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Investigating Difference: Human and Cultural Relations in Criminal Justice [3rd ed.]
 978-0133012309

Table of contents :
Cover......Page 1
Title Page......Page 2
Copyright Page......Page 3
Dedication......Page 4
Contents......Page 6
Foreword—Karen Pugliesi......Page 13
Preface......Page 14
Alternate Versions......Page 15
Acknowledgments......Page 16
Chapter 1 Introduction: Investigating Difference—Sarah Prior and Lynn Jones......Page 18
Third Edition Roadmap......Page 19
Chapter Overview......Page 20
Reference......Page 21
Some Notes on Terminology......Page 22
References......Page 24
Difference is Socially Constructed......Page 25
Difference Assumes a Norm or Standard That Reflects Power and Privilege......Page 29
Difference Matters......Page 30
Law Plays a Critical Role in Creating and Maintaining Difference; It Can Also Be Used to Ameliorate the Negative Consequences of Difference......Page 32
Differences and Their Consequences Can Be Changed......Page 34
Difference and the Pursuit of Justice in a Globalized World......Page 36
References......Page 37
Chapter Objectives......Page 39
Intersectionality of Identities......Page 40
Interlocking Oppressions......Page 42
Microaggressions......Page 44
Microaggressions in Everyday Life– Jenna Fejervary and Sarah Prior......Page 45
Racialization......Page 46
Privilege......Page 48
Reconstructing Intersectionality......Page 49
References......Page 50
The Advantages of Communication Competence......Page 52
Examples of Communication Competence in Criminal Justice......Page 53
Law Enforcement and Development Model of Intercultural Sensitivity (DMIS)–Marianne Nielsen and Rebecca Maniglia......Page 54
The Impact of Diversity on Communication......Page 55
Mentoring of Women in Law Enforcement– Dennis Catlin......Page 57
The Importance of Nonverbal Communication......Page 60
Critical Challenges to Communication......Page 62
Ethnocentrism......Page 63
Critical Skills for Competent Communications......Page 64
Communication Competence in Criminal Justice Organizations......Page 65
References......Page 66
Chapter Objectives......Page 68
Enter the Grassroots Specialty Court Movement......Page 70
Distinguishing Features of Specialty Courts......Page 71
Drug Courts: The First and Most Prevalent of the Specialty Courts......Page 72
Other Types of Specialty Courts......Page 74
Mental Health Courts (MHCs)......Page 75
Veterans Treatment Courts (VTCs)......Page 76
Domestic Violence Courts......Page 77
Alternative Dispute Resolution– Phoebe Morgan......Page 78
And Yet . . . the Unintended Consequences......Page 79
The Future of Specialty Courts......Page 80
References......Page 81
Part Two Categories of Difference: Gender and Sexuality......Page 84
Some Key Concepts......Page 86
Constructing Difference: Creating, Maintaining, and Enforcing Gender Difference......Page 88
Feminist Criminology and Theories About Gender Inequalities......Page 90
Gender and Criminal Offending......Page 93
Gender-Based Violence and Gendered Victimization......Page 95
Gender Inequalities and the Administration of Justice......Page 97
Gender and Justice Professions......Page 99
Globalization and Gender Injustices......Page 101
An Intersectional Approach to Climate Change– Nancy Wonders......Page 102
Creating Gender Justice......Page 104
Questions for Review......Page 105
References......Page 106
Chapter Objectives......Page 108
Constructing Sexual Orientation and Gender Identity......Page 109
The Status of Lgbtq Individuals in Criminology and Under Law......Page 112
Victimization: Sexual Orientation, Gender Identity, and Gender Expression......Page 116
Offending: Policing and Criminalizing Sexual Orientation and Gender Expression......Page 120
Justice Work and Sexual Orientation......Page 122
Transgender Individuals and the Criminal Justice System– Sarah Prior......Page 123
Questions for Review......Page 125
References......Page 126
Suggested Websites for More Information......Page 129
Chapter Objectives......Page 130
Understanding the Role of Difference in the Victimization Experience......Page 131
Biases Against Marginalized Groups in NCVS......Page 132
Violence Against Women Statistics......Page 134
Victimization Theories: A Focus On Gender and Power......Page 135
The Victim’s Role and Experience Within the System: Revictimization......Page 137
Compassion Fatigue and Self-Care Among Victim Advocates: Transcending Self-Sabotage Through Aggressive Self-Love– Myra Ferell-Womochil......Page 141
Contemporary Issue: Gendered Injustice in Campus Sexual Assault......Page 142
Victims’ Rights and Difference......Page 145
Questions for Review......Page 147
References......Page 148
Part Three Categories of Difference: Class and Race......Page 150
Chapter Objectives......Page 153
What Is Social Class?......Page 154
Why Do We Have Social Classes?......Page 158
Social Class and the Definition of Crime......Page 162
Social Class, Criminology, and Crime......Page 165
Social Class and Victimization......Page 169
Conclusion: Social Class and the Future of Justice......Page 170
Homelessness and the Criminal Justice System: Repaving the Path–Daniel Horn......Page 171
Questions for Review......Page 173
References......Page 174
Chapter Objectives......Page 178
Origins: History of Whiteness......Page 180
White Privilege: Facing Facts......Page 181
Excerpt from White Like Me: Reflections on Race from a Privileged Son, by Tim Wise, pp. xiii–xiv......Page 182
Whiteness and Offending......Page 183
Whiteness and Victimization......Page 185
Whiteness and System Professionals......Page 187
Courts......Page 188
White Privilege Revisited: A Systemic Perspective......Page 189
Questions for Review......Page 190
References......Page 191
Chapter Objectives......Page 192
Historical Context......Page 193
Native American Offenders......Page 196
Native American Victims of Crime......Page 198
Violence Against Women Act: More Revisions Needed for American Indian and Alaska Native Women– Linda Robyn......Page 199
State-Corporate Crime and Environmental Injustice on Native Lands– Linda Robyn......Page 201
Native American Service Providers......Page 202
References......Page 204
Considering the Consequences of Assumptions......Page 207
Re-examining the Consequences of Difference......Page 208
Historical Legal Context......Page 209
Contemporary Context (Post-Civil Rights Era)......Page 210
The “War on Drugs”......Page 211
Policing Practices......Page 212
Policing Practices Related to Offending Rates......Page 213
African Americans as Offenders......Page 214
Understanding African-American Offending......Page 215
Data on African-American Offending......Page 216
Understanding the Importance of Intersectionality as it Relates to the Punishment Strategies Applied to Young, African American Girl– Stephani Williams......Page 218
Hate Crime Victimization......Page 219
Innovation and Cooperation: Bridging the Police–Community Divide......Page 220
Conclusion......Page 222
References......Page 223
Chapter Objectives......Page 226
Gold Mountain, Transcontinental Railroad, Sugar Plantations, and Agricultural Farms: Early Wave of Asian Migration, 1848 to 1930......Page 227
Immigrants with Human and Social Capital Versus War Refugees: Post-1965 Asian Migration......Page 228
Institutionalizing Racial Discrimination: Asian Immigrants and U.S. Immigration and Citizenship......Page 229
“The Chinese Must Go!” A History of Asian Immigrants Encountering Violence and Hate Crimes......Page 231
“An Isolated Boy in a World of Strangers”: Asian Americans as Offenders......Page 233
Model Minority Myth– Lynn Jones......Page 234
“The Working Man’s Opportunity to Move Up the Ladder”: Asian Americans as Service Providers......Page 236
Questions for Review......Page 237
References......Page 238
Part Four Categories of Difference: Immigration and Race......Page 240
Introduction......Page 242
Colonial America (1620–1776)......Page 243
Post-Colonial America (1815–1850)......Page 244
Post-1920 to Present......Page 245
Political Rhetoric, Media Representations, and Anti-Immigrant Attitudes......Page 247
Crimmigration– Raymond Michalowski......Page 249
Criminal Immigrants......Page 251
Immigrants as Victims......Page 253
Questions for Review......Page 255
References......Page 256
Chapter Objectives......Page 258
Latino Demographics......Page 260
History......Page 261
Race, Space, and Belonging: The Battle for Ethnic Studies in Arizona–Grace Gamez......Page 263
Perpetrators......Page 265
Practitioners......Page 268
Questions for Review......Page 269
References......Page 270
Introduction......Page 273
Moral Panic......Page 275
Moral Panics as Ideology......Page 277
Perceived Immigrant Threats and Justice Policy– Lynn Jones......Page 278
A Discourse of Threat......Page 279
Immigration Policy......Page 282
Questions for Review......Page 285
References......Page 286
Part Five Categories of Difference: Forgotten Difference......Page 288
History of the Juvenile Justice Movement......Page 290
Juveniles as Offenders......Page 293
A Case for an Intersectional Approach to Criminal Justice: Gender-Specific Programming in Juvenile Justice– Lisa Tichavsky......Page 295
Juveniles as Victims......Page 296
Mental Health Issues......Page 297
Zero Tolerance Policies, Policing in Schools, and the School-to-Prison Pipeline......Page 298
Sexual Abuse-to-Prison Pipeline: New Issues of Gender......Page 299
Waiver to Adult Court and Mandatory Sentencing......Page 300
Juveniles as Service Providers......Page 301
Conclusion......Page 302
References......Page 303
Who Are the Elderly?......Page 305
Crimes Committed Against the Elderly......Page 306
Physical Abuse......Page 307
Neglect......Page 308
Crimes Committed By the Elderly/Elderly Offending......Page 309
The Impact of Aging and Infirm Inmates on the U.S. Prison System......Page 311
Summary......Page 314
References......Page 315
Introduction......Page 317
Disability, Labels, and Stigmatization......Page 318
Persons with Disabilities and Interpersonal Violence......Page 320
Criminalizing Disability: Persons with Disability and Structural Violence......Page 321
Individuals with Disabilities As Employees in the Criminal Justice System......Page 324
Future Directions for Disability Justice......Page 325
References......Page 326
Historical Background......Page 328
Religious Freedom......Page 329
Religious Groups......Page 330
Native Americans......Page 331
Islamophobia......Page 333
Antiabortion Movement......Page 334
Religiously Motivated Bias Against Individuals Who Are Lesbian, Gay, Bisexual, Transgender, or Queer (LGBTQ)......Page 335
Religious White Supremacy......Page 336
Religion Among the Incarcerated......Page 337
Questions for Review......Page 338
References......Page 339
Reference......Page 340
Chapter 21 Reconstructing Difference for Criminal Justice and Social Justice—Lynn Jones and Sarah Prior......Page 341
References......Page 344
Contributors......Page 346
Credits......Page 350
A......Page 354
C......Page 355
E......Page 356
I......Page 357
L......Page 358
N......Page 359
R......Page 360
S......Page 361
V......Page 362
Z......Page 363

Citation preview

Third Edition

Investigating Difference Human and Cultural Relations in Criminal Justice Sarah Prior and Lynn Jones, editors

330 Hudson Street, NY, NY 10013

Vice President, Portfolio Management: Andrew Gilfillan Portfolio Manager: Gary Bauer Editorial Assistant: Lynda Cramer Senior Vice President, Marketing: David Gesell Field Marketing Manager: Thomas Hayward Product Marketing Manager: Kaylee Carlson Senior Marketing Coordinator: Les Roberts Director, Digital Studio and Content Production: Brian Hyland Managing Producer: Cynthia Zonneveld Managing Producer: Jennifer Sargunar Content Producer: Purnima Narayanan Manager, Rights Management: Johanna Burke Operations Specialist: Deidra Smith Creative Digital Lead: Mary Siener Managing Producer, Digital Studio: Autumn Benson Content Producer, Digital Studio: Maura Barclay Full-Service Management and Composition: iEnergizer Aptara®, Ltd. Full-Service Project Manager: Sadika Rehman Cover Design: StudioMontage Cover Art (or Cover Photo): ecco/Shutterstock Printer/Binder: RR Donnelley Cover Printer: RR Donnelley Text Font: Times LT Pro Copyright © 2018, 2009, 2000 by Pearson Education, Inc. Manufactured in the United States of America. This publication is protected by copyright, and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise. For information regarding permissions, request forms, and the appropriate contacts within the Pearson Education Global Rights and Permissions department, please visit www.pearsoned.com/ permissions/. Acknowledgments of third-party content appear on the appropriate page within the text. PEARSON and ALWAYS LEARNING are exclusive trademarks owned by Pearson Education, Inc. or its affiliates in the U.S. and/or other countries. Unless otherwise indicated herein, any third-party trademarks, logos, or icons that may appear in this work are the property of their respective owners, and any references to third-party trademarks, logos, icons, or other trade dress are for demonstrative or descriptive purposes only. Such references are not intended to imply any sponsorship, endorsement, authorization, or promotion of Pearson’s products by the owners of such marks, or any relationship between the owner and Pearson Education, Inc., authors, licensees, or distributors. Library of Congress Cataloging-in-Publication Data Names: Northern Arizona University. Criminal Justice Collective, issuing body. Title: Investigating difference : human and cultural relations in criminal   justice / The Criminal Justice Collective of Northern Arizona University. Description: Third edition. | Upper Saddle River, New Jersey : Prentice Hall,   [2016] | Includes index. Identifiers: LCCN 2016046579 | ISBN 9780133012309 | ISBN 0133012301 Subjects: LCSH: Criminal justice, Administration of—United States. |   Discrimination in criminal justice administration—United States. |   United States—Social conditions. Classification: LCC HV9950 .I58 2016 | DDC 364.97308—dc23 LC record available at https://lccn.loc.gov/2016046579

10 9 8 7 6 5 4 3 2 1

ISBN 10:  0-13-301230-1 ISBN 13: 978-0-13-301230-9

Dedication To our Criminology and Criminal Justice students, past, present, and future, and to any others who are grappling with the important questions about difference, inequality, and justice. To our supportive partners and lovely children who helped us along the way. You are the reason we do this work.

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Contents Foreword—Karen Pugliesi  xii Preface xiii Instructor Supplements  xiv Alternate Versions  xiv Acknowledgments xv

Chapter 1 Introduction: Investigating Difference—Sarah Prior and Lynn Jones  1 Third Edition Roadmap  2 Chapter Overview  3 Reference 4

Part One Framing Difference  5 Some Notes on Terminology  5 References 7

Chapter 2 Conceptualizing Difference—Nancy A. Wonders  8 Chapter Objectives  8 Difference is Socially Constructed  8 Difference Assumes a Norm or Standard That Reflects Power and Privilege  12 Difference Matters  13 Law Plays a Critical Role in Creating and Maintaining Difference; It Can Also Be Used to Ameliorate the Negative Consequences of Difference  15 Differences Overlap and Intersect with One Another  17 Differences and Their Consequences Can Be Changed  17 Difference and the Pursuit of Justice in a Globalized World  19 Questions for Review  20   •   References  20

Chapter 3 Conceptualizing Difference Through an Intersectional Lens—Sarah Prior and Lynn Jones 22 Chapter Objectives  22 Intersectionality of Identities  23 Interlocking Oppressions  25 Microaggressions 27 Microaggressions in Everyday Life– Jenna Fejervary and Sarah Prior  28 Racialization 29 Privilege 31 Reconstructing Intersectionality  32 Questions for Review  33   •   References  33

Chapter 4 Talking Through Our Differences: Intercultural and Interpersonal Communication—Marianne Nielsen and Rebecca Maniglia  35 Chapter Objectives  35 The Advantages of Communication Competence  35 Examples of Communication Competence in Criminal Justice  36 Law Enforcement and Development Model of Intercultural Sensitivity (DMIS)– Marianne Nielsen and Rebecca Maniglia  37

v

vi  Contents

Developing Communication Competence  38 The Impact of Diversity on Communication  38 Mentoring of Women in Law Enforcement– Dennis Catlin  40 The Importance of Nonverbal Communication  43 Situational Context  45 Critical Challenges to Communication  45 Stereotyping 46 Ethnocentrism 46 Naming 47 Critical Skills for Competent Communications  47 Communication Competence in Criminal Justice Organizations  48 Questions for Review  49   •   References  49

Chapter 5 Making Difference Work Within the Justice System: Specialty Courts—Christine Arazan  51 Chapter Objectives  51 Enter the Grassroots Specialty Court Movement  53 Distinguishing Features of Specialty Courts  54 Drug Courts: The First and Most Prevalent of the Specialty Courts  55 Drug Courts Internationally  57 Other Types of Specialty Courts  57 Mental Health Courts (MHCs)  58 Veterans Treatment Courts (VTCs)  59 Tribal Healing to Wellness Courts  60 Domestic Violence Courts  60 Alternative Dispute Resolution– Phoebe Morgan  61 And Yet . . . the Unintended Consequences  62 The Future of Specialty Courts  63 Questions for Review  64   •   References  64

Part Two

Categories of Difference: Gender and Sexuality  67

Chapter 6 Gender, Crime, and Justice—Nancy A. Wonders  69 Chapter Objectives  69 Some Key Concepts  69 Constructing Difference: Creating, Maintaining, and Enforcing Gender Difference 71 Feminist Criminology and Theories About Gender Inequalities  73 Gender and Criminal Offending  76 Gender-Based Violence and Gendered Victimization  78 Gender Inequalities and the Administration of Justice  80 Gender and Justice Professions  82 Globalization and Gender Injustices  84 An Intersectional Approach to Climate Change– Nancy Wonders  85 Creating Gender Justice  87 Questions for Review  88   •   References  89

Chapter 7 Sexual Orientation, Gender Identity, and Justice— Lynn Jones and Sarah Prior  91 Chapter Objectives  91

Contents  vii



Constructing Sexual Orientation and Gender Identity  92 The Status of Lgbtq Individuals in Criminology and Under Law  95 Victimization: Sexual Orientation, Gender Identity, and Gender Expression 99 Offending: Policing and Criminalizing Sexual Orientation and Gender Expression 103 Justice Work and Sexual Orientation  105 Transgender Individuals and the Criminal Justice System– Sarah Prior  106 Conclusion 108 Questions for Review  108   •   References  109   •   Suggested Websites for More Information  112

Chapter 8 Victimization in the Context of Difference— Brooke de Heer and Lynn Jones  113 Chapter Objectives  113 Understanding the Role of Difference in the Victimization Experience 114 Ncvs and Victimization Statistics  115 Biases Against Marginalized Groups in Ncvs 115 Violence Against Women Statistics  117 Victimization Theories: A Focus On Gender and Power  118 The Victim’s Role and Experience Within the System: Revictimization 120 Compassion Fatigue and Self-Care Among Victim Advocates: Transcending Self-Sabotage Through Aggressive Self-Love– Myra Ferell-Womochil  124 Contemporary Issue: Gendered Injustice in Campus Sexual Assault  125 Victims’ Rights and Difference  128 Questions for Review  130   •   References  131

Part Three Categories of Difference: Class and Race  133 Chapter 9 Social Class, Crime, and Justice—Raymond J. MichalowskI 136 Chapter Objectives  136 What Is Social Class?  137 Why Do We Have Social Classes?  141 Social Class and the Definition of Crime  145 Social Class, Criminology, and Crime  148 Social Class and Victimization  152 Conclusion: Social Class and the Future of Justice  153 Homelessness and the Criminal Justice System: Repaving the Path– Daniel Horn  154 Questions for Review  156   •   References  157

Chapter 10 Whiteness and the Construction of Crime— Rebecca Maniglia  161 Chapter Objectives  161 Origins: History of Whiteness  163 White Privilege: Facing Facts  164

viii  Contents

Excerpt from White Like Me: Reflections on Race from a Privileged Son, by Tim Wise, pp. xiii–xiv  165 Whiteness and Offending  166 Whiteness and Victimization  168 Whiteness and System Professionals  170 Law Enforcement  171 Courts 171 Corrections 172 White Privilege Revisited: A Systemic Perspective  172 Questions for Review  173   •   References  174

