. 200), a phrase Gruber uses to describe her approach to feminism. Using mandatory domestic-violence arrests as the example, it highlights Gruber's argument about the partnership between feminism and the carceral state. Specifically, it explains how feminism loses its intersectional appeal when it relies on the criminal legal system, and how feminism's connection to carceral solutions problematically buoys the criminal legal system. Part II expands on Gruber's thesis. It illustrates other left-leaning movements' continuous reliance on the criminal legal system by focusing on progressives' carceral solutions to police violence and hate crimes. Finally, Part III examines Gruber's reference to a noncriminal arena--the campus rape reform movement--to question whether an abolitionist stance is theoretically and rhetorically diminished by its link to other types of accountability mechanisms. Should the nascent prison abolition movement entangle itself with other struggles? Does connecting the dehumanization of imprisonment to other potentially unfair punitive responses, whether civil or administrative and public or private, risk losing the clarity of the prison abolitionist movement's narrative and sense of crisis? Because these questions intersect with numerous abolitionist projects, they may be useful beyond the context of this Review.

Gruber's book is a lucid and well-crafted contribution to the criminal law literature. When placed in the context of the larger progressive love affair with the carceral state, it is easy to see the urgency for more rigorous work like The Feminist War on Crime that uncovers the lesser-known facets of our societal addiction to criminal law and punishment.

1. FEMINISM'S LESSONS FOR ABOLITIONISTS

   Gruber acknowledges her abolitionist streak only at the end of The Feminist War on Crime, when she advises young feminists to "adopt an unconditional stance against criminalization, no matter the issue." (19) An abolitionist stance, according to Gruber, means fighting "against policing, prosecution, and punishment as the preferred solution to gender inequality" (p. 199). While she does not explicitly mention abolition until the conclusion of the book, early on Gruber lays out a neofeminist manifesto that could apply to almost any group seeking justice without incarceration. She writes:

   Feminists should not propose new substantive offenses or higher sentences for existing gender crimes. Feminists should oppose mandatory arrest, prosecution, and incarceration. Feminists should ensure a strict line between college discipline and criminal sanction.... Feminists should stop characterizing violence as a function of evil men rather than social decay. Feminists should expend their capital on reforms that provide material aid to the women most vulnerable to violence. Feminists should topple powerful abusers through political action, not through allying with criminal authority that disproportionately harms the disempowered. (p. 18) In other words, Gruber's goal is not to lead the way for this neofeminist movement or a more global abolitionist project; instead, her book contributes lessons to both of these movements. (20) The book is useful for those fighting the carceral state because it cautions individuals to be mindful of how the criminal legal system can swallow up progressive movements, even as the movement's members advocate for decarceration in other spheres.

   This Part will present some of The Feminist War on Crime through an abolitionist stance. Gruber shows how, time and again, mainstream feminism partners with the criminal legal system. (21) She argues that this carceral partnership means ignoring smaller, more intersectional (less white) movements that seek to end prison-backed solutions to gender violence (pp. 52-59). Despite the whiteness of many mainstream feminists, they justify their partnership with the criminal legal system by claiming that increased criminalization will lead to racial, gender, and wealth equality. This is ironic because the criminal legal system does much to maintain white, wealthy, heteropatriarchal dominance. (22) Indeed, feminist reliance on the criminal legal system sustains and legitimizes the criminal legal system writ large, however unintended this may be. (23)

   Gruber cites numerous historical examples of the partnership described above, but among the starkest is the movement for the mandatory arrest of men accused of domestic violence (DV). This push toward nondiscretionary arrests began in the 1970s when mediation, rather than arrest, was the preferred solution to first-time DV calls (p. 68). Feminists presented courts with "victims whose cases had specific characteristics: there was extreme violence...