Chapter 11 Stolen Lands, Stolen Lives, Revisited: Native Americans and Criminal Justice—Marianne O. Nielsen and Linda Robyn  175 Chapter Objectives  175 Historical Context  176 Native American Offenders  179 Native American Victims of Crime  181 Violence Against Women Act: More Revisions Needed for American Indian and Alaska Native Women– Linda Robyn  182 State-Corporate Crime and Environmental Injustice on Native Lands– Linda Robyn  184 Native American Service Providers  185 Questions for Review  187   •   References  187

Chapter 12 The Continuing Significance of Race: African Americans and the Criminal Justice System— Stephani Williams  190 Chapter Objectives  190 Considering the Consequences of Assumptions  190 The Construction of Difference  191 Re-examining the Consequences of Difference  191 Justice Policy and Practice: Criminalizing African Americans  192 Historical Legal Context  192 Contemporary Context (Post-Civil Rights Era)  193 The “War on Drugs”  194 Policing Practices  195 Policing Practices Related to Offending Rates  196 African Americans as Offenders  197 Understanding African-American Offending  198 Data on African-American Offending  199 Understanding the Importance of Intersectionality as it Relates to the Punishment Strategies Applied to Young, African American Girl– Stephani Williams  201 African-American Victimization  202 Violent Victimization  202 Hate Crime Victimization  202 Innovation and Cooperation: Bridging the Police–Community Divide  203 Conclusion  205   •   Questions for Review  206   •   References  206

Contents  ix



Chapter 13 Aliens Within: Asian Americans and U.S. Legal and Criminal Justice System—An Tuan Nguyen 209 Chapter Objectives  209 “Strangers from a Different Shore”: Asian Immigration to the United States  210 Gold Mountain, Transcontinental Railroad, Sugar Plantations, and Agricultural Farms: Early Wave of Asian Migration, 1848 to 1930 210 Immigrants with Human and Social Capital Versus War Refugees: Post1965 Asian Migration  211 “Because of You…” Asians as Victims  212 Institutionalizing Racial Discrimination: Asian Immigrants and U.S. Immigration and Citizenship  212 “The Chinese Must Go!” A History of Asian Immigrants Encountering Violence and Hate Crimes  214 “An Isolated Boy in a World of Strangers”: Asian Americans as Offenders 216 Model Minority Myth– Lynn Jones  217 “The Working Man’s Opportunity to Move Up the Ladder”: Asian Americans as Service Providers  219 Questions for Review  220   •   References  221

Part Four

Categories of Difference: Immigration and Race  223

Chapter 14 Coming to America: Immigration, Crime, and the Criminal Justice System—Michael Costelloe  225 Chapter Objectives  225 Introduction 225 Immigration Patterns and Trends  226 Colonial America (1620–1776)  226 Post-Colonial America (1815–1850)  227 The Late Nineteenth and Early Twentieth Centuries (1850–1920)  228 Post-1920 to Present  228 Political Rhetoric, Media Representations, and Anti-Immigrant Attitudes 230 Crimmigration– Raymond Michalowski  232 Criminal Immigrants  234 Immigrants as Victims  236 Immigrants as Service Providers in the Criminal Justice System  238 Questions for Review  238   •   References  239

Chapter 15 Unwelcome Citizens: Latinos and the Criminal Justice System—Alexander Alvarez  241 Chapter Objectives  241 Latino Demographics  243 History 244 Race, Space, and Belonging: The Battle for Ethnic Studies in Arizona– Grace Gamez  246 Perpetrators 248

x  Contents

Victims 251 Practitioners 251 Questions for Review  252   •   References  253

Chapter 16 Undocumented Immigration as Moral Panic: Casting Difference as Threat—Michael Costelloe 256 Chapter Objectives  256 Introduction 256 Moral Panic  258 Moral Panics as Ideology  260 Perceived Immigrant Threats and Justice Policy– Lynn Jones  261 A Discourse of Threat  262 Immigration Policy  265 Questions for Review  268   •   References  269

Part Five

Categories of Difference: Forgotten Difference  271

Chapter 17 Youth, Crime, and Justice: Challenges and Contradictions—Rebecca Maniglia  273 Chapter Objectives  273 History of the Juvenile Justice Movement  273 Juveniles as Offenders  276 A Case for an Intersectional Approach to Criminal Justice: Gender-Specific Programming in Juvenile Justice– Lisa Tichavsky  278 Juveniles as Victims  279 Special Issues in Juvenile Justice  280 Mental Health Issues  280 Zero Tolerance Policies, Policing in Schools, and the School-to-Prison Pipeline 281 Sexual Abuse-to-Prison Pipeline: New Issues of Gender  282 Waiver to Adult Court and Mandatory Sentencing  283 Juveniles as Service Providers  284 Conclusion  285   •   Questions for Review  286   •   References  286

Chapter 18 Many Faces of Aging: Victimization, Crime, and the Incarcerated Elderly—Carole Mandino and Sherry Bell  288 Chapter Objectives  288 Who Are the Elderly?  288 Crimes Committed Against the Elderly  289 Elder Abuse/Mistreatment  290 Physical Abuse  290 Psychological or Emotional Abuse  291 Sexual Abuse  291 Neglect 291 Financial Abuse  292 Crimes Committed By the Elderly/Elderly Offending  292 The Impact of Aging and Infirm Inmates on the U.S. Prison System  294 Summary  297   •   Questions for Review  298   •   References  298

Contents  xi



Chapter 19 Imprisoning Disability: Difference, Punishment, and the Criminal Justice System—Katherine Mahosky, Meghan G. McDowell, and Karen Applequist 300 Chapter Objectives  300 Introduction 300 Defining Disability  301 Disability, Labels, and Stigmatization  301 Persons with Disability and the Criminal Justice System  303 Persons with Disabilities and Interpersonal Violence  303 Criminalizing Disability: Persons with Disability and Structural Violence 304 Homicides Against People with Disabilities– Katherine Mahosky  307 Individuals with Disabilities As Employees in the Criminal Justice System 307 Future Directions for Disability Justice  308 Questions for Review  309   •   References  309

Chapter 20 Religion, Politics, and Criminal Justice—Mohamed Mosaad Abdelaziz Mohamed  311 Chapter Objectives  311 Introduction 311 Historical Background  311 Religious Freedom  312 Religious Groups  313 Native Americans  314 Anti-Semitism 316 Islamophobia 316 Religiously Motivated Violence  317 Antiabortion Movement  317 Religiously Motivated Bias Against Individuals Who Are Lesbian, Gay, Bisexual, Transgender, or Queer (LGBTQ)  318 Religious White Supremacy  319 Radical Muslims’ Terrorism  320 Religion Among the Incarcerated  320 Conclusion 321 Questions for Review  321   •   References  322

Part Six Reframing Difference  323 Reference 323

Chapter 21 Reconstructing Difference for Criminal Justice and Social Justice—Lynn Jones and Sarah Prior 324 References 327 Contributors 329 Co-editors 329 Contributors 329 Credits  333 Index  337

Foreword “Discovery consists of looking at the same thing as everyone else does and thinking something different.” Albert Szent-Györgyi

This book is an invitation to think differently about justice. Readers will be guided in deep exploration of justice—its meaning and administration—through consideration of difference. The third edition of Investigating Difference is produced by faculty primarily housed in the College of Social and Behavioral Sciences at Northern Arizona University with leadership from scholars in the Department of Criminology and Criminal Justice. Investigating Difference offers readers a distinctive collection of essays that weave together insights from social sciences in an interdisciplinary study of intersectionality of socially constructed difference and systems of justice. Readers will develop a rich understanding of the meaning of difference, especially its significance in relation to notions and administration of justice. By examining how difference is constructed, manifested, and perpetuated through systems of justice, readers will gain insights about how intersecting dimensions of difference shape norms and policies that define criminality, dynamics of social control, experiences of victimization, and the operation of systems of justice. Investigating Difference offers a distinctive framework for understanding tensions, paradoxes, and problems inherent in efforts to achieve justice in societies around the world. It reveals how inequality, globalization, culture, international/intercultural relations, politics, religion, social movements, and changes affect conceptions and experiences of justice, laws, and systems of adjudication and sanction. In this place and time, we tend to think about justice in terms of individual conduct and outcomes. At the same time, we are likely to conceive of difference as matter of individual variations. The essays in this book coalesce around the insight that individual attributes are meaningless outside a context that construes their meaning, designates associated traits and proclivities, and ascribes on their basis position in a structure of relations and power. The radical implications of the perspectives of construction of difference and intersectionality for the practice of justice are considered by authors who bring focus to varied dimensions of social stratification. Investigating Difference takes readers on a journey of inquiry to discovery. Readers will be provoked to bring a new perspective to familiar ideas, practices, and patterns in the administration of justice. I congratulate the editors and authors for crafting this powerful volume and bringing to students of justice a new edition that elaborates on the core themes of prior editions with attention to new and emerging issues. Royalties from sales of this book are directed exclusively to scholarships and other support for students at Northern Arizona University. I thank the authors for investing in our students—those who will shape the future. Karen Pugliesi, Ph.D. Dean, College of Social and Behavioral Sciences Northern Arizona University April 2016

xii

Preface As this book was going to press, Donald Trump was elected President of the United States, even as Hillary Clinton won the popular vote. This was reminiscent of the 2000 presidential election in which Al Gore lost to George W. Bush, even though Gore won the popular vote. The social and political dynamics of difference played an important role in this election as they do in all elections. Social scientists are quick to point out the gender gap in voting, or how different racial and ethnic groups align with particular candidates. Intersections of social class, education, and age with gender and race/ ethnicity also matter significantly as we attempt to understand voting patterns. In part, the outcome of this election is surprising as many look back to the campaign itself. The campaign period emphasized difference with a female candidate in Clinton and the negative rhetoric of Trump. Several chapters in this book highlight Trump’s negative characterization of difference regarding immigrants, members of the LGBTQ community, women, people with a disability, and members of racial minority communities. These comments exacerbated an already divided nation around issues of identity. In the coming weeks, months, and years, difference will continue to hold center stage in social interactions, political decisions, and our laws and policies. It is up to us as students, as scholars, as justice workers and professionals to continue to recognize difference as a resource rather than a source of division or hatred.

New to This Edition: •  Reorganization of the chapters and book sections to move beyond a prioritization of race and instead to emphasize the multitude of social identity categories that matter in the justice system •  New content including chapters on intersectionality, specialty courts, and whiteness, as well as newly authored and conceptualized chapters on gender, sexual orientation and gender identity, victimization, African Americans, Asian Americans, immigration, disability, and religion •  Priority given to the theme of intersectionality and overlapping identities in the context of criminal justice and social justice •  Additional discussion of globalization and the impact on victims, offenders and practitioners in the justice system •  Special topics within chapters in the form of short text boxes, including case studies and a few personal experiences written by practitioners doing justice work in the community •  Each chapter begins with learning objectives and ends with discussion questions

xiii

INSTRUCTOR SUPPLEMENTS Instructor’s Manual with Test Bank. Includes content outlines for classroom ­discussion and teaching suggestions from the text. This also contains a Word document version of the test bank. PowerPoint Presentations. Our presentations are clear and straightforward. Photos, illustrations, charts, and tables from the book are included in the presentations when applicable. To access supplementary materials online, instructors need to request an instructor access code. Go to www.pearsonhighered.com/irc, where you can register for an instructor access code. Within 48 hours after registering, you will receive a confirming email, including an instructor access code. Once you have received your code, go to the site and log on for full instructions on downloading the materials you wish to use.

ALTERNATE VERSIONS eBooks. This text is also available in multiple eBook formats. These are an exciting new choice for students looking to save money. As an alternative to purchasing the printed textbook, students can purchase an electronic version of the same content. With an eTextbook, students can search the text, make notes online, print out reading assignments that incorporate lecture notes, and bookmark important passages for later review. For more information, visit your favorite online eBook reseller or visit www. mypearsonstore.com.

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Acknowledgments In the time since the previous two editions of this book, our department has changed somewhat in terms of personnel, and so the process of creating a third edition shifted. Rather than creating a collectively edited volume, we instead grounded the third edition in information gathered about “what works” regarding the text and its content with discussions among the faculty teaching our Investigating Difference course, as well as a publishers’ survey of faculty use of the text. We acknowledge the hard work of the faculty involved in the original edition, including Marianne Nielsen and Barbara Perry who led that first editorial effort. In her role as Chair of the Department of Criminology and Criminal Justice, Marianne Nielsen facilitated the work of the current editorial team in launching the third edition; our current Chair, Phoebe Morgan, continued to facilitate department support of this project. We also thank the Dean of the College of Social and Behavioral Sciences for her interest in the new edition, as well as for her involvement by writing our foreword. With the first edition, the emphasis on difference and criminal justice was a fairly novel idea for a text and for criminal justice curriculum. In our own department, what was a single class on difference has evolved into a broader curricular emphasis such that issues of social construction of difference, inequality, criminal justice, and social justice cut across most of our courses. As such, we were able to draw on many of our faculty to author chapters and textboxes (which are a new feature of the third edition) in ways that reflect their own research and teaching on issues of difference. Some chapters in this third edition reflect our new department, and we are excited to have new authors in the book: Christy Arazan (specialty courts), Stephani Williams (race), Brooke de Heer (victims), and Sarah Prior (multiple chapters and co-editor). We also appreciate the additional contributions by authors in the second edition who agreed to write new chapters: Rebecca Maniglia (whiteness), Nancy Wonders (gender), Lynn Jones (multiple chapters and co-editor), and Mike Costelloe (immigration). We are grateful for the willingness of individuals outside our department who participated by writing in their areas of expertise, as well as followed our requests to incorporate more justice themes or topics. In particular, we acknowledge these contributions by our Northern Arizona University colleagues and those outside the university: An Tuan Nguyen (Ethnic Studies, chapter on Asian Americans); Mohamed Mohamed (Sociology, chapter on religion); Carole Mandino (Civic Service Institute, chapter on the elderly) and her co-author, Sherry Bell (Arizona attorney); Katherine Mahosky and Karen Applequist (Institute for Human Development, chapter on individuals with ­disability) and their co-author, Meghan McDowell (Winston Salem State University). We also thank our numerous textbox authors, including our department colleagues and others outside the department and university. Look for these in each chapter—these really improve the new edition! We thank the NAU Interns-2-Scholars program, which funded student support for our project. Dominic Garduno, an undergraduate Criminology and Criminal Justice major, helped gather data for authors. We also thank two graduate students, Madeline Stenger and Jenna Fejervary, for their research assistance and editorial support in response to our many requests as editors. We would like to thank Nicole Jamila Hendricks (Holyoke Community College) who reviewed the previous edition and ­provided helpful comments. We also thank Gary Bauer, Jennifer Sargunar and Purnima Narayanan (and the many others behind the scenes) at Pearson for their help with the editorial and production process, and their sustained interest and enthusiastic encouragement for a revised edition of this book. xv

xvi  Acknowledgments

We are pleased to remind you that we continue to deposit all royalties from this book into our Investigating Difference Scholarship Fund. Undergraduate and graduate students receive support for travel to present their research at conferences or to otherwise support their scholarly activities. Cheers to our next generation of researchers! Sarah Prior and Lynn Jones May 2016

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▪ ▪ ▪ ▪ ▪

Introduction Investigating Difference Sarah Prior and Lynn Jones

The United States remains one of the most diverse countries in the world. As we discussed in the first two editions of Investigating Difference, difference matters, particularly in the United States and in the globalized world, because of the increased contact and interaction with people we see as “others.” Difference matters, period. In the ever-globalizing world with increased trade and communication, socially constructed ideas about difference matter. As we discussed in the second edition of this book, understanding difference is critical for society as a whole, but particularly crucial for those involved in the criminal justice system. Seeing difference and diversity as a resource, rather than a problem or as something to fear or hate, allows us to strive for equality, equity, and justice. Though we know that ideas about gender, race, sexuality, ability, and class, among others, are “real” in the sense that they matter and have significant social and institutional consequences, we also know that the meaning behind these identity categories is socially constructed and that it changes over time. There is no biological race. Instead, there are the socially constructed meanings that we have applied to race, thus prioritizing whiteness in the United States over other racial groups. Skin pigmentation, phenotype, ethnic origin, and similar characteristics have all been used to justify ideas about who should and who should not have power in the United States. Socially constructed ideas about gender roles and sex categories perpetuate a patriarchal system that prioritizes hegemonic masculinity and heteronormativity over femininity and sexual minorities. This means that society, not biological fact, has created the notion that men are strong and women are weak. As we wrote the third edition, significant events took place in the United States that reignited discussions of how difference matters in relation to the criminal justice system. Many of these events will be discussed in further detail in later chapters: the shooting of Michael Brown in Ferguson, Missouri, and the killing of Eric Garner in New York; the riots that took place in Baltimore in response to the death of Freddie Gray, and the growth of the Black Lives Matter movement; and Trayvon Martin’s death and George Zimmerman’s ­acquittal—all further charged the national dialogue about race. We are in the middle of a very contentious political election. The media coverage and national conversation about Republican candidate Donald Trump and his proposals to ban Muslims from the United States and to build a wall between the United States and Mexico have further sparked contention about racialized politics, immigration, and the distinction between free speech and hate speech. We have felt the consequences of the implementation of the Affordable Care Act, both positive and negative, and the ways health care has continued to be an issue of justice and equity (or lack thereof) in the United States. The Supreme Court struck down the Defense of Marriage Act (DOMA) and ruled in favor of legalizing marriage equality (Obergefell v. Hodges). Transgender advocates grew more vocal in their quest for equality, which was further emphasized in the public transition of Bruce Jenner, a U.S. Olympic gold medal athlete, to Caitlyn Jenner. These are just a few of the many widely publicized issues that took place since the last edition of this book. It is a particularly ripe moment to discuss issues of difference. 1

2    Chapter 1  •  Introduction

Third Edition Roadmap The previous editions of Investigating Difference have helped students and faculty acknowledge and understand that difference is something to be seen as a resource and to be celebrated. There are those who continue to view difference as a negative, or as something to be feared or hated. This fear often results in violence. In addition to violence, these views of difference also create bias or unequal justice responses. It is because of this we continue to think about how difference matters in the justice system. As a department of criminology and criminal justice, we continue to promote a broader curricular emphasis on issues of the social construction of difference, inequality, criminal justice, and social justice, and our faculty continue to engage in these broader issues in their teaching and scholarship. As such, the third edition of this text reflects changes to the department and an evolution of how our single class, CCJ 345W: Investigating Difference, has transformed into a broader departmental standpoint on issues of difference, diversity, and justice. There are changes in the third edition that are both structural and c­ ontent-oriented. In this edition, readers will notice new textboxes in each chapter that are used to further emphasize ideas presented throughout the text. Some of these textboxes present case studies, while others are anecdotes or personal stories from professionals in the field. Authors for these textboxes come from a broad range of disciplinary backgrounds, including faculty from our department, colleagues with expertise in certain areas from other departments within the College of Social and Behavioral Sciences (SBS) and other colleges at Northern Arizona University, community partners, and other justice professionals. In addition to the textboxes within each chapter, readers will also notice that each chapter begins with chapter objectives and ends with chapter discussion questions. These objectives and questions are meant to facilitate learning for students and provide teachers with additional tools to utilize concepts within the book. We hope that students and teachers find these additions helpful as they traverse often-complicated discussions about difference. Additionally, the book has been reorganized and sections have been restructured. In each new part, there are section introductions that provide readers with an overview of the important concepts and ideas presented in that section, as well as more thematic linking to the book as a whole. As we thought about how to investigate difference in our own lives, in our teaching, and in our commitment to the community and to our students, we recognized that our previous editions of this text seemed to prioritize certain kinds of difference over others. This is true in our everyday lives. Race, in particular, is a difference category that is prioritized in the United States. We do not mean prioritized in that race is privileged, but rather that it is the difference category most often talked about. We fell into the same problem. Our previous edition spent significant time discussing issues of race and neglected other difference categories. We wanted to spread out the discussion of difference in this new text. As you will see, we still spend significant time discussing racial categories; however, we have reframed several other chapters to more thoroughly address other issues of difference. Some chapters in this text have been updated, while others have been completely rewritten. In addition to the updating and re-envisioning of some chapters, we also wanted to prioritize and more clearly discuss the importance of intersectionality. In the second edition, Nancy Wonders wrote that “the organization of this book uses specific historic group identities as a heuristic device for exploring differences. However, to the extent that it is possible, each chapter will touch on some of the ways that differences overlap to affect justice experiences and outcomes as a way to remind readers that lived experiences are always a product of unique intersections between individual biographies and the larger social world” (2009, p. 20). While some



Chapter 1  •  Introduction    3

chapters throughout the text did a strong job of discussing how experiences are affected by overlapping identities, many did not do so thoroughly. Some identities are more likely to have a positive or negative impact on experiences with the justice system, yet some compounded identities either further advantage or further disadvantage individuals. In this edition, we wanted to emphasize that identities and their social meanings matter for how people experience the criminal justice system in the United States in both positive and negative ways. Chapter Overview

Based on this, we have reorganized the chapters in this current edition. We begin with a more theoretical focus on issues that pertain to investigating difference in the criminal justice system in Part One: Framing Difference, such as social construction, ­racism, sexism, intersectionality, microaggressions, and privilege, among many others. The next two chapters (Wonders, Chapter 2, and Prior and Jones, Chapter 3) define and discuss important concepts that will be threaded throughout the entire text. Wonders’ chapter (Chapter 2) is an updated version of the chapter in the second edition, while the chapter by Prior and Jones (Chapter 3) is a newly written chapter highlighting concepts that are linchpins throughout the text. We then move to an updated version of Nielsen and Maniglia’s chapter on cultural competency and communication (Chapter 4) and to finish out Part One is a new chapter on specialty courts in the United States (Arazan, Chapter 5). In this chapter, Arazan highlights how the use of specialty courts (like drug courts, veterans courts, and family courts) can further advance equity in our justice system. These types of courts move beyond a sole focus on incarceration and instead emphasize the important context of offending and the value of rehabilitation and restoration. With Part Two: Categories of Difference: Gender and Sexuality, we decided to discuss issues of gender and sexuality earlier in this version of the text. Part of this was due to the fact that our survey of instructors teaching the course, both on our campus and on campuses around the country, highlighted that these issues were eclipsed by the many chapters devoted to race and thus presenting them earlier will help shed additional light. This is particularly timely given the recent legal battles regarding everything from marriage equality to public bathrooms, as well as political contests in which female candidates sometimes experience sexism. All three chapters in this section are newly written chapters that address issues discussed in previous editions, but in new ways and by new authors. Chapter 6 is a re-envisioning of the discussions on gender by Wonders. Too frequently when we discuss gender, it is code for “women.” The chapter in the previous edition was limited in this way. Though the chapter provided excellent information about women in the criminal justice field as victims, offenders, and professionals, it neglected to discuss how men’s experiences with the justice system differ. The next chapter (Jones and Prior, Chapter 7) is a new look at issues faced by people in the LGBTQ community as well as broader sexuality and gender identity issues. This chapter builds on Wonders’ discussion of sex and gender and emphasizes that while sex and gender are often conflated with sexuality, each are related but distinct. To round out this section, we have a new chapter on victimization (de Heer and Jones, Chapter 8) that is theoretically grounded in victimology and utilizes campus sexual violence as a case study to highlight intersectional issues in victimization. This chapter further elaborates on the overall section themes around gender, and the authors also illustrate common misconceptions about victims and victimhood that are detrimental to victims of crime who do not fit within the “good victim” framework. Part Three: Categories of Difference: Class and Race focuses primarily on race and class issues in the United States. Michalowski (Chapter 9) revisits his previous chapter on social class and provides a broad and intersectional discussion of class in America.

4    Chapter 1  •  Introduction

This section then moves to discuss issues of race in the United States, including a newly written chapter on whiteness (Maniglia, Chapter 10), an updated and revised chapter on Native Americans (Nielsen and Robyn, Chapter 11), and two newly authored chapters on African Americans (Williams, Chapter 12) and Asian Americans (Nguyen, Chapter 13). Michalowski’s and Nielsen and Robyn’s chapters (Chapters 9 and 11, respectively) are both revisions of chapters that appeared in the second edition of this text. The chapter on whiteness is a concept that was not addressed in the previous edition. The other chapters in this section are topics that were discussed in the previous edition, but new authors have revitalized and re-envisioned them into what you see here (Chapters 12 and 13). We live in northern Arizona, and our state is a ripe place for discussions on issues of immigration and justice. While ultimately this is a continuation of identity categories based on race/ethnicity, we have decided to combine these chapters into their own section, Part Four: Categories of Difference: Immigration and Race, given the primacy of immigration panic that happens around us. First, Costelloe (Chapter 14) ­re-envisions the chapter from the previous edition on issues of immigration and violence. He provides a historical overview of immigration and immigrant mobility in the United States. Alvarez (Chapter 15) revises and updates his previous chapter on Latinos in the United States and highlights important regional issues such as Arizona Senate Bill 1070 (SB 1070). Lastly, Costelloe (Chapter 16) concludes this section with an updated discussion of how immigration (particularly undocumented immigration) serves as a moral panic in the United States and casts immigrants (documented or not) as threats. Our final content section, Part Five: Categories of Difference: Forgotten Difference, investigates identity categories that are often neglected in the typical “race, class, gender” discussions. We start this section with two chapters focused on age as a category of difference. Maniglia (Chapter 17) updates her discussion on juveniles/youth in the justice system, and Mandino and Bell (Chapter 18) revise and update Mandino’s previous discussion of aging and the elderly in the justice system. Chapter 19 is a newly written chapter by Mahosky, McDowell, and Applequist that looks at disability in terms of difference. Lastly, Mohamed (Chapter 20) wrote a new chapter on religion and discusses the historical and contemporary significance religion plays in interactions with the ­justice system. The concluding section of the book, Part Six: Reframing Difference, briefly wraps up the text and reminds us that difference matters, and that meanings of difference can be reconstructed for social justice and criminal justice.

Reference Wonders, N. (2009). Conceptualizing difference. In The Criminology and Criminal Justice Collective of Northern Arizona University, Investigating difference: Human and

cultural relations in criminal justice (2nd ed., pp. 10–22). Upper Saddle River, NJ: Prentice Hall.

PART ONE ▪ ▪ ▪ ▪ ▪

Framing Difference

This section of the book provides readers with an overview of how difference matters in the criminal justice system. As was discussed briefly above, some chapters in this section are more theoretical in nature and focus on important concepts that are used throughout the remainder of the text. These chapters are really the foundation of the book. Rather than focusing on specific identity categories (i.e., race, gender, ability, etc.), these c­ hapters look at the structural and institutional components of difference and examine how difference is constructed, criminalized, celebrated, and contested within the criminal ­justice system.

Some Notes on Terminology Throughout these first few chapters, readers will be provided with a number of i­mportant concepts that will be further elaborated on throughout the rest of this book. Some of these terms appeared in previous editions of this text, others are new to this edition. Many of these concepts are hotly debated and are often sources of significant contestation. Chapters 2 and 3 that follow are best discussed together not only because they are thematically related, but also because Chapter 3 builds on and further defines concepts discussed by Wonders in Chapter 2. In her update to the chapter “Conceptualizing Difference,” Wonders provides additional clarification to her chapter in previous editions. She discusses the power of ordinary people to construct difference differently through politics, social movements, daily life, and, importantly, in their work as justice professionals. She has provided additional context and elaboration on some of the contemporary global justice challenges that are linked to difference and provides additional attention to strategies of social change. Her updated chapter also provides important new concepts such as cultural capital in her discussion of social class and social stratification in her discussion of structured social inequality. In her discussion on the socially constructed and blurred nature of gender, she provides additional discussion of concepts like gender identity and gender expression. Additionally, Wonders introduces the concept of microaggressions, which is discussed throughout the text in order to highlight the destructive impact of these kinds of devaluations. Overall, this chapter has additional references to historical circumstances, and ­provides broad discussion on issues such as the micropolitics of everyday life, color-blind and ­gender-neutral ideologies, additional challenges facing a globalized world, and a discussion of how human rights can be an important framing device. Building on Wonders’ incredibly strong introduction, Prior and Jones’ newly added chapter provides readers with additional theoretical discussion on some of the important concepts that are emphasized throughout the book. First, Prior and Jones provide a much more thorough discussion of the theoretical concept intersectionality. They build on Wonders’ brief discussion and elaborate on the historical nature of the concept and how it has been used. Kimberle Crenshaw (1989) originally coined intersectionality when she attempted to discuss the experiences of women of color, specifically black women, in the legal sphere. Similar to Wonders, Prior and Jones expand on the point that understanding 5

6    Part One  •  Framing Difference

the experience of blacks and then analyzing the experience of women is by no means the same as understanding the experience of black women. The fact that multiple ­identity categories can be compounded to further disadvantage and oppress certain groups of people further emphasizes the need to understand difference from an intersectional framework. While intersectionality can be an important framing tool, some scholars have argued that it has been applied in an inconsistent and messy manner and instead urge us to utilize other frameworks such as Ken’s (2007) interlocking oppressions framework. In their discussion of interlocking oppressions, Prior and Jones highlight some of Ken’s key arguments such as the use of social locations as a tool to think theoretically about both social and physical locations because individuals are often relegated to specific social locations that come with a variety of advantages and disadvantages. In using the term interlocking, Ken is pushing scholars and activists to recognize that social identity categories do not merely intersect one another. They are “completely bound up with one another, incapable of being separated” (Ken, 2007, p. 13). Prior and Jones also highlight the fact that the previous discussion of race, class, and gender tended to ignore the experiences of “unmarked” normative groups such as white people, members of the middle class, and able-bodied individuals. Building on Wonders’ discussion of microaggression, Prior and Jones provide a definition and numerous examples of how microaggressions have become part of the national dialogue. As will be discussed in more detail throughout the text, in contrast to the kinds of blatant overt discrimination that the United States saw during the Jim Crow era, microaggressions emphasize the subtler and covert kinds of discrimination commonly found in everyday language and interactions. These kinds of microaggressive behaviors often come from well-intentioned people, who do not know, understand, or realize how harmful their behavior is. It is what Harvard Professor of Psychiatry Alvin Poussaint calls “death by a thousand nicks.” Prior and Jones additionally add a ­discussion of racialization in order to demonstrate the complex process of socially constructing and ascribing characteristics and meanings to biological racial categories. Lastly, Prior and Jones discuss the importance of understanding privilege in order to understand difference. In the previous edition of this text, Gould (2009) described the importance of understanding privilege as being earned or unearned. Prior and Jones further this discussion of privilege and describe how most privilege and disadvantage comes from unearned identities. For example, race, gender, and ability are identities that are unearned, so any advantage/privilege or disadvantage/oppression that comes with them is also unearned. Prior and Jones close this discussion by providing the example of how difficult it is for some groups to understand privilege when they do not feel like they are ­experiencing it. In the second edition of this text, Nielsen and Maniglia provided important discussion of cultural competency and the significance of communication for justice professionals. Throughout their revised chapter, Nielsen and Maniglia (Chapter 4) provide several examples of communication competence and the rewards of competent communication. While justice professionals have been receiving training on intercultural communication since the 1960s, recently these trainings have been reexamined to ensure that justice professionals, especially police officers, get the training they need to deal with cultural changes in the communities they serve. As the authors highlight, diversity significantly influences communication. They specifically examine three such diversity categories, gender, culture, and power/status, in order to demonstrate the importance of cross-cultural communication and competency. Nielsen and Maniglia further elaborate that since culture is largely non-spoken/nonverbal in that it is transmitted through observation and imitation rather than through explicit instruction, becoming culturally competent is also about navigating nonverbal communication such as posture, dress, touching, facial expressions and eye behavior, or similar. The authors conclude their discussion of cultural competency and communication by



Part One  •  Framing Difference    7

discussing the challenges to communication. They highlight issues of stereotyping, ethnocentrism, and naming and emphasize six critical skills for culturally competent communication, including being mindful, managing ambiguity, managing anxiety, practicing empathy, adapting, and making accurate predictions and explanations. These skills are crucial for all individuals interacting in our very diverse world, but are particularly crucial for justice professions in the pursuit of sustained justice. The concluding chapter in Part One provides readers with a new chapter that investigates how difference matters in specialty courts. As Arazan (Chapter 5) describes, the United States has a history of responding to social problems with criminalization and incarceration, particularly in ways that create inequality. This will be further emphasized in many chapters throughout the text. This incarceration response, what many call the prison-industrial complex because of its apparent tie to economic interests, has disproportionately and significantly affected poor communities of color. Policies implemented in response to the War on Drugs have been statistically more harmful to non-white communities, which means that many of our jails and prisons have disproportionate minority populations in their facilities. The failure of mandatory minimums and other policies in achieving their goals has fueled incarceration and this has led to grassroots social movements seeking a justice system that meets the unique needs of the offenders, victims, broader community, and the courtroom workgroup. In this chapter, Arazan provides a historical overview of how specialty courts were created and gives the social and political context to how they currently operate. She discusses how specialty courts function differently from traditional criminal courts, such as by replacing the traditional adversarial court process with a process that is more collaborative, often treatment-oriented, and is geared to long-term success. She examines many examples of specialty courts, including the most prevalent court, drug courts, but also mental health courts, veterans treatment courts, tribal health to wellness courts, and domestic violence courts. Arazan concludes her discussion of specialty courts with an overview of the benefits as well as unintended consequences and the future of these courts. As Arazan points out, existing research on specialty courts shows the potential of this alternative, which has saved taxpayer dollars, reduced recidivism, and can more adequately address the unique needs of some offenders than can traditional criminal courts. Taken together, the chapters in Part One are meant to provide readers with a very broad understanding of how difference matters in terms of academic theories, overall societal interaction, and also in terms of the criminal justice system. These chapters provide the framework for the later discussions of specific categories of difference. It is our hope that by the end of this book readers are better equipped with a historical understanding of difference, with new terminology, and with a contextualized knowledge of how issues of difference and privilege intersect and inform how we interpret and understand each other.

References Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 1989(1), article 8. Gould, L. (2009). Privilege and the construction of crime. In The Criminology and Criminal Justice

Collective of Northern Arizona University (Eds.), Investigating difference: Human and cultural relations in criminal justice (2nd ed., pp. 23–38). Upper Saddle River, NJ: Prentice Hall. Ken, I. (2007). Race–class–gender theory: An image(ry) problem. Gender Issues, 24(2), 1–20.

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Conceptualizing Difference Nancy A. Wonders

Chapter Objectives • Explore how and why difference is socially constructed. • Analyze the relationship between power, privilege, and difference. • Explain how soft and hard social control, categorization, prejudice, stereotyping, discrimination, and law help to create and maintain difference. • Explore how the concept of intersectionality informs consideration of difference. • Discuss the consequences of the social construction of difference for justice professionals. • Consider the challenges and opportunities globalization poses for investigating difference and attaining greater justice for all. Despite the critical role that difference plays within the criminal justice system, it is rare for either practitioners or scholars to spend time investigating difference. It is often taken for granted that the differences between people are natural and obvious and, therefore, uncontroversial. Yet, little about difference is actually either natural or obvious. And difference is far from uncontroversial. In this chapter, I outline some of the important insights about difference that have emerged from the contemporary literature on difference and identity. My primary objectives are to explore “difference” as a topic of study, introduce some of the key concepts and common themes regarding difference that are contained in the chapters that follow, and examine links between difference and contemporary justice challenges. The subsections that follow offer answers to these questions: What is difference, and where does it come from? Why do some differences matter while others do not? What is the relationship between law and difference? Why study difference within the field of criminology and criminal justice?

Difference is Socially Constructed A great many people think that the most important differences between individuals are fundamentally biological. Race, ethnicity, sexual orientation, gender, age, and even social class are frequently viewed as inherited traits—what sociologists call ascribed characteristics. In this view, people are designated “female” or “male” because they are born with particular genitalia. People are “black” because they were born with dark skin; “white” because their skin is lighter in color. What is most interesting about biology, however, is not how different we all are from each other, but rather how remarkably similar most people are in both design and function. Indeed, the biological differences that do exist between people rarely matter in themselves; instead, people make differences matter through the process of social interaction, which is to say that difference is socially constructed. It is the meaning attached to ­differences—including biological differences—that makes some kinds of difference matter 8

Chapter 2  •  Conceptualizing Difference    9



more than others. From this perspective, constructing difference is a social ­process that can only be understood historically, contextually, and culturally—we are all “doing difference” all the time (Fenstermaker & West, 2002). To reiterate, the social construction of difference is the phrase used to describe the social and cultural m ­ eanings attached to human variation. Of course there are many biological differences between people. Some people have larger noses, smaller feet, larger breasts, or lighter skin. However, biological ­differences do not come with instructions telling us how to think about or respond to them. In fact, if biology were destiny, we probably would not spend so much time and money dressing our girls in pink and our boys in blue because boys would be ­“naturally” masculine and girls “naturally” feminine, regardless of the color of their clothes or other markers used to signify their sex to the rest of the world. Nor would Jews have been made to wear yellow stars during World War II so that they could be identified easily. Nor would children born with ambiguous genitalia have been surgically altered to become either “female” or “male.” Nor would we need to eat certain kinds of traditional foods or engage in particular cultural celebrations to reinforce our ethnic identities. But the reality is that we put enormous energy into constructing and enforcing gender, ­ethnicity, sexuality, race, and other differences as a kind of insurance against “nature.” Race, ethnicity, gender, sexuality, social class, and even age reflect the meaning we give to differences rather than natural facts about our biology. To further illustrate this point, let’s examine some of the ways that the historical meanings associated with the c­ ategories of sex and gender, sexuality, race, and ethnicity have changed over time. Today, it is frequently assumed that women are naturally more interested than men in fashion and beauty, and that these interests are associated with femininity and femaleness. It is important to remember, however, that in Victorian England, it was men who wore wigs, high heels, stockings, and frilly blouses. Instead of exhibiting femininity, this set of differences was strongly associated with masculinity and power and the ability to purchase these accessories was closely linked to social class and wealth. Only “real men” wore wigs! Biology is clearly not destiny. For this reason, many scholars find it useful to make a distinction between biological “sex” and “gender”: sex refers to human variations in bodies, hormones, genitalia, and reproductive abilities (which have relatively limited consequence since reproduction directly affects only a small portion of the human life cycle), whereas gender refers to the social characteristics, statuses, and legal identities that have come to be loosely associated with sex (e.g., these typically fall along a range from femininity to masculinity) (Lorber, 2011). Sexual variation exists, but it is the meaning that is made out of that variation through the construction of gender that has the greatest consequence for individual life chances. Importantly, children must be taught how to act in genderappropriate ways. The behaviors associated with each gender, however, have changed over time as society has changed, and are not determined by biological differences. History reveals that: Sex categorization involves no well-defined set of criteria that must be satisfied to identify someone; rather, it involves treating appearances (e.g., deportment, dress, and bearing) as if they were indicative of an underlying state of affairs (e.g., anatomical, hormonal, and chromosomal arrangements). The point worth stressing here is that, while sex category serves as an “indicator” of sex, it does not depend on it. Societal members will “see” a world populated by two and only two sexes, even in public situations that preclude inspection of the physiological “facts.” . . . Gender, we argue, is a situated accomplishment of societal members, the local management of conduct in relation to normative conceptions of appropriate attitudes and activities for particular sex categories. From this perspective, gender is not merely an individual attribute but something that is accomplished in interaction with others. (West & Fenstermaker, 2002, p. 65).

10    Part One  •  Framing Difference

In other words, we are all constantly “doing gender” by acting in ways that signal to others how we ought to be categorized and by reacting to others in ways that define them as “female” or “male” (West & Zimmerman, 1987). We “do” gender every day by dressing, sitting, talking, and acting in ways that create and reinforce gendered ­patterns of behavior. In fact, we are often confused and bothered by individuals who do not act consistently with our cultural expectations of appropriate “female” or “male” behavior, or whose physical features or attire seem inconsistent with their gendered behavior, for example, women who are very tall or men who wear a lot of makeup. Rigid gender expectations often lead to prejudice and discrimination within the justice system and in the larger society, particularly when individuals are viewed as failing to perform gender “appropriately” and consistently with dominant social norms or cultural expectations (Belknap, 2014). Additionally, because there is tremendous societal pressure to conform to cultural expectations to be either “male” or “female,” some people’s gender expression—the way they exhibit their gender to others through behavior and dress—may not match their gender identity—their internal sense of themselves (Howard & Alamilla, 2013). As a consequence of changing social norms about sexuality, “the boundaries between sex and gender are becoming increasingly blurred” (Barberet, 2014, p. 17). By looking at race both historically and cross-culturally, it is easy to see that race is also a social construction. The historical and anthropological record provides clear evidence that race is not a biological difference; there are no genetic markers that clearly differentiate where “white” or “black” begins. Instead, race is a social construction that reflects the process of categorizing and allocating differential social statuses and privileges to people based on real or imagined physical differences, a process that always occurs within the context of social interaction and history (Omi & Winant, 2015; Ore, 2013). The apartheid regime of racial segregation that existed in South Africa for more than forty years offers a particularly striking illustration of the socially constructed character of race. Within South Africa, racial designations included categories: white, colored, black, Chinese, Malay, and Indian, among others. The fact that these designations carried differing rights and privileges led many people to try to change their racial classification in order to improve their social standing. Remarkably, in 1987 alone, almost 800 South Africans successfully changed their racial classification (Uys, 1988). This example illustrates the changing nature of race over time and the fact that racial categorization depends heavily upon who has the power to define and assign racial categories. A person considered black in the United States may not be considered so in South Africa or in Brazil; “indeed, some U.S. blacks may be considered white in Brazil” (Telles, 2006, p. 79). Throughout history, race as a category of meaning has changed to fit changing circumstances. Like gender, the meaning of race is constructed through human interaction. Ethnicity, or socially constructed cultural affiliation, is similar in this regard, as evidenced by the historical process by which immigrants to the United States, particularly non-Hispanic whites, were able to transform themselves from Italian, Irish, or Japanese ethnic groups into “Americans” and more specifically into “White” Americans (Omi & Winant, 2015). The fact that ethnic and racial identities reflect a long process of historical construction was explicitly recognized in the year 2000 when the U.S. Census, our national strategy for counting race and ethnicity, moved beyond the six racial categories listed and allowed individuals to check more than one category of identification, creating a new “multiracial” category. Research has found that individuals who self-identify in one racial group but who are routinely misclassified by others experience adverse psychological consequences (Campbell, 2007). Thus, because



Chapter 2  •  Conceptualizing Difference    11

ethnicity and race have been made to matter in our society, it is important to respect how individuals self-identify. Even social class differences cannot be explained merely by external variation in wealth or income. Social class is also a social construction linked to history and culture, and one’s class identity can only be understood in relationship to others. Social class is evidenced through barometers such as material success and social location in the economic system, but it is also characterized by the presence or absence of particular styles of speech, behaviors, and attitudes. As Langston (2004, p. 141) argues, “class is also culture”: . . . class is how you think, feel, act, look, dress, talk, move, walk; class is what stores you shop at, restaurants you eat in; class is the schools you attend, the education you attain; class is the very jobs you will work at throughout your adult life. We experience class at every level of our lives; class is who our friends are, where we live and work even what kind of car we drive, if we own one, and what kind of health care we receive, if any. Have I left anything out? In other words, class is socially constructed and all encompassing. When we experience classism, it will be because of our lack of money (i.e., choices and power in this society) and because of the way we talk, think, act, move—because of our culture.

Because class is cultural, individuals who are poor may have a difficult time becoming middle class even when they obtain more money since they may not have the cultural capital or social assets associated with their class position. Being middle class means learning how to “act” middle class—to “walk the walk” and “talk the talk.” Growing up poor creates a distinct cultural disadvantage given that the “proper” behavior, dress, and linguistic style in much of the world of work and within the justice system are determined by those from higher social classes. There is a welldocumented history of discrimination against lower-class individuals within the justice system, beginning with the creation of laws specifically designed to control the “dangerous classes” and affecting virtually every stage of the criminal justice system (Reiman & Leighton, 2012; Shelden, 2007). As will be illustrated later in this book, the social cost for class differences can be very high. As these examples illustrate, the construction of difference reflects a historical process of human interaction and negotiation. All differences have a cultural component that carries enormous weight in shaping attitudes and behavior. In this sense, it may matter more who others “think” we are than who we “really” are. This is a particularly important point for justice workers. Police officers may think of themselves as caring citizens trying to help others, but this matters little if citizens “think” police officers are “pigs” and, therefore, act toward them with hostility. A young man wearing baggy pants and a bandanna may think of himself as a hardworking student, loving son, or good friend, while others consider him to be only a gangbanger. Being regarded as “black” or “white,” “gay” or “straight,” or “female or male” carries the weight of the culture behind it. For this reason, it is important to realize that saying that difference is socially constructed is not the same thing as saying that individuals construct their own identities. We all have human agency, which means that we can engage in actions and make choices that exert some influence over how we will be viewed in the world. However, for the most part, the identity choices available to us reflect social stratification or structured social inequality. This is to say that our choices are constrained and structured by our culture, the historical time period into which we are born, previous patterns of inequality, social institutions, and where in the society we are located. Our identities are also shaped by the situated social interactions that occur within the context of everyday life, particularly within important social groups and social institutions; our interactions with others play a key role in shaping and constraining our behavior as well as our imaginations about who we can be. You might think of yourself as without

12    Part One  •  Framing Difference

a race or gender, for example, but try getting everyone else to treat you that way and see how far you get! And if we could simply choose our identity, it is fair to say that we could probably solve poverty overnight! Understanding that difference is socially constructed is a critical first step toward ensuring justice in a democratic society. In democratic societies, citizens must work together through political and social institutions to arrive at common understandings of justice and legitimate strategies for the administration of justice. But our view of justice depends a great deal on our identities and the situated perspective they provide. Building coalitions across differences is easier when we are able to recognize that we all bear some responsibility for the differences between us and for the real consequences those differences have for human lives. It is especially important for those who work in the justice system to understand the role they play in giving differences meaning and making some differences matter.

Difference Assumes a Norm or Standard that Reflects Power and Privilege Because differences are socially constructed through a process of human interaction, power plays an important role in determining how differences will be defined and which differences will be made to matter. Not surprisingly, some people have more power or influence to define differences than do others. In general, history evidences a process whereby those with greater power become the standard of comparison against whom everyone else is measured. It is through this process that some differences come to have greater importance than others. Difference exists where there is a norm or standard against which everyone else is compared. Difference always implies a contrast and frequently the differences that matter most depend upon the construction of a two-part dichotomy. Difference is constructed when a continuum is turned into a dichotomy, such that one part of the dichotomy is represented as better than the other. So we take the continuum of age, create the categories of “adult” and “child,” and privilege adults over children. We take the ­continuum of skin color, invent racial categories based on how closely skin color resembles blackness or whiteness, and then privilege whiteness. Difference is a linguist construction in which the relationship between two halves of the dichotomous construction is ignored, while the binary construction is elevated in importance. . . . (Wonders, 1998, p. 117).

So we can only understand the concept “gay” by its opposition to “straight.” We can only conceptualize “black” because we define it against “white.” Over time, these dichotomies come to take on a life of their own—to seem “natural,” even biologically based. Yet social scientists have provided compelling evidence that virtually all human variations fall along a continuum rather than into two (or more) discrete boxes. People are not “black” or “white” but instead exhibit a huge range of skin colors, making racial designations based on skin color exceedingly arbitrary. People are not just ­“heterosexual” or “homosexual,” since a large number of individuals have same-­gender sexual experiences at some point during their lives without ever considering themselves gay or lesbian. Indeed, “. . . contemporary youths are increasingly adopting alternative labels . . . or rejecting sexual identity labels altogether, in an explicit acknowledgement of these labels’ arbitrary nature . . .” (Diamond, 2003, p. 491). Similarly, biological genitalia and body function provide a relatively weak basis for dichotomizing either sex or gender, since physical characteristics, even on such narrow criteria as breast size, the capacity for menstruation, and the size of one’s external genitalia, vary widely among humans and over the life course. Additionally, the fact



Chapter 2  •  Conceptualizing Difference    13

that “more than twenty distinct intersex conditions have been identified by the medical profession” highlights the limited utility of dichotomous categorizations of sex and gender (Davis, 2013, p. 132). Not only is dividing social reality into dichotomies fundamentally inaccurate, but it can also have very harmful consequences. This is especially true when one half of the dichotomy is valued while the other half is devalued, a tendency that is all too common. Devaluation or attaching a lesser value to some social identities operates to valorize one social group by framing another group as inferior and “the Other.” Devaluation is expressed in a myriad of ways, including through neighborhood segregation, structural barriers to employment, interpersonal violence, hate crime, and through microaggressions or everyday acts of interpersonal discrimination. The destructive impact of this devaluation has been well documented in research. For example, “Blacks and those in lower socioeconomic positions are less satisfied with their personal lives, housing, incomes, jobs, free time and standard of living. They also tend to be less satisfied with the way things are going in the country” (Hurst, 2004, p. 236). “Latino and Asian-American youth who have experienced micro-aggressions have elevated levels of anxiety, anger, and stress, which may increase feelings of depression and sickness” (Huynh, 2012, p. 831). Similarly, research has evidenced that lesbian, gay, transgender, and bisexual (LGTB) youth “report feeling depressed, isolated and even suicidal more often than do their peers” (Patterson, 2013, p. 190). Another example of this devaluation can be found in research on girls, which sadly has found that “even by the end of grade school, girls begin to evaluate themselves more negatively than do boys” (Chesney-Lind & Irwin, 2008, p. 70). This internalization of negative societal messaging also has adverse consequences for justice in the United States. Some scholars, for example, argue that citizen perceptions that justice workers regard women and people of color as second-class citizens may reduce reliance on the police by the very groups most likely to experience certain kinds of personal victimization (Belknap, 2014; Gabbidon & Greene, 2012). Not only does dichotomizing differences into two parts or two distinct groups typically result in one group being devalued, importantly, the other group obtains greater privilege, in part because it comes to be viewed as somehow more “normal.” This phenomenon, known as normative privilege, occurs when the standard for evaluation reflects and maintains the already existing privilege of the more powerful group. As a result of this power dynamic, we have a tendency to focus on only one portion of the dichotomy when discussing difference. The more privileged groups often remain invisible. When we discuss “race,” most people assume we are only talking about ­people of color. When the issue of “gender” is raised, people assume it is a women’s issue. But to the extent that a society divides people into categories, then everyone is subject to the impact of categorization. Some people benefit, some do not, but everyone is affected. In this book, the authors have chosen to devote relatively more time to description and analysis of groups within the United States that have historically been disadvantaged and marginalized within our culture and justice system. However, the chapters that follow also investigate the behavior of those groups who have historically been privileged by justice practices in the United States. We believe that issues of difference do not belong to only one group; they are human issues that affect us all.

Difference Matters Although the meanings attached to differences are socially constructed (rather than natural or biological), once differences are created they have real consequences for human lives and for the justice system. Because difference construction is a historical process, the place and time period into which we are born will play a significant role in

14    Part One  •  Framing Difference

defining which characteristics will matter to the larger society. To be born with dark skin in the United States means something different today than it did during most of the 1800s, when slavery was commonplace. Those born without eyesight earlier in the twentieth century had significantly different life chances than those born without eyesight today. But in every case, once society has decided that a particular characteristic or set of characteristics warrants differential treatment, those viewed as having those characteristics will have a difficult time escaping categorization, prejudice, stereotyping, and discrimination. Categorization is the process by which society decides which individuals fit into the boxes used to define difference. Once categories are created and given significant societal consequence, it becomes extremely important to decide who fits into which category. That is why so many individuals in South Africa had their race changed—­ different racial categories were linked to different privileges and opportunities in South African society under the apartheid regime. It’s also why we work so hard to ensure that “boys will be boys.” Research has evidenced that males experience greater privilege in our society in numerous areas, including in employment, education, and economic opportunity (Lorber, 2011; Ridgeway, 2011). Once society has created categories, enormous effort goes into channeling people into one category or another. Through the process of socialization, children are taught to fit into and identify with particular categories, as well as how to behave consistently with those identities. Key agents of socialization, including parents, the media, schools, peers, and important social institutions, such as religion, all participate in socializing children to internalize the differences that are assigned to them from birth. Socialization is a form of soft social control; this type of social control seeks to ensure that social norms and cultural attitudes about difference will be internalized and passed down from generation to generation. As will be seen shortly, hard social control, which involves the use of force and coercion through such institutions as the law and the justice system, also plays a key role in defining and maintaining differences in our society. Two other processes that help to ensure the continuation of difference are prejudice and discrimination. Prejudice and discrimination are different, though related phenomena. Prejudice is a set of beliefs and attitudes about people based on their group membership. Stereotyping is closely linked to prejudice and helps to reinforce it. Stereotypes are based on the assumption that all individuals who belong to a particular group share the same characteristics. It is important to point out that both stereotypes and prejudices can be “good” or “bad” in intent, but they are much more often bad than good in their consequences. For example, it may be that Asian Americans are stereotyped as being especially good at academics (presumably a “good” trait), but this assumption can be devastating for the Asian-American youth who does not fit the stereotype, even though it is an apparently positive stereotype. While prejudice is a set of attitudes about individuals and the groups to which they belong, discrimination is a behavior whereby individuals are treated adversely because of their group membership. Discrimination serves to privilege some characteristics over others by linking particular characteristics with either positive or negative ­consequences. Prejudice ensures that those on one side of the dichotomies we create—female/male, dark/light, straight/gay—are viewed as “less than” those on the other end. Discrimination is the behavioral component of prejudice. When people discriminate, they act toward others in positive or negative ways based upon real or imagined group membership. It is important to emphasize that discrimination is sometimes directed toward people based on assumptions about group membership that are, in fact, incorrect. An example is provided by the vicious assaults in the United States against some members of the Sikh faith in the wake of the 9/11 terrorist attacks. Although most people who believe in the Sikh faith have close ties to India, the perpetrators in these attacks discriminated against Sikhs because they (incorrectly) believed them to be “Muslims.”



Chapter 2  •  Conceptualizing Difference    15

Although some people argue that people are discriminated against because they are different, it is more plausible to argue that people come to be viewed as “different” because they are discriminated against. Because privilege and opportunity often result in greater power in the society, it is in the interests of those who are privileged by the construction of difference to perpetuate differences so that they, their children, and others like them can continue to receive disproportionate benefit. Said differently, we all want to avoid the negative consequences attached to prejudice and discrimination, at the same time we desire the advantages offered to us by our privileged statuses; thus, there is a built-in incentive to try to maintain categories that privilege some individuals and groups over others. Thus, one way to reduce the power of difference is to eliminate the discriminatory and/or privileging effects attached to a particular difference. Merely having blue eyes rather than brown eyes is a difference that does not “matter” because neither privilege nor negative consequences accrue to those with different eye colors. Other differences might matter less if we could successfully alter the dichotomous nature of the rewards attached to them. In fact, this is the explicit goal of many policy and legal efforts that seek to reduce the privilege that one group has over another. One good example of such an effort is the call for “equal pay for equal work” as a way to reduce the pay differentials—and privilege—enjoyed by men relative to women in the realm of employment. In the chapters that follow, the authors explore the ways that difference matters within the criminal justice system, for offenders, victims, and for justice professionals. The impact of power, privilege, prejudice, stereotyping, and discrimination on the administration of justice is explored for a wide range of social groups. Importantly, strategies for reducing the adverse consequences associated with difference are also discussed.

Law Plays a Critical Role in Creating and Maintaining Difference; It can Also be Used to Ameliorate the Negative Consequences of Difference Historically and contemporarily, law has played a central role in the construction and maintenance of difference. In some cases, it is obvious that law works to categorize people in ways that artificially construct difference. One clear example is age. Everyone is one age or another, but the social meaning attached to age has varied over time and from culture to culture (Stearns, 2010). Less than 100 years ago in the United States, children were expected to take on the responsibilities of adulthood as soon as they were able to do so. Until relatively recently, people of all ages worked on farms or in factories—everyone performed the work of society. This is still true in many cultures, as well as in some impoverished neighborhoods in the United States. Childhood as a separate category does not exist “naturally.” The meaning of childhood must be created, and this is often accomplished through legal mechanisms, such as the creation of laws regarding the age of majority. In the United States, the age of majority has fluctuated over time, in the last few decades ranging between the ages of 18 and 21; those younger than this age were considered to be “children” under the law, with limited rights and responsibilities. The arbitrary nature of this boundary is highlighted by the contradictions it creates, such as the fact that individuals 18 years old cannot drink alcohol but can be tried as an adult in a court of law or drafted into military service. The definition of childhood and the rights and responsibilities attached to that definition also vary cross-culturally. For example, in many states in the United States, a 17-year-old can drive but not drink alcohol, while in many European countries the opposite is true—young people are able to drink well before they gain the privilege of driving. Even more striking is the wide international disparity in laws regarding the age of sexual consent and marriage; in some countries, like Afghanistan, “a girl might be engaged as young as two years old; then at eight or nine years she will

16    Part One  •  Framing Difference

be given to her husband’s family for marriage” (Carrington, 2015, p. 47). We might fairly ask whether the concept of “childhood” has any real meaning in this context. Law has also shaped the meanings of race and ethnicity. Historically, legal definitions often sought to facilitate the social exclusion or social control of particular groups. During the period of slavery, the United States developed a law saying that individuals with even one drop of black blood were to be considered black (Barak, Leighton, & Cotton, 2015). It is important to remember that slavery was a legal system of racial oppression. Similarly, laws that defined who constituted an American Indian rested on “blood quantum” or “degree of Indian blood,” a measure that became useful in reducing the official number of Native Americans. At the turn of the twentieth century, this standard facilitated the federal government’s strategy of forced assimilation for American Indians via land seizure and acceptance of the ideology of private property (versus collectively held property). Land seized was reallocated only to those individuals who could document that they met the blood quantum set by the government—­ typically one-half or more of Indian blood (Garroutte, 2013). Today, federal laws continue to set standards that define who may be considered a member of a particular Native American tribe. The rigid, legal definition of identity may one day define Native Americans out of existence, since intermarriage with other groups will ensure a dilution of the percentage of “Indian-ness” the next generation can claim. As these examples illustrate, law plays a critical role in defining difference. Law also plays an important role in maintaining and enforcing differences and, thus, helps to ensure that differences will continue to “matter.” Historically, legal restrictions on voting rights, marriage rights, and property rights were used to limit the power of women, certain racial and ethnic groups, children, the differently abled, and for individuals with particular sexual preferences. Today, there are many contemporary examples that continue to reveal the way that law maintains power differences. For example, when one man hits another man, this behavior may be prosecuted as assault in every state. However, if a husband hits his wife, in many states this behavior is defined as “domestic violence.” Not only does the phrase “domestic” make the violence sound less serious, but extensive research has also evidenced that the widespread attitude that violence between intimates is less serious than violence between strangers slows police response, reduces the likelihood of arrest, and reduces penalties if the perpetrator is convicted (Belknap, 2014). This differential treatment of violence against women reinforces the differences between women and men and helps to ensure that the category “woman” will be less valued than the category “man.” Similarly, some laws have worked to disproportionately criminalize the behavior of people in particular racial or ethnic groups, for example, when crack cocaine, a drug more commonly used by blacks, was penalized much more heavily than powder cocaine, which was more commonly used by whites. The use of law to target African-American drug use in this way deepened racial divides by heightening public perceptions that blacks were more “criminal” despite the fact that most drug users and dealers are white (Alexander, 2012; Cacho, 2012). Laws that criminalize those who are in the country without proper documentation further illustrate this point. Overstaying a visa or entering the country without a visa used to be viewed as a relatively minor civil offense in the United States; however, more recently, legal changes in many states have criminalized those who do not have proper documentation, particularly those from Mexico and Latin America, increasing their vulnerability to exploitation as well as their reluctance to call upon the police for assistance (McDowell & Wonders, 2010). It is important to point out that law is not just a vehicle for creating and maintaining difference; it can also be used to ameliorate the negative consequences associated with difference in our society. It is evident that law served to restrict the rights of huge segments of the U.S. population when the country was founded. For example, when the Constitution was written, women, people of color, and those who did not own



Chapter 2  •  Conceptualizing Difference    17

property were all precluded from voting in the newly created “democracy” (Parenti, 2010). However, over time the law has also been used to extend rights to groups formerly disenfranchised, typically as a consequence of pressure from ordinary people who organize to affect change through social movements or other forms of collective action. Although some would argue that law is a limited method for creating social change because it may not change deeply held attitudes and beliefs, it can provide important protections to those who experience inequality. As Martin Luther King (as cited in Ayers, 1993, p. 135) said: The law cannot make an employer love an employee, but it can prevent him from refusing to hire me because of the color of my skin. The habits, if not the hearts of people, have been and are being altered by legislative acts, judicial decisions, and executive orders.

Although efforts to use the law as an instrument of social change are often controversial, it is clear that laws and policies continue to have an important impact upon the meanings and consequences attached to difference in our society. For this reason, in the book substantial attention will be devoted to the role of law in promoting social change and ensuring greater justice.

Differences Overlap and Intersect with One Another Identity is a complex construct for most people. Although it is possible to talk generically about “women” or “Hispanics” or “heterosexuals,” most people would deny that their membership in a single group defines who they are as individuals. Nor can we simply add identities together if we want to understand the complex identity of a particular individual. Understanding the experience of “blacks” in the justice system and then analyzing the experience of “women” is not the same thing as understanding the experience of “black women.” Similarly, men are never just “men” or children just “children”; they always occupy many categories simultaneously. People differ from one another in many ways and they belong to many groups at the same time—in other words, all individuals are characterized by intersectionality or the overlap between multiple identity categories. Most of the work that has been done to understand difference within the justice system analyzes only one difference at a time, focusing on race or gender or social class. Only recently has research been conducted that tries to analyze more complex relationships between differences and the way that differences intersect with one another to shape experiences of justice and injustice (Potter, 2015). For example, research by Ritchie (2012, p. 25) on the violence experienced by black women reveals that “institutional arrangements and social forces allow some Black women’s experience of male violence to be framed as evidence of their own individual pathology, their social deviance, and their community disloyalty rather than abuses of patriarchal power by those who have authority over them.” This research is just one example of a new wave of research that explores how differences intersect and interlock with structures of power and privilege to shape the experience of justice. The organization of this book uses specific historic group identities as a heuristic device for exploring differences. However, to the extent that it is possible, each chapter will touch on some of the ways that differences overlap to affect justice experiences and outcomes as a way to remind readers that lived experiences are always a product of unique intersections between individual biographies and the larger social world.

Differences and Their Consequences Can be Changed Perhaps the most hopeful aspect of studying difference is realizing that—since differences are socially constructed by people—they can be changed by people. History provides powerful evidence of our ability to reconstruct difference through cultural,

18    Part One  •  Framing Difference

political, and legal change, as well as through the micropolitics of everyday life in our daily social relationships. Changing our attitudes about difference is important, but individual attitudinal change often has limited impact on the broader society. Even if we believe that race, or sex, or ethnicity are constructed differences that should not lead to unequal treatment, these differences will still have tremendous influence if the rest of the world links arrest decisions, employment decisions, educational opportunities, and so on to membership in certain groups. For this reason, changing behavior often leads to more significant societal change. Indeed, sometimes behavioral change can occur very rapidly, such as in 2015 when the Supreme Court decided the landmark case of Obergefell v. Hodges, which extended the right to same-sex marriage across the nation and overnight restricted states from discriminating against same-sex couples. It is important to appreciate that what is hidden from view by the drama of high-profile court cases is the very long history of civil rights struggle and social movement activism that made this change possible. Some people today claim that focusing on difference is actually part of the ­problem since dividing the world into separate groups—even for analytic purposes—­ reinforces the differences further. This is a serious danger. When we study “race” or “ethnicity,” we make them “real” for the purpose of our study. When we divide people into “Hispanic” or “female” or “white” groups, we give the meaning attached to these categories greater power. However, an even more serious risk occurs when differences that have real consequences are ignored. This is a risk criminal justice professionals cannot afford to take. For instance, claiming that race does not “really” exist does little to help us explain the markedly disproportionate incarceration of people of color in U.S. jails and prisons. As Alexander (2012, p. 228) writes—in agreement with Martin Luther King—“blindness and indifference to racial groups is actually more important than racial hostility to the creation and maintenance of racialized systems of control.” Similarly, claiming to be gender-neutral does little to help us explain the very high rates of domestic violence and sexual assault perpetrated by men against women (Belknap, 2014). Many people claim that they do not “see” race or gender or class differences, implying that it is virtuous to look beyond such differences in our society. However, our failure to acknowledge difference in world where it has significant consequences only further perpetuates inequality and injustice. An example may help to clarify this point. Imagine for a moment a contest in which two runners are expected to run the same distance to the finish line. Now imagine that one runner has only one leg. Rather than pretending that there is equality between the runners—that they are identical—it makes more sense to acknowledge the difference and give the runner without a leg a head start or a prosthetic device. In other words, fairness sometimes requires principles of equity or making some kind of adjustment to compensate for the real consequences associated with the differences between people. As this example illustrates, to achieve justice it is essential to be able to discuss and analyze the nature of difference and to imagine ways that the divides between us might be bridged. Only through open ­conversations about the reality of difference can we hope to create a society that is more fair and just for all. For those who work daily in justice occupations, misunderstanding or ignoring difference can be a matter of life and death. Assuming that the only danger in our society comes from people who look a certain way may make us vulnerable to serious harm from those who do not fit the stereotype. Much research, for example, has shown that the crime engaged in by white-collar and corporate offenders is far more harmful to the public than the crime committed by traditional street offenders (Michalowski & Kramer, 2006; Reiman & Leighton, 2012). Partly because white-collar offenders and government officials do not fit our stereotypic image of the “criminal,” we have failed to respond effectively to a wide range of extremely harmful behavior, including



Chapter 2  •  Conceptualizing Difference    19

consumer fraud, occupational injury, and environmental pollution. This is a mistake that can only be remedied by careful attention to the construction of difference and the consequences of privileging some groups over others within a democratic society. Part of what makes it so difficult to talk about difference is that there is a tendency to assume that creating differences must be a bad thing. But it is too simplistic to say, “Let’s just do away with difference!” The truth is that, even if we could do away with differences overnight, the world would then be an extremely boring place. The problem is not with difference per se; the difficulty arises in the meaning we make out of difference. It is not a problem that some people have lighter skin and some darker, or that some people hold one set of religious beliefs but not another. The problem is that some societies treat those with one set of characteristics or beliefs as valuable and one set as less worthwhile. It is this process of giving meaning to and placing value on differences that requires our attention. This is especially critical within the justice system. The authors of this book are convinced that those who work in the justice system have a special obligation to ensure that their behavior promotes justice rather than injustice.

Difference and the Pursuit of Justice in a Globalized World Ultimately, the goal of studying difference within the justice system is to ensure that, as a democratic society, we do not use the law and the justice system to socially construct difference in ways that perpetuate inequality and injustice. Instead, it should be our goal to create a justice system that does more to foster human diversity rather than to constrain it. This has never been more important than it is today given how rapidly globalization is changing our society and our world. Globalization, the process of international economic integration, has increased our awareness of the human diversity on the planet, encompassing a remarkably wide range of cultural, religious, ethnic, gender, and social differences, among others. Surprisingly, perhaps, globalization has not led to the diminution of the divides and borders between people, rather it has led to their multiplication, including the intensification of regional divides between the Global North and the Global South, religious divides between Christianity and Islam, class divides between those who are extremely wealthy and those who are extremely precarious, and between those who have the “right to rights” as citizens and those who are excluded from rights whether they are framed as “illegals,” “criminals,” or “enemy aliens” (Mezzadra & Neilson, 2013). The increased tendency to use the rhetoric of war to frame contemporary threats—such as the War on Crime, the War on Drugs, and the War on Terror—relies heavily upon the construction of dangerous “Others” and, in doing so, heightens the borders between social groups (McCulloch & Pickering, 2009). At the same time, globalization has created new opportunities for cooperation, collaboration, and global engagement. In fact, many of the most important global transformations come “from below”—as a result of the decisions by ordinary people to create change (Wonders, 2015). The next generation of justice professionals can also be important change agents, but they will have to understand much more about cultural diversity, global and comparative criminology, transnational crime and justice, and human rights issues than any generation thus far if they wish to effectively foster the pursuit of justice in a globalized world. The new and pressing justice challenges of our time—terrorism, cross-border migration, identity theft, genocide, human trafficking, and climate change, just to name a few—simply cannot be understood without broad intercultural and global knowledge. Indeed, it is our job to investigate difference in order to protect the rich diversity of identities, groups, and individuals on the planet and to guarantee that justice is available to all. The authors of this book recognize that this can be difficult to accomplish

20    Part One  •  Framing Difference

on a practical level. The goals of the justice system are often contradictory, and, despite the fact that human rights concepts and legal frameworks hold tremendous promise for achieving greater justice in some areas, it still remains difficult to arrive at a concept of “fairness” with which we all agree (Weber, Fishwick, & Marmo, 2014). Too often justice practitioners lack the knowledge and skills needed to ensure that justice prevails in an increasingly multicultural society and global world. Surely, one book cannot analyze, let alone overcome, all of the challenges associated with “difference” in the criminal justice system—let alone in the world. However, by investigating how identity and difference affect the justice process, we do hope that this book will provide a useful starting point for those committed to creating a more just society.

Questions for Review 1. What is meant by the idea that “difference is socially constructed?” 2. What is “normative privilege”? Why are some kinds of differences made to matter more than others? 3. What is soft social control and hard social ­control?  Which is more effective for maintaining difference? 4. What is the difference between categorization, prejudice, stereotyping, and discrimination? 5. Explain how law creates and maintains difference by examining a historic example. 6. How does the concept of “intersectionality” help to inform consideration of difference?

7. What are some of the risks and dangers associated with ignoring difference for justice professionals? 8. How has globalization changed the way that we need to “investigate difference”? 9. Consider your own identity. Discuss how your identity has been shaped by the larger social structure, including such features as the time and place into which you were born, social stratification, social institutions, group membership, soft and hard social control, and the presence or absence of prejudice and discrimination. Also discuss the extent of human agency you have over your identity—how much power do you have to change your identity?

References Alexander, M. (2012). The New Jim Crow: Mass incarceration in the age of colorblindness. New York: The New Press. Ayers, A. (1993). The wisdom of Martin Luther King, Jr. New York: Meridian. Barak, G., Leighton, P., & Cotton, A. (2015). Class, race, gender, crime: The social realities of justice in America. New York: Rowman & Littlefield. Barberet, R. (2014). Women, crime and criminal justice: A global enquiry. New York: Routledge. Belknap, J. (2014). The invisible woman: Gender, crime and justice. Stamford, CT: Cengage Learning. Cacho, L. (2012). Social death: Racialized rightlessness and the criminalization of the unprotected. New York: New York University Press. Campbell, M. E. (2007). The implications of racial misclassification by observers. American Sociological Review, 72(5), 750–765. Carrington, K. (2015). Feminism and global justice: New directions in critical criminology. New York: Routledge. Chesney-Lind, M., & Irwin, K. (2008). Beyond bad girls: Gender, violence and hype. New York: Routledge. Davis, G. (2013). Intersex bodies as states of exception: An empirical explanation for unnecessary surgical modification. Feminist Formations, 25(2), 129–152.

Diamond, L. M. (2003). Special section: Integrating research on sexual-minority and heterosexual development: Theoretical and clinical implications. Journal of Clinical Child and Adolescent Psychology, 32(4), 490–498. Fenstermaker, S., & West, C. (2002). Doing gender, doing difference: Inequality, power and institutional change. New York: Routledge. Gabbidon, S. L., & Greene, H. T. (2012). Race and crime. Thousand Oaks, CA: Sage Publications. Garroutte, E. M. (2013). The racial formation of American Indians: Negotiating legitimate identities within tribal and federal law. In S. J. Ferguson (Ed.), Race, class, sexuality & social class: Dimensions of inequality (pp. 286–295). Thousand Oaks, CA: Sage Publications. Howard, J. A., & Alamilla, R. M. (2013). Gender and identity. In S. J. Ferguson (Ed.), Race, class, sexuality & social class: Dimensions of inequality (pp. 189–197). Thousand Oaks, CA: Sage Publications. Hurst, C. E. (2004). Social inequality: Forms, causes, and consequences. Boston, MA: Pearson. Huynh, V. W. (2012). Ethnic microaggressions and the depressive and somatic symptoms of Latino and Asian American adolescents. Journal of Youth and Adolescence, 41, 831–846.



Langston, D. (2004). Tired of playing monopoly? In M. L. Anderson & P. H. Collins (Eds.), Race, class and gender: An anthology (pp. 140–149). New York: Wadsworth. Lorber, J. (2011). Gender inequality: Feminist theories and politics. New York: Oxford University Press. McCulloch, J., & Pickering, S. (2009). Pre-crime and counterterrorism: Imagining future crime in the ‘war on terror’. British Journal of Criminology, 49, 628–645. McDowell, M. G., & Wonders, N. A. (2010). Keeping migrants in their place: Technologies of control and racialized public space in Arizona. Social Justice, 36(2), 54–72. Mezzadra, S., & Neilson, B. (2013). Border as method, or, the multiplication of labor. Durham, NC: Duke University Press. Michalowski, R. J., & Kramer, R. C. (2006). Statecorporate crime: Wrongdoing at the intersection of business and government. New Brunswick, NJ: Rutgers University Press. Omi, M., & Winant, H. (2015). Racial formation in the United States. New York: Routledge. Ore, T. E. (2013). The social construction of difference and inequality: Race, class, gender and sexuality. Boston, MA: McGraw-Hill. Parenti, M. (2010). Democracy for the few. Stamford, CT: Cengage Learning. Patterson, C. J. (2013). Schooling, sexual orientation, law and policy: Making schools safe for all students. Theory Into Practice, 52, 190–195. Potter, H. (2015). Intersectionality and criminology: Disrupting and revolutionizing studies of crime. New York: Routledge.

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Reiman, J., & Leighton, P. (2012). The rich get richer and the poor get prison. New York: Routledge. Ridgeway, C. L. (2011). Framed by gender: How gender inequality persists in the modern world. New York: Oxford University Press. Ritchie, B. E. (2012). Arrested justice: Black women, ­violence, and America’s prison nation. New York: New York University Press. Shelden, R. G. (2007). Controlling the dangerous classes: A critical introduction to the history of criminal justice. Boston, MA: Allyn & Bacon. Stearns, P. N. (2010). Childhood in world history. New York: Routledge. Telles, E. E. (2006). Race in another America: The significance of skin color in Brazil. Princeton, NJ/Oxford: Princeton University Press. Uys, P. D. (1988, September 23). Chameleons thrive under apartheid. New York Times, pp. 27(N), A35(L). Weber, L., Fishwick, E., & Marmo, M. (2014). Crime, justice and human rights. New York: Palgrave Macmillan. West, C., & Fenstermaker, S. (2002). Doing difference. In  S. Fenstermaker & C. West (Eds.), Doing gender, doing difference (pp. 55–80). New York: Routledge. West, C., & Zimmerman, D. (1987). Doing gender. Gender and Society, 1(2), 125–151. Wonders, N. A. (1998). Postmodern feminist criminology and social justice. In B. Arrigo (Ed.), Social justice/ criminal justice (pp. 111–128). Belmont, CA: Wadsworth. Wonders, N. A. (2015). Transforming borders from below. In L. Weber (Ed.), Rethinking border control for a globalising world: A preferred future (pp. 190–198). New York: Routledge.

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3

Conceptualizing Difference Through an Intersectional Lens Sarah Prior and Lynn Jones

Chapter Objectives • Define and identify the theoretical concept of intersectionality. • Define and identify the theoretical concept of interlocking oppressions. • Define and identify the theoretical concept of microaggressions. • Define and identify the theoretical concept of privilege. • Explore how identities are socially constructed and the ways these social constructions influence how individuals experience difference in the justice system. • Identify concepts presented in this chapter and apply them to the other chapters in this text. In Chapter 2, Wonders suggests that differences are socially constructed; that is, difference is less about specific biological differences, and more about the importance and value we place on those differences. In the United States today, people place significant importance on social identity categories, including how people are different from one another. For example, we often consider how men and women are different, how citizens and non- citizens are different, and how able-bodied and non-able-bodied people are different. This binary thinking creates hierarchies that are built on and frequently reproduce stereotypes about the degree to which difference matters for social position or status. This is not to say that everyone is the same—in fact, we recognize, appreciate, and value the diversity of the human race. It is to say, however, that the differences that we believe in so strongly (i.e., men and women) may not be as different as we believe or we reinforce. When we think of the role of race (or gender, or any other social identity category) in our society, we tend to place heavy importance on the differences between races or genders, rather than acknowledging that there are often more differences among people from the same racial groups than between racial groups, or we assume there are more differences between men and women than there are among women. As Fausto-Sterling (2005) has described, it is likely that there are many other factors besides biology that play into how difference is constructed. In other words, the biological differences people have (i.e., chromosomes, external genitalia, etc.) often play less of a role in directly determining their experiences in the world, but the socially constructed value we have placed in such differences does have direct impacts in creating different social interactions. Additionally, the socially constructed nature of these biological differences has long-term consequences when we think about how they have played out to produce men as the dominant group and women as the subordinate. The same can be said for the socially constructed value we place on skin pigmentation (i.e., race). In the United States, there is significant value placed on the “meanings attached to cultural variation” (Chapter 2). While there are biological differences between us, and those biological differences do matter, the value and meaning ascribed to those differences create 22



Chapter 3  •  Conceptualizing Difference Through an Intersectional Lens   23

societal expectations about behaviors that normalize difference as if it is only biological. In this chapter, we build on discussion of the social construction of identity categories provided in Chapter 2. We present several theoretical concepts that further discuss how difference is experienced generally, and in the justice system in particular. We first highlight the theoretical significance of the concept of intersectionality (Crenshaw, 1991) presented in the previous chapter for understanding how multiple overlapping and intersecting identities come to have significance in how people experience their interactions with the criminal justice system. We present the additional framework of interlocking oppressions (Ken, 2007) in order to both highlight the strengths of intersectional theory and fill in some of the gaps. Second, we discuss the term ­microaggression. We describe that while the country may have shifted from more blatant/overt kinds of discriminatory interactions, these more nuanced and subtle forms of discrimination and bias (microaggressions) are still readily apparent in day-to-day life in the United States. As illustrated throughout this text, microaggressions and microaggressive behavior have become normalized in U.S. culture and are deeply engrained in our language and interactions. In addition to intersectionality, interlocking oppressions, and microaggressions, we discuss racialization, or the complex process by which people ascribe complex characteristics to racial characteristics. Racialization and the process of becoming “raced” are important ideas when thinking about how different racial groups experience the world and, more particularly, experience their interactions (both positive and negative) with the justice system. The final concept we address is privilege. Most chapters in this book address issues of ­privilege—whether creating an earned or unearned advantage. Social identity categories and their related socially constructed meanings play a significant role in the kinds of advantages and disadvantages certain groups of people experience. Taken together, these concepts help to illuminate the complex interaction of social location, identity, and oppression and how each influences the way victims, offenders, and professionals experience “justice.”

Intersectionality of Identities When discussing difference, most of us tend to operate based on what feminists have long referred to as the “add and stir” method, or what Andersen and Collins (2012) refer to as “ranking oppressions.” This means that we tend to think about big differences, such as race, and then add each additional difference. This method of ranking oppressions is often prominent and reflects the visibility of certain social identity categories, while eclipsing others. When social identity categories are talked about, most often only one category is really being addressed. It also means that in common conversation and in the media in particular, certain social identity categories get valued, while others are simply attached to individuals in less meaningful ways. As Barak, Leighton, and Cotton (2014) point out, sometimes identities are more salient than others, but a simultaneous analysis of race, class, and gender (among other social ­identities) is critical for understanding how a person experiences the world. So, rather than thinking about someone as a poor, white woman, we tend to think of her as a woman who is poor and white. The latter highlights an additive thinking that prioritizes certain ­identities rather than emphasizing that identities overlap. Differences (i.e., race or gender or citizenship status) are frequently prioritized and presented hierarchically rather than discussed as intertwined. However, most people do not experience just one social identity category at a time. For instance, the authors of this chapter are not just female, or just white, or just heterosexual. Rather, some differences may be more dominant at any given time, yet other identities are also relevant and continue to shape experiences. For example, women with different interlocking identities experience motherhood very differently even as they share some commonalities. So, while motherhood is regarded as having to do solely with being a

24   Part One  •  Framing Difference

woman (particularly child birth), the experience of motherhood is influenced by other identity categories beyond gender, such as class, race, or citizenship status, among many others. Popular and theoretical conversations about difference tend to perpetuate the notion that only certain differences matter, or that some differences are more important than others. Race and gender, for example, dominate discussion of difference; however, other identity categories and differences matter and are important in determining life chances and experiences. Ability, ethnicity, religion, sexual orientation, citizenship status, and age, among others, all play significant roles within interactions in the criminal justice system. For example, as discussed further in Chapter 7, transgender people of color often experience the most significant and violent kinds of victimization (GLAAD, 2015). This is not about only their race, gender identity presentation, or sexual orientation. Rather, it is about the fact that all of their identities together fall outside of categories that have been normalized and deemed appropriate in popular U.S. culture. Differences intersect, overlap, and interconnect with one another and have consequences for crime and victimization, as well as for justice system interactions. As early as Sojourner Truth’s (1851) “Ain’t I a Woman” speech, feminists of color have been employing the concept of intersectionality to express the fact that often, and particularly within institutions such as law or academia, ideologies like “true womanhood” do not apply to them as women of color. While the idea of intersectionality appeared much earlier, Kimberle Crenshaw (1989) popularized the term when she grappled with the experiences of African-American woman filing discrimination claims. In the well-known “Demarginalizing the Intersections of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989), Crenshaw examined three court cases to illustrate the many ways the court and legal precedent neglected and/or further marginalized women of color. For example, in the DeGraffenried v. General Motors case, the court rejected the argument that discrimination could be experienced based on a combination of race and sex. When African-American female workers at General Motors (GM) brought forward action under the Civil Rights Act of 1964 alleging race and sex discrimination, the court ruled, essentially, that since there were African-American males working at GM there could not be race discrimination and since there were white females working at GM there could not be sex discrimination. The Court failed to recognize that the women who filed suit were experiencing discrimination based on the fact that they were African-American females—that is, they were both African American and female. They could not get factory positions (like African-American males) because they were not male and they could not get secretarial positions (like white females) because they were black. It was this specific experience and legal argument that framed later scholarly work in intersectionality and intersectional theory. Building on these women’s experiences and exploring the various intersections of social inequality, Patricia Hill Collins (2000) introduced her concept of the “matrix of domination.” For Hill Collins, we each stand at a unique point of crosscutting intersections, which are derived from and through social positions of race, class, gender, sexual orientation, citizenship status, nationality, and many others. These overlapping positions create a specific experience that is about being both or multiple, rather than just one. In order to understand how someone experiences the criminal justice system in the United States, it is important to understand how social locations crisscross systems of oppression. Similarly, what May (2015) refers to as “both/and” is that people may find themselves simultaneously within both oppressed and privileged groups. The both/and lens, according to May (2015), offers a starting point to evaluate a situation from multiple standpoints, which helps create “room to identify shared logics while accounting for differences, and can be used to approach tensions and contradictions as



Chapter 3  •  Conceptualizing Difference Through an Intersectional Lens   25

having logics and implications of their own, rather than treating them primarily as problems to smooth over” (p. 65). The complexities of how identities intersect and overlap one another play a particularly important role in how people experience both privilege and oppression, and thus, how they experience interactions with the criminal justice system. As Nash (2008) suggests, intersectionality has “worked to disrupt cumulative approaches to identity (i.e. race + gender + sexuality + class = complex citizenship), and to problematize social processes of categorization through strategic deployments of marginalized subjects’ experiences” (p. 6). In this way, the concept of intersectionality attempts to disturb the “add and stir” and “ranking oppressions” methods ­mentioned above. However, while the concept has been used as both a theoretical and a methodological tool with increasing popularity in the last three decades, some argue that the concept requires further refining in order to avoid the pitfalls it attempts to critique.

Interlocking Oppressions The theoretical concepts of intersectionality and interlocking oppressions are closely related, though Ken (2007) takes the stance that the concept of interlocking oppressions builds on this framework and fills in the gaps that the concept of intersectionality leaves. She argues that intersectionality is based on the premises that (1) race, class, and gender are social structures; (2) structural locations shape perspectives; (3) no individual is all-oppressed or all-oppressing; (4) the meanings of race, class, and ­gender are localized; and (5) race, class, and gender depend on and mutually constitute each other (Ken, 2007, p. 1). Ken (2007) claims that while intersectionality has been a valuable tool, the concept has been used too loosely both methodologically and theoretically. By explicating the concept of interlocking oppressions, she is trying to “develop new metaphoric representations that allow us to operationalize and analyze race, class and gender with greater precision” (p. 2). In doing so, Ken uses the notion of social locations and argues that it is important theoretically to think about both social and physical locations because individuals are relegated to specific social locations that come with a variety of advantages and disadvantages. Social locations reflect various forms of economic, social, and political power, which, in turn, may “systematically ignore” (p. 2) the lives and social locations of those who do not occupy the same position. Like Crenshaw (1989), Ken (2007) discusses the situation of women of color and the fact that their social location is often ignored, which means they have few opportunities to express themselves in “laws, policies, literature, history, science, patterns of production, media representation, and other living arrangements structured around conditions other than these” (p. 2). Further, Ken (2007) claims that the term intersection lacks the ability to clearly reflect the dimensions of race, class, and gender. Interlocking, on the other hand, suggests, “race, class, and gender are not separate entities that intersect one another, but are completely bound up with one another, incapable of being separated” (p. 13). In addition to the critiques offered by Ken (2007), the concept of intersectionality often neglects to interrogate the experiences of “unmarked” normative groups such as whites, men, and members of the middle class. Methodologically and theoretically, the conceptual tool of intersectionality centers most of its discussion on non-normative groups, those who are commonly “othered” (Choo & Ferree, 2010). In doing so, this approach fails to challenge the status quo by neglecting to discuss hegemonic groups. By hegemonic we mean those groups that experience privileged identities that are ­normalized, valued, and dominant in U.S. society, such as males, whites, citizens, heterosexuals, and so forth. Instead, it is important for us to underscore the multiplicative and interactional component of intersectionality of identities at both the structural and individual levels. In an attempt to address some of these concerns, chapters in this text go beyond those

26   Part One  •  Framing Difference

positions that have been “othered” to include a more complete picture of identity categories. Chapter 10 explores how whiteness and white privilege have become normalized in the United States but underlines the fact that privilege is not just about one category of difference. Rather, one’s experience of privilege or disadvantage or oppression is tied to the specific social location/social identity (or identities) experienced by that individual. For example, a poor white person experiences the world much differently than a middle class or wealthy white person. As such, they experience the justice system differently. While they are both white, and benefit from a system of white privilege compared to non-whites, their other social identity categories intersect with their whiteness to influence and shape how they experience the world around them, as well as how they are able to experience their privileged (white) racial status. As is further discussed in Chapter 9, class identity cannot be detached from other social identity categories. Various class positions intersect with other identity categories and influence how individuals are able to experience (or not experience) privilege, which influences how they experience their interactions with the justice system. For instance, the ways in which we socially construct “dangerous others” often combines less privileged statuses of being poor and a person of color, and helps explain the harsher justice responses experienced by such individuals. Chapter 9 covers the entire range of class categories and focuses on how the privileged status of wealth differs from the status of poor. The chapter provides an overview of how the various class positions are interlocking with later chapters on race. The concept of interlocking oppressions provides those interested in studying difference within the criminal justice system with the theoretical tools to understand that social identities are not just rooted in biology or physical characteristics, nor are they simple aspects of identity. Rather, social locations provide an understanding and framework that explains how social identity characteristics (race, class, gender, etc.) are “noticed, interpreted, and used as the basis for relegating people to different social locations” (Ken, 2007, p. 4). In addition to the idea of social locations (rather than identities), Ken provides a discussion of structural locations. For purposes of this text, we can understand that structural locations vary in form and meaning. In some instances, they are seen as conferring “blinders” and in others as providing the “gift of sight.” Ken (2007) would argue both and that using structural locations (rather than intersections) allows us to see that how people are located structurally shapes their perspectives (p. 6). As we look at issues of social identities and social/structural locations, it is important to recognize that we cannot think about oppression in binary/dichotomous terms. Often, difference categories are presented in purely dualistic terms, for example, men and women, black and white, and offender and victim. These binary classifications become problematic when we fail to recognize that people’s identities do not fit perfectly in one place but instead they may fall along a continuum or spectrum. Rather than dichotomous classifications, we must recognize that oppression reveals “tangled situations” (Ken, 2007, p. 6) that illustrate complex places where we are often complicit in exploitation of the economically disadvantaged, for example, and spaces where we may be complicit in our own oppression. As we described above, there are instances where we are simultaneously privileged and oppressed. For example, class privilege may provide someone with educational opportunities, or opportunities for social networking and the accumulation of cultural capital; yet being female may ­create an oppressive or hostile work environment in which this person is not taken as ­seriously as her male colleagues, or may experience sexual harassment in the workforce. When we focus on dichotomous classifications, we neglect the in-between or complexities. Binary understandings eclipse the fluidity of situations and instead presume static positions. Social identities are not static. Rather, they may change according to time and place. For example, the meaning of one’s identity may change according to changes in other social locations, in social interaction, or in other variable circumstances such as with sexual orientation and the expression of gender identity. Social identity categories are socially constructed and the meaning we place on



Chapter 3  •  Conceptualizing Difference Through an Intersectional Lens   27

them is time and place dependent; thus, historical, situational, and structural forces influence the fluidity of identity. As we have demonstrated, when oppressions are ranked and associated with advantage, they become reified as permanent or “real” rather than socially created. Instead of ranking or placing oppressions in a hierarchy, it is important to acknowledge that structures like race, gender, class, citizenship, and conviction status, among others, “create, shape, influence, and depend on each other” (Ken, 2007, p. 11). The United States continues to have a system of unequal social locations, which perpetuates stereotypes and discrimination; thus, such inequality creates negative perceptions of—and experiences for—individuals in those categories that continue to be classified as “other.” These kinds of biased acts can come in overt forms—think of Jim Crow era’s discrimination with laws, policies, and lynchings—or more subtle forms such as slang terms like “that’s so gay” or national sports teams such as the Washington Redskins. These more subtle forms of discrimination and oppression often come in the form of microaggressions.

Microaggressions As highlighted throughout this text, there seems to be a changing nature of discrimination. While there remain blatant kinds of discrimination like hate crimes discussed in Chapter 20 or overt kinds of racial profiling as discussed in Chapter 14 or Chapter 15, much discrimination has become more covert and subtle and less frequently embodies Jim Crow era ideas about discrimination/bias/prejudice. The term “racial microaggressions” was first coined by a psychiatrist named Chester Pierce, M.D., in the 1970s. D. Wing Sue later popularized the term when he published a series of articles that established a taxonomy of microaggressions, particularly racial microaggressions (Sue, 2010a, 2010b). Others have built on Sue’s concept and have further established the impact of microaggressive behavior and highlight that people experience microaggressions in all aspects of life, including academic, social, and public settings (Nadal, 2013; Smith, Allen, & Danley, 2007; Wells, 2013; Yosso, Smith, Ceja, & Solórzano, 2009). Microaggressive behavior can be difficult to detect, which also makes it difficult to respond to such behaviors under official policy or law. Unlike blatant and overt racism, sexism, and nationalism, among others, that are “intentional, visible, and unambiguous,” microaggressive behavior is “hidden or unnoticed because it is built into cultural and societal norms” (Capodilupo et al., 2010, p. 184). Microaggressions are often part of everyday interactions and can range from slang references to physical responses (i.e., someone clutching their purse tighter or crossing the street to avoid someone with certain characteristics, or rolling their eyes). Frequently when microaggressive behavior is called out or challenged, others respond by getting defensive and claim that someone is just being “sensitive” or “blowing something out of proportion.” Such reactions may further reinforce the normative nature of microaggressions if the challenge is suppressed with such criticism. Individuals who point out a microaggressive behavior or statement are accused of not having a sense of humor or taking things too seriously; those using microaggressions can excuse their behavior as “just a joke” or not meaning anything. However, the social interactions involving microaggressions do have meaning as they socially construct individuals’ identities and social locations, even if in subtle ways. The idea of an “angry feminist” may illustrate this idea—that a woman who points out gender inequality and advocates for a feminist viewpoint is judged for going beyond the “normal” emotional expression rules for women, and the content of her claim (fairness or respect for women) is dismissed without evaluation of its worth. For those who experience negative microaggressive encounters commonly, these kinds of behaviors have a cumulative impact—that is, like what Harvard Professor of Psychiatry Alvin Poussaint calls “death by a thousand nicks” (Williams, 2002). One of the most detrimental aspects of microaggressive behavior is that it is usually delivered

28   Part One  •  Framing Difference

by well-intentioned people who do not know, understand, or realize that what they are saying/doing/not doing is harmful to other socially constructed and socially devalued groups (Sue, 2010a). This is another example of privilege, as those with privilege may minimize or be unable to recognize the impacts of their microaggressive behavior on those without privilege. The lack of intent differs greatly from the kinds of discrimination and bigotry seen in the past.

Microaggressions in Everyday Life Jenna Fejervary and Sarah Prior Microaggressions are subtle, normalized verbal interactions/ exchanges between individuals in social interaction that send a derogatory message to groups that occupy oppressed categories of difference. While microaggressions are typically understood on the basis of race, called racial microaggressions, they can also occur on the basis of gender, sexual orientation, ability, and class. Racial microaggressions have been defined as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color” (Sue et al., 2007, p. 273). Racial microaggressions are different from overt racism in that they are subtle, and often not seen as harmful by the perpetrator, and these insults can also be unintentional. Imagine a situation where a white American is speaking to an Asian American. The white American tells the Asian American that she speaks English well. The Asian American was born and raised in the United States. To the white American, this exchange may be intended to compliment the other person, but the “compliment” serves as a reminder to the Asian American of her difference, that she is not part of the dominant culture. In this sense, she is portrayed as a perpetual foreigner (Sue et al., 2007). Microaggressions reflect the underlying differences that are maintained in the dominant culture and criminal justice system in the United States. Another example can be seen in the classic playground insult, “you throw like a girl.” This microaggression, intended as a playful joke, reinforces the dominant understanding that sports are the domain of boys and men, and that women’s athleticism is subordinate to men’s (Kaskan & Ho, 2016). Further, this microaggression is used to reinforce a hegemonic understanding of masculinity and perpetuate the notion that anything that can be considered feminine can be used as an insult to men. Because microaggressions are frequent and normalized in everyday social interactions, they remind those groups who experience them that they are subordinate to the dominant group while simultaneously isolating them from the ­dominant culture (McCabe, 2009). Microaggressions hurt individuals and communities by reinforcing and normalizing broader stereotypes that work to keep disadvantaged groups in their place.

Here are some microaggressions:

examples

of

everyday

• A white person speaking Spanish to an individual they assume to be Latino. • Complimenting women on their driving abilities. • A professor asking the only black student in the class for his or her take on a racial issue. • Telling a homosexual person they don’t “act gay.” • Asking an Asian person how to do a math problem. • Telling a girl “I know, math is really hard.” • Staring at a gay couple holding hands in public. • Referring to immigrants as “aliens.” • When people of color are asked to speak for their entire race and white people are not. • When referring to someone as a “credit to their race.” • When people believe someone with a disability is always in need of assistance and/or cannot be in an amorous relationship. • A female sports team having fewer resources and female teams getting paid less than male sports teams. • Telling someone who is gay that it is “just a phase.” • Calling someone or something “retarded.” These are just some of the many examples of how language and interactions that include stereotypes related to one’s difference perpetuate problematic ideas about oppressed groups. As discussed throughout chapters in this book, microaggressions are just one example of how the social construction of difference defines some groups and their characteristics as normative while further disadvantaging and “othering” groups characterized by difference. This process is reinforced in social interactions and through institutions such as educational institutions, criminal justice systems, and through the mass media. References Kaskan, E., & Ho, I. (2016). Microaggressions and female athletes. Sex Roles, 74(7/8), 275–287. McCabe, J. (2009). Racial and gender microaggressions on a predominantly-White campus: Experiences of Black, Latina/o and White undergraduates. Race, Gender & Class, 16(1/2), 133–151. Sue, D. W., Capodilupo, C. M., Torino, G. C., Bucceri, J. M., Holder, A., Nadal, K. L., & Esquilin, M. (2007). Racial microaggressions in everyday life: implications for clinical practice. American Psychologist, 62(4), 271.



Chapter 3  •  Conceptualizing Difference Through an Intersectional Lens   29

Recent media campaigns have attempted to tackle some of the many examples of microaggressive behaviors. The Gay, Lesbian, and Straight Education Network (GLSEN) piloted the “Think B4 You Speak” campaign that confronted the frequent use of the term “that is so gay.” In 2014, Harvard University’s “I, Too, Am Harvard” photo campaign on Tumblr showed black students sharing phrases they have heard, and this generated national attention to racial microaggression and launched similar efforts at other universities (http://itooamharvard.tumblr.com). Facebook pages about microaggression (see https://www.facebook.com/microaggressions) also have become a place to publicize and challenge the everyday negative interactions that people experience due to their difference. Such efforts show the ways in which difference is being reclaimed, redefined, and reconstructed more positively, while also highlighting microaggressive language and behavior as impactful and deserving of change. Chapters throughout this text discuss issues of microaggressions. For example, Chapter 4 discusses Sue’s (2010a) concepts of microassaults, microinsults, and microinvalidations. These examples highlight the everyday nature of how ­microaggressions have become normalized in everyday language and interactions. Microaggressions can come in many forms and are not specific to any one particular group. As highlighted in Chapter 7, microaggressions are seen in anti-gay language and the still prevalent legal restrictions placed on LGBT individuals. Similarly, Chapters 14 and 16 demonstrate examples of how negative social constructions of difference play out in the language used in daily interactions and in law. Muslim Americans are profiled as “extremists” and face everything from jokes to physical reactions such as hate victimization (Chapter 20); Latinos are assumed to be “foreign” rather than native born and face slurs (Chapter 15). Black college students may be praised for their “success,” which is viewed as overcoming the stereotyped “failure” of many black individuals while minimizing the structural sources of such disadvantage. Asian Americans are also praised for their “model” behavior and achievement in relation to other minority groups (Chapter 13). General comments that people make with seemingly good intentions, such as “I don’t see race or color,” are hurtful as they ignore a person’s experience as different. Please see the textbox above for further examples of the range of microaggressions related to gender, race, sexual orientation, and other differences.

Racialization Similar to intersectionality, interlocking oppressions, and microaggressions, the theoretical construct of racialization can be used to illustrate the ways race and other social identities influence how people make sense of the world around them, particularly the ways people make sense of the justice system. Racialization is the complex process of socially constructing and ascribing characteristics and meanings to biological racial categories. These characteristics range from things like intellect, work ethic, or abilities to physical strength. What is important here is that, since race is a social construct, those characteristics that are ascribed to certain groups are based on myths about race rather than biological “facts.” The process of racialization stigmatizes and labels groups, particularly based on race. Though race is socially constructed and there is no “biologically pure” race, there are significant and real consequences for the process of racialization. As Chapter 2 points out, this socially constructed process is not based on biological facts but rather on the meanings assigned to categories and groups based on time and place. And thus, the fact that racialization is presented as a biological fact is problematic since there is no specific evidence of where, for example, white ends and black begins. While there has been historical flexibility in the process of racialization, the consequences have exacerbated human distinction and have normalized whiteness while creating all non-white “others” as different.

30   Part One  •  Framing Difference

While the concept of racialization has evolved over time, the term is often attributed to sociologist Robert Miles in his 1989 book Racism. Miles (1989) explains the process of racialization as a dialectical process by which meaning is attributed to particular biological features of human beings, as a result of which individuals may be assigned to a general category of persons which reproduces itself biologically. . . The process of racialization of human beings entails the racialization of the processes in which they participate and the structures and institutions that result (p. 76).

Others have theorized about the concept of racialization; for example, Fanon described the concept of the “racialization of thought” (2001) and Webster (1992) defined the concept of racialization as “a systemic accentuation of certain physical attributes to allocate persons to races that are projected as real and thereby become the basis for analyzing all social relations” (p. 3). Racialization does not just happen for people of color, contrary to what popular culture and mass media would have us believe. However, since whiteness is usually the normative category in the United States by which other racial groups are measured against, whiteness is often not discussed. As Dyer (1997) emphasizes, white people in Western society have had significantly more control over the definition of themselves and the definitions of others. Just as with the concept of intersectionality, racialization has been critiqued in recent years. For example, Eduardo Bonilla-Silva (1997) argues that although all racialized systems are hierarchal, “the particular character of the hierarchy, and thus the racial structure, is variable. . .” (p. 470). This challenges the way Omi and Winant (1994) conceptualize the concept through their discussion of racial formations and the way many U.S. theorists have been criticized for racializing the world. Instead, BonillaSilva (1997) proposes that we use “the more general concept of racialized social systems as the starting point for an alternative framework” (p. 496). A racialized social system refers to societies in which “economic, political, social and ideological levels are partially structured by the placement of actors in racial categories or races” (p. 496). Much like Ken’s (2007) discussion of interlocking oppressions, by focusing on social systems and structures, we may be better able to discuss issues of race, racism, and racialization in the United States. Chapter 13 discusses such racialized experiences. As can be seen in the discussion of how many Asian Americans experience the criminal justice system in the United States, racialization and the construction and maintenance of racial categories influence who the justice system sees and interprets Asian Americans. Highlighted throughout this chapter is the fact that racialization in the United States has significant impact on certain populations that range from entry denial, alienation and social hostility, economic impediments, to political disenfranchisement. The construction of race is historically situated as a process based on exclusion. As Williams (1997) points out, “the assumptions and layers of social meanings attached to socially defined racial groups and their phenotypical, behavioral presentation have become the social barometer for how we come to understand, respond to, and interact with individuals as representatives of these groups” (p. 61). Chapter 10 underscores the often-neglected concept of white racialization. As described, whites are often thought to have no race due to their hegemonic status. Whites are thought to be the norm by which all other racial categories are judged. For example, if a newscaster does not specify the race of the offender or the victim in a news story, the implication is that the person is white. The race of non-white offenders is almost always specified, which leads to problematic stereotypes about crime and offending of non-whites (see Chapters 10 and 12 for further discussion).



Chapter 3  •  Conceptualizing Difference Through an Intersectional Lens   31

Privilege In the previous edition of this textbook, Gould (2009) discussed privilege in two important ways. He described how privileges and disadvantage are either earned or unearned. While many scholars have discussed unearned and earned advantages, Gould (2009) makes the important point that advantages that have been earned often are “the result of having access to unearned privileges or, stated differently, unearned privileges gained by earlier generations are often passed on to later generations in a way that unearned privileges accumulate through several generation” (p. 23). So, while privileges like class privilege are often thought of in terms of hard work and earned advantages, frequently, these privileges are based on advantage that was unearned. What is important to point out is that while individuals are the ones who experience privilege (or the lack thereof), individuals are not in the position to actually be privileged. Instead, “privilege is defined in relation to a group or social category” (Johnson, 2012, p. 115). This is how some people can belong to certain privileged groups without feeling like they experience privilege. Often, when scholars discuss issues of privilege, they use Peggy McIntosh’s (1988) reflection on her own white privilege to highlight the many ways that privileges are normalized. For McIntosh, she is scrutinizing the many ways her own whiteness is privileged. For example, when being taught history she sees representations of people who look like her as victors, she can go shopping without fear of being followed around by a store clerk, she can find bandages and makeup in her own “flesh” color, when she gets pulled over she does not have to worry that it is because of her race, and similar experiences (McIntosh, 1988). In the years that have followed, other scholars and activists have created similar “knapsacks” and checklists of different kinds of privilege such as the Male Privilege Checklist (Ampersand, 2006, http://www.cpt.org/files/ US%20-%20Male%20Privilege%20Checklist.pdf) or the Class Privilege Checklist. Ampersand’s (2006) Male Privilege Checklist provides important examples of privilege that reach beyond race. He emphasizes that just as whites are often unaware of their own privilege, men in the United States are also unaware of the many ways they are advantaged due to a system of patriarchy that has operated in North America since its colonization. Ampersand (2006) highlights his ability as a male to secure employment and education, his far less significant chance of being sexually assaulted, his sexual freedom without risk of derision or contempt, and, above all, his ability to be unaware of his male privilege. The checklist includes 45 privileges that U.S. men experience, often at the expense of women. While this list also has its critiques, the important point here is that those who experience privilege, whether it is sex privilege, racial privilege, or class privilege, have an obligation to shed light on how certain privileges benefit some at the expense of others. McIntosh’s claims have been critiqued and can be seen as out of date. Regardless, she provided an important framework for understanding that privilege (be it racial ­privilege, gender privilege, or class privilege) is something that provides unearned advantages to those people who fit within the privileged classes. She urged people to understand that systems of privilege exist and because there are systems of privilege there is also the existence of unearned disadvantage, which usually involves a ­corresponding existence of over-advantage (McIntosh, 1998). For example, white people did not do anything to earn their white privilege/whiteness. They reap advantage because their racial category is privileged in the United States. There is nothing biologically superior that dictates that certain groups received benefits and advantage over others. Instead, the socially constructed narrative makes it feel as if it is a biological imperative. In her important article “Explaining White Privilege to a Broke White Person,” Gina Crosley-Corcoran (2014) illustrates the fact that many of the privileges addressed

32   Part One  •  Framing Difference

in McIntosh’s seminal piece seem to be more about class privilege than specifically racial privilege. White people who lack class privilege often refute notions of racial privilege because, after all, they do not experience many of the kinds of privilege McIntosh and others discuss. Crosley-Corcoran (2014) highlights the important fact that the experience of privilege, like the experience of the criminal justice system, has to do with how many overlapping categories of difference interlock. For example, while it is difficult to refute that white privilege exists, the experience of white ­privilege often relates more to other categories of difference such as class, citizenship, sex, ­sexual orientation, and gender identity, among others. For Crosley-Corcoran and many other scholars, this means that belonging to more than one category of privilege, “especially being a straight, middle-class, able-bodied male, can be like winning a lottery you didn’t even know you were playing” (2014, para. 25). Importantly, like ranking oppressions, no one form of privilege is experienced the same way, which also means that discrimination (be it racial, sex, gender, etc.) is not equal to other kinds of discrimination. Understanding and acknowledging that privilege exists and that certain groups of people experience significant unearned advantages while others experience significant unearned disadvantage is not about placing blame for the past on those living in the present. Or, as Crosley-Corcoran says, “recognizing privilege doesn’t mean suffering guilt or shame for your lot in life. Nobody’s saying that straight, white, middle-class, able-bodied males are all a bunch of assholes who don’t work hard for what they have” (2014, para. 26). Instead, recognizing privilege is about being aware that some people take for granted what others have to work much harder for. It also means that the notion of the “American Dream” is likely not achievable for everyone in the same way.

Reconstructing Intersectionality Throughout this chapter, we have discussed the socially constructed meanings associated with the multiple identities that individuals hold simultaneously or how salience of such meanings varies depending on social context. The different concepts elaborated in this chapter remind us that there are impacts of language or behaviors that assign meaning to difference, even if these occur accidentally or without intent to harm. In fact, the very attempts to notice difference—such as with a “harmless” compliment or joke—can mean reinforcing stereotypes and inferior status in relation to a more privileged status. By drawing attention to these more subtle forms of constructing meaning about difference, we can better understand that this daily social interaction can either recreate—or change for the better—the experience of difference and privilege. In many of the chapters that follow, there are numerous historically rooted illustrations of how difference has mattered—and continues to matter—due to ­long-standing social meanings associated with particular identities. Socially structured inequalities within society persist due to legal constructs that make official the normative experience while ignoring or criminalizing the experiences of others. Further, even though each chapter may be titled to define a single difference category, such as African Americans, or persons with a disability, we remind you to draw connections across chapters to better capture the interlocking oppressions and intersectional reality of people’s experiences with privilege, racialization, microaggression, and the meaning of difference. It is also important to remember that these are more than just concepts or historical experiences of difference; rather, these concepts should inform the way you understand the causes of criminal behavior and the interactions of offenders with justice officials, the ways in which victims may or may not be blamed for their ­victimization, and whether justice workers face discrimination or challenges to prove themselves.



Chapter 3  •  Conceptualizing Difference Through an Intersectional Lens   33

Questions for Review 1. Why does Ken (2007) argue for using the concept of interlocking oppressions rather than using the concept of intersectionality when considering difference? 2. Discuss how the criminal justice system historically and currently neglects to see how identities overlap to influence life experiences. 3. In what ways have the experiences of those most commonly “othered” shaped the intellectual discussion of identity? 4. In addition to the examples provided within the chapter, what other examples of microaggressions can you think of? Have you had experiences of either being

microaggressed because of your difference or being the microaggressor because of privilege? 5. How does intent matter in terms of microaggressions? 6. Make a list of your own privilege (i.e., racial privilege, gender privilege, class privilege, citizenship privilege, etc.) and discuss how your privilege is “unearned.” Then make a list of the ways you experience oppression. How is that disadvantage/oppression unearned? Finally, discuss how privilege is often perceived both by those groups who experience it and by those groups who do not experience it.

References Andersen, M. L., & Collins, P. H. (Eds.). (2012). Race, class & gender: An anthology of gender and sexism (8th ed.). Belmont, CA: Wadsworth. Barak, G., Leighton, P., & Cotton, A. (Eds). (2014). Class, race, gender and crime: The social realities of justice in America (4th ed.). Lanham, MD: Rowman & Littlefield Publishing Group. Bonilla-Silva, E. (1997). Rethinking racism: Toward a structural interpretation. American Sociological Review, 62(3), 465–480. Capodilupo, C., Nadal, K., Corman, L., Hamit, S., Lyons, O., & Weinberg, A. (2010). The manifestation of gender microaggressions. In D. W. Sue (Ed.), Microaggressions and Marginality: Manifestations, Dynamics, and Impact (pp. 184–216). New York: Wiley. Choo, H. Y., & Ferree, M. M. (2010). Practicing intersectionality in sociological research: A critical analysis of inclusions, interactions, and institutions in the study of inequalities. Sociological Theory, 28(2), 129–149. Collins, P. H. (2000). Black feminist thought: Knowledge, consciousness, and the politics of empowerment. New York: Routledge. Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 1989(1), article 8. Crenshaw, K. (1991). Mapping the margins: Intersectionality, identity politics, and violence against women of color. Stanford Law Review, 43(6), 1241–1299. Crosley-Corcoran, G. (2014). Explaining White Privilege to a Broke White Person. Huffington Post. 5/8/2014. http:// www.huffingtonpost.com/gina-crosleycorcoran/ explaining-white-privilege-to-a-broke-white-person_ b_5269255.html. Dyer, R. (1997). White. London: Routledge. Fanon, F. (2001). The wretched of the Earth. New York: Penguin.

Fausto-Sterling, A. (2005). The bare bones of sex: Part 1— Sex and gender. Signs: Journal of Women in Culture and Society, 30(2), 1491–1527. GLAAD. (2015). http://www.glaad.org/transgender. Gould, L. (2009). Privilege and the construction of crime. In The Criminology and Criminal Justice Collective of Northern Arizona University (Eds.), Investigating ­difference: Human and cultural relations in criminal justice (2nd ed., pp. 23–38). Upper Saddle River, NJ: Prentice Hall. Johnson, A. (2012). Privilege as paradox. In P. Rothenberg (Ed.), White privilege: Essential readings on the other side of racism (4th ed.). New Jersey: Worth Publishers. Ken, I. (2007). Race–class–gender theory: An image(ry) problem. Gender Issues, 24(2), 1–20. May, V. (2015). Pursuing intersectionality, unsettling dominant imaginaries. New York: Routledge. McIntosh, P. (1988). White privilege: Unpacking the invisible knapsack. Peace and Freedom Magazine, pp. 10–12. McIntosh, P. (1998). White privilege, color and crime: A personal account. In C. Mann & M. Zatz (Eds.), Images of color, images of crime: Readings. Los Angeles, CA: Roxbury. Miles, R. (1989). Racism. London: Routledge Nadal, K. L. (2013). That’s so gay! Microaggressions and the lesbian, gay, bisexual, and transgender community. American Psychological Association. Nash, J. (2008). Re-thinking intersectionality. Feminist Review, 89, 1–15. Omi, M., & Winant, H. (1994). Racial formation in the United States: From 1960s to the 1990s (2nd ed.). New York: Routledge. Smith, W. A., Allen, W. R., & Danley, L. L. (2007). “Assume the position… You fit the description”: Psychosocial experiences and racial battle fatigue among African American male college students. American Behavioral Scientist, 51(4), 551–578.

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Sue, D. W. (2010a). Microaggressions in everyday life: Race, gender, and sexual orientation. Hoboken, NJ: Wiley. Sue, D. W. (Ed.). (2010b). Microaggressions and marginality: Manifestation, dynamics, and impact. Hoboken, NJ: Wiley. Truth, S. (1851). Ain’t I a Woman? http://www.sojournertruth. org/Library/Speeches/AintIAWoman.htm. Webster, Y. (1992). The racialization of America. New York: St. Martin’s Press. Wells, C. (2013). Microaggressions in the context of academic communities. Seattle Journal for Social Justice, 12, 319.

Williams, L. (2002). It’s the little things: Everyday interactions that anger, annoy, and divide the races. Orlando, FL: Harcourt. Williams, T. K. (1997) Race-ing and being raced: The critical interrogation of “passing”. Amerasia Journal, 23(1), 61–65. Yosso, T., Smith, W., Ceja, M., & Solórzano, D. (2009). Critical race theory, racial microaggressions, and campus racial climate for Latina/o undergraduates. Harvard Educational Review, 79(4), 659–691.

4

▪ ▪ ▪ ▪ ▪

Talking Through Our Differences Intercultural and Interpersonal Communication Marianne Nielsen and Rebecca Maniglia

Chapter Objectives • Describe the advantages of competent communication. • Provide an analysis of criminal justice interactions and suggest improvements that are more sensitive to difference. • Explain the impact of diversity on communication, especially gender, culture, and power/status differences. • Explain how key areas of nonverbal communication are impacted by cultural and gender differences. • Explain the importance of situational context in communication. • Describe how these three key areas are challenges to communication: stereotyping, ethnocentrism, and naming. • Explain the three options that criminal justice organizations have in managing diversity in the workplace and which is the most effective. While there are high levels of diversity in the criminal justice offender population, criminal justice practitioners are largely members of privileged groups. On average, they are white, male, physically abled, and middle class. This gap between the cultural experiences of its workers and its clientele, as well as the power differential that exists between the two, means that intercultural communication skills take on a special significance when providing justice services. Criminal justice practitioners nevertheless often feel uncertainty and anxiety in communicating with strangers, particularly when those exchanges cross the boundaries of diversity such as race or gender. However, as they exercise power over the lives of others, they have an added responsibility in learning to deal effectively with their own negative emotions. They must ensure they have the skills to communicate effectively with those in the diverse systems in which they serve. They must communicate with competence to ensure that there can be real understanding between themselves and their clients. While this chapter cannot provide “the” answer for effectively and appropriately handling all intercultural interactions, it provides useful information about the knowledge and skills needed to become a competent intercultural communicator.

The Advantages of Communication Competence Communication is the process that occurs between two or more individuals who use words and/or nonverbal signals to construct the reality of their interaction and to attach meaning to the messages they transmit (Gudykunst, 2004). Competent communication is about developing a shared reality or negotiating “mutual meanings, rules and outcomes that are 35

36   Part One  •  Framing Difference

‘positive’” (Gudykunst & Nishida, 1989, p. 36). It has been said that communication is primarily about minimizing misunderstanding (Gudykunst, 2004), but communication is seldom perfect. Both partners in the interaction bring to it their individual personalities, life experiences, and social and cultural roles. This means they may misinterpret the meaning of the other’s words or actions (Gudykunst, 2004). These misunderstandings can be the result of racial or ethnic differences, differences related to gender or socioeconomic class, or other factors of identity. Competent communication has many rewards. First, competent communicators learn about someone else’s cultural concepts and gain insight into a world that may be very different from their own. For example, the Cree Indians, one of the largest indigenous groups in Canada, have no word for or concept of “guilt.” What does this suggest about their view of crime? What might be the repercussions of this when they appear as the accused in a court of law? Similarly, the Cree have no gender pronouns. What might be the impact of this linguistic difference if a Cree is asked to give ­testimony about the identity of an offender? Competent communicators are able to identify these differences in cultural experience and to adjust their communication to account for them. Second, competent communicators gain a new perspective because of their cultural experiences. For example, if the Japanese have many words for rice because of its centrality to their diet and daily life, what might this say about Americans who have many words for guns? Similarly, what does it mean that Americans have gender pronouns when the Cree do not? Do Americans attach status and prestige to gender in ways that differ from other cultures? If so, how does this affect the way women are treated in the criminal justice system? Competent communicators are able to better understand their own cultures by learning about those of others. Third, competent communicators are more likely to make decisions that take into account the perspectives of all parties to the interaction. Actions taken by a police officer, for example, in handling a domestic violence dispute will be more likely to calm the situation than inflame it if the police officer has some knowledge of the culturally defined domestic roles of the spouses, their attitude toward authority figures, and their normal tone of verbal and nonverbal communication. Competent communicators are better able to appropriately handle intercultural situations in which they find themselves.

Examples of Communication Competence in Criminal Justice The ability to communicate effectively has important implications for those working in the criminal justice system. For instance, law enforcement officers have received training on intercultural communication since the 1960s but in more recent years this training has been re-examined to ensure that it effectively prepares officers for ­dealing with the cultural changes in the communities they serve (Hennessey et al., 2001). These issues are especially relevant considering the recent high-profile cases involving police use of force in minority communities. Incidents such as the death of Freddie Gray, an African-American man in Baltimore who died in the back of a police van during transport, and the shooting of African-American 12-year-old Tamir Rice in Cleveland by two white police officers have forced localities to re-evaluate critical police–community relations; intercultural communication becomes a necessity if changes are to be made to decrease the minority mistrust of police that plague these environments. Researchers have created models to assist law enforcement in understanding the differences in communication across cultures and to understand their own levels of cultural understanding. These types of models, one of which is explored in more detail in the textbox on page 37, offer great insight into how intercultural communication affects the delivery of effective police services.

Chapter 4  •  Talking Through Our Differences   37



Law Enforcement and Development Model of Intercultural Sensitivity (DMIS) Marianne Nielsen and Rebecca Maniglia One model that has been used with law enforcement is the Development Model of Intercultural Sensitivity (DMIS). This model has six stages, the first three of which fall under the umbrella of ethnocentric stages and the last three fall under the umbrella of ethnorelative stages. As the names imply, the process of development is inherently about how one views their own cultural experience in relation to the cultural experiences of others. In the ethnocentric stages, the individual believes their ­culture is somehow central to reality, while in the ethnorelative stages the individual is more able to understand that their culture exists in relationship to other cultures (Bennett, 2002). Since this model has been applied to police training as a way of assisting law enforcement officers in learning how to better appreciate and understand the communities in which they work, it is used here as an example of how intercultural communication can directly affect job performance in criminal justice. In the first stage, the individual is in denial and only able to understand their own culture as relevant and considers anything outside of that culture as “other” or “immigrant.” Police who are in this stage will be surprised that they would be considered racist because they have never even considered the impact of culture on communication or interactions. The second and third stages of the DMIS are defense and minimization during which one might express ideas of being color-blind or not seeing cultural difference. Officers in these stages often think they are tolerant of culture, but are drawn to use static systems of classification such as personality trait matrixes that place people in types rather than understanding the complex ways culture interacts with identity (Bennett, 2002).

When an individual moves into an ethnorelative understanding of cultural competence, the process begins with acceptance (stage four) during which they begin to understand that their own cultural experience is just one of many and must be understood in the context of others. For a police officer, this is the stage when there is recognition that the communities one serves may embrace cultural ideas that vary from one’s own. An officer will start to seek information about the community and attempt to gain insights into ways it may be different from his or her own experience. In the fifth stage of the DMIS, the individual will move into ­adaptation and allow this new knowledge to actually affect their own behavior. In this stage, officers will “empathize with their clients” and “behave in ways that are familiar and acceptable to their clientele” (Bennett, 2002, p. 37). Lastly, in the final stage, integration, the individual will understand their own experience only in its connection to other multi-varied cultures, all interacting all the time. In this stage, an officer is able to regularly and effectively interact with varied cultures not only in a way that appreciates them, but in a way that also informs him or her about their own cultural identity. This individual would have then achieved cultural competence and should be able to effectively and appropriately communicate interculturally (Bennett, 2002). Reference Bennett, M. J. (2002). In the wake of September 11. In W. R. Leenen (Ed.), Enhancing intercultural competence in police organizations (pp. 23–42). Berlin, Germany: Waxman.

Even in this one example (detailed in the textbox above), then, it becomes clear how communication competence and specifically intercultural communication can improve the very function of criminal justice processes. However, the efforts not only are in law enforcement but have also been developed to address issues specific to courtroom and the legal profession, another key part of the criminal justice system. For instance, the American Bar Association has developed a cultural competence curriculum designed to train legal practitioners involved in criminal justice to be able to effectively address racial and ethnic disparities and inequalities in the system by mastering cultural understanding (ABA, 2010). This specific curriculum includes such issues as intercultural communication and general cultural competence to ensure that those working in the legal portions of the system appreciate the role of culture in language, nonverbal communication, respect for authority, and an understanding of the law. This type of training may assist attorneys in achieving better cross-cultural communication with their clients while also helping to address issues of racial imbalance in jury selection and sentencing.

38   Part One  •  Framing Difference

Developing Communication Competence In order for criminal justice personnel to achieve intercultural communication competence, it is important to have knowledge about certain key influences on communication, including the impact of all forms of diversity on communication, the power of nonverbal communication, and the importance of the situational context. The Impact of Diversity on Communication

There are many kinds of diversity that can influence communication. In this section, we will look at just three, gender, culture, and power/status, as these are three key issues in the criminal justice system. Gender is the greatest predictor of criminal activity with men and boys committing an overwhelming majority of crime in every category. Therefore, cross-gender communication is necessary if the needs of women and girls as offenders are to be addressed appropriately. As mentioned earlier, the majority of practitioners in the criminal justice system are white while minorities represent a large percentage of its offenders. Cross-cultural communication ensures equity across the system for those of all cultural backgrounds. Finally, criminal justice is a system rife with issues of power; thus, learning the impact of power on communication is essential. While these three are among the most important for criminal justice personnel, it should be recognized that many kinds of diversity influence communication, including race, education, physical abilities, sexual orientation or gender identity, and age. While we will look at each of these three separately, it is critical to understand that all categories of diversity intersect in the lived experience of any individual. We do not experience our gender in isolation from our racial or ethnic background, just as we do not experience our power/status as separate from our age or physical abilities. Cultural identity theory (CIT) posits that all of us have multiple identities (race, gender, class, etc.) that are constantly being redefined and understood through our interactions with others. It is this process that makes communication competence so important as “cultural identities are negotiated, co-created, reinforced and challenged through communication” (Collier, 2000, in Orbe & Harris 2015, p. 31). In other words, a person’s very sense of self is multidimensional and shaped by the intersections between the categories they use to define themselves. This process of self-definition is happening through communication and experiences with others. For example, as Chapters 2 and 3 highlight, the self-identity of an African-American woman who is bisexual is not created by one area of diversity alone, but through the intersection of all three areas (race, gender, and sexuality), and her process of self-identification is shaped and refined by her interactions and communication with others. Because cultural identity is formed through communication and interaction, it should also be noted that it is ever changing and therefore can never be considered static or set. Therefore, even as one may talk about the impact of their gender on their verbal communication or their culture on their nonverbal communication patterns, these should never be considered absolute or static as they are always being redefined through interaction. So as cultures change and develop, the individuals within them will also shift their understanding of self-identity. Cultures then are not something people belong to, but something people construct in relationship to one another (Dahl, 2014). Gender  Communication research across settings and populations has found that there appear to be communication differences based on gender identity. These might include items such as:

Men show a greater task orientation in groups, women a greater social-emotional orientation; men emerge as leaders in initially leaderless groups; men interrupt more; women pay more attention to the face needs of their conversational partners; women talk more personally with their close friends. (Aries, 1996, p. 189)



Chapter 4  •  Talking Through Our Differences   39

However, the identification of these general differences should not be understood to mean that all women communicate in one way and all men communicate in another. The truth is that these findings are generalities that seemed to connect to gender identity but that are also influences through intersections between an individual’s gender and other aspects of their identity and culture. It is also important to understand that the findings based on gender identity are distinct from biological sex. A transgender individual with male genitalia but who considers herself a woman in terms of gender identity may well find herself communicating in ways that would be considered feminine. Thus, when exploring the ties between communication styles and gender, one must be careful to attach it to gender identity and not to biology (for further discussion of gender identity and sexuality, see Chapters 6 and 7). Further, gender differences in communication must be understood within the context of the role of gender in society as a whole. In a society where masculinity is still largely associated with aggression, rationality, and emotional control, it makes sense that men would express less emotion in their communication style or be more apt to take leadership roles (Wood, 2012). Similarly, Aries and others have asserted that “gender differences cannot be understood without putting them in the context of gender inequalities in society” (Aries, 1996, p. 195). Some members of American society still perceive and treat women as having a lower status than men, and ­dominant–subordinate status can have a great deal of influence on communication. Interestingly, when men and women are given the same status in society, few gender differences in communication emerge and some of the ones that remain may have positive consequences, such as female police officers and correctional officers being more willing than male officers to use reason and to talk things through with offenders. This sometimes leads to the de-escalation of situations as it is less likely to provoke hostilities and more likely to diffuse tensions and mediate conflict (Martin & Jurik, 2007). Verbal and nonverbal communication can be difficult to interpret. There are a wide array of variables that can influence an interaction, including the class and status of the partners, sexual orientation, age, ethnicity, and individual style, to name only a few. Situational factors such as the relationship between the partners, the setting, the topic, and the length of the interaction can also influence the degree to which gender differences have impact (Aries, 1996). For instance, officers responding to domestic violence calls attempting to interpret the gender dynamics of an individual situation will have to consider the role of gender on the individual relationship between the players while also assessing their own personal pre-established assumptions about gender. How do the cultural gender roles of the people involved, the length and structure of the relationship involved, and the power dynamics within the home affect the situation? All these elements must be considered when attempting to effectively understand the role of gender on communication. There are cultural variations in the proper tone of conversation, the kind of touch allowed (if any), and the appropriate personal distance between men and women. There are also cultural differences in the level of appropriate intimacy in the topic and in the expectations of response. These differences could lead to misunderstandings or even to accusations of sexual harassment if the other sees one of the partners in the interaction as “stepping over the line” (Cushner & Brislin, 1996). In order to deal competently with communication differences related to gender, people need to learn as much as possible about the gendered expectations of the groups with which they interact. They also need to learn to recognize indicators of power differences by gender and understand that they have evolved as the result of group history. Communicators should not take such changes personally and should always keep their interactions respectful and professional.

40    Part One  •  Framing Difference

Mentoring of Women in Law Enforcement Dennis Catlin A Bureau of Justice Statistics study reports that in 2007 the number of female police officers in local police departments was 12% (Langton, 2010). Cordner and Cordner (2011) similarly report that according to the Uniform Crime Report women composed 11.9% of sworn police officers in 2009. In 2013, the level was at 12% (BJS, May 2015). Mentoring is crucial for addressing obstacles related to the recruitment, retention, and promotion of female police officers (International Association of Chiefs of Police, 1998; National Center for Women & Policing, n.d.). Does Mentoring Make a Difference for Women in Law Enforcement? In the general organizational literature, it is “clear that those individuals with mentoring relationships have a definite advantage over those lacking such relationships” (Ragins, 1999, p. 347). Further, mentoring is essential and crucial for women in reaching the top ranks of their organizations both in the criminal justice system and in every major institution in the United States (Burke & McKeen, 2009; Noe, 1988; Ragins, 1989, 1999; Schipani, Dworkin, Kwolek-Folland, & Maurer, 2009). While it appears that women clearly benefit from mentoring, some past research identifies barriers to women mentees when seeking a mentor. These include inexperience in assertive roles initiating mentoring relationships, fear that approaching a male mentor would be interpreted as a sexual approach by either the male mentor or other members of the organization, and that male mentors were more comfortable with male mentees initiating the relationship (Levesque, O’Neill, Nelson, & Dumas, 2008; Ragins, 1989; Ragins & Cotton, 1991). Ragins (1989) found that “Female mentors are scarce, and may not be able to afford the time or risks associated with mentoring a female protégé” (p. 12). Women with previous experience as a protégé were more successful in finding both male and female mentors (Ragins & Cotton, 1991). Research suggests that those who engage in mentoring relationships are advantaged (Ragins, 1999) and that mentoring relationships are crucial to job and life ­satisfaction (Ragins, 1999; Wanberg, Welsh, & Hezlett, 2003). For women planning or already in law enforcement careers, establishing and developing a mentor relationship is important. Given the nature of our current organizational environments, establishing a single long-term formal mentoring relationship may not be realistic (Baugh & Fagenson-Eland, 2005). There are multiple possibilities for types of mentoring relationships that can serve the needs of women. There are formal and informal mentoring relationships, and these can occur inside the law enforcement agency or external to the agency. The

possible combinations of these relationships are formal/ internal, formal/external, informal/internal, informal/ external, and each provides different benefits. Typically in a formal mentor/mentee setting, a third party makes the match between the mentor and the protégé. Usually this is a formal–internal mentoring relationship within the protégé’s agency. This is the typical image of mentoring. One example of this is the Charlotte-Mecklenburg Police Department’s Women’s Network in Charlotte, NC (Maglione, 2002) where committees of senior female police officers ensure that new female officers are matched with mentors. This kind of formal–internal mentor relationship is advan­ tageous because the mentors are familiar with the power structures and culture of the organization and can help mentees navigate situations and structures. These types of programs will occur in larger agencies due to needs for more staff, and the reality is that most law enforcement agencies are too small to support a formal– internal mentoring effort. Larger agencies may find it difficult to establish and maintain formal mentoring programs, ­particularly given the pressures the economic conditions placed on resource allocation in law enforce­ ment ­agencies. In a survey of 800 law enforcement agencies, the International Association of Chiefs of Police (1998) found that only 13% of the agencies had a mentoring ­program and larger agencies accounted for many of those programs. In addition to the kinds of internal mentoring, there may be formalized mentoring programs that are outside the agency. Typically a third party that is external to the agency facilitates the mentor and the matching. Usually the mentor and mentee are from different organization/agencies. For example, this kind of mentor/ mentee relationship is offered to members of the National Association of Women Law Enforcement Executive (NAWLEE) (http://www.nawlee.com/ mentoring_program/mentoring_program.html). The Mentoring Committee of NAWLEE does the pairing. This program is highly structured and has policies, guidelines, and follow-up practices by the Mentoring Committee (Catlin, 2013). Unlike formal mentoring, informal mentoring ­relationships do not involve a third party that initiates or maintains the relationship. Either the protégé or the ­mentor typically initiates it. There are two possible alternatives, which include informal–internal and informal– external mentoring relationships. Informal–internal mentoring relationships are composed of members of the same organization but who may or may not be in the same chain of command. These relationships may be established when someone superior to the protégé recognizes a professional or when the protégé

Chapter 4  •  Talking Through Our Differences   41



identifies a superior who shares a common set of values or interests or may be well respected within the organization. Additionally, some relationships are between a mentor and protégé who are peers (Catlin, 2013). In the informal–external model, relationships occur outside of the organization and may happen spontaneously and naturally. Women police officers have formed women police associations by banding together. These associations often occur within geographical regions (i.e., national, state, region, county, or city) and are a rich source of informal–external mentoring relationships. Mentoring can be an advantageous option for women in law enforcement careers. Taking advantage of any or all of these multi-dimensional mentoring options provides the best opportunity for job satisfaction and, if desired, advancement and promotion (Catlin, 2013). References Baugh, S. G., & Fagenson-Eland, E. A. (2005). Boundaryless mentoring: An exploratory study of the functions provided by internal versus external organizational mentors. Journal of Applied Social Psychology, 35(5), 939–955. Bureau of Justice Statistics. (May 2015). Local police departments, 2013: Personnel, policies and practices—Executive summary. Washington, DC: U.S. Department of Justice. Burke, R. J., & McKeen, C. A. (2009). Mentoring in organizations: Implications for women. Journal of Business Ethics, 9(4/5), 317–332. Catlin, D. (2013). The mentoring of women in policing: A review of the literature, recommendations for future research, and relevant mentoring strategies for women in policing. Law Enforcement Executive Forum Journal, 3(13). Cordner, G., & Cordner, A. (2011). Stuck on a plateau? Obstacles to recruitment, selection and retention of women police. Police Quarterly, 14(3), 207–222. International Association of Chiefs of Police. (1998). The future of women in policing: Mandates for action. Retrieved from

http://www.theiacp.org/PublicationsGuides/Topicalindex/ tabid/216/Default.aspx?id=87&v=1 Langton, L. (2010). Women in law enforcement, 1987–2008. Washington, DC: Bureau of Justice Statistics. Retrieved from http://bjs.ojp.usdoj.gov/content/pub/pdf/wle8708.pdf Levesque, L. L., O’Neill, R. M., Nelson, T., & Dumas, C. (2008). Sex differences in the perceived importance of mentoring functions. Career Development International, 10(6/7), 429–443. Maglione, R. (2002). Recruiting, retraining, and promoting: The success of the Charlotte-Mecklenburg Police Department’s Women’s Network. Police Chief, 69(3), 19–24. National Center for Women & Policing. (n.d.) Recruiting and retaining women: A self-assessment guide for law enforcement. National Criminal Justice Reference Service. Retrieved from www.ncjrs.gov/pdffiles1/ bja/188157.pdf. Noe, R. A. (1988). Women and mentoring: A review and research agenda. The Academy of Management Review, 13(1), 65–78. Ragins, R. B. (1989). Barriers to mentoring: A female manager’s dilemma. Human Relations, 42(1), 1–22. Ragins, R. B. (1999) Gender and mentoring relationships: A review and research agenda for the next decade. In G. N. Powell (Ed.), Handbook of gender and work (pp. 347–370). Thousand Oaks, CA: Sage Publications. Ragins, R. B., & Cotton, J. L. (1991). Easier said than done: Gender differences in perceived barriers to gaining a mentor. Academy of Management Journal, 34(4), 939–951. Schipani, C. A., Dworkin, T. M., Kwolek-Folland, A., & Maurer, V. G. (2009). Pathway for women to obtain positions of organizational leadership: The significance of mentoring and networking. Duke Journal of Gender Law & Policy, 16(89), 89–136. Wanberg, C. R., Welsh, E. T., & Hezlett, S. A. (2003). Mentoring research: A review and dynamic process model. Research in Personnel and Human Resources Management, 22(1), 39–124.

Individuals are affected by individual categories of diversity, such as gender, but they are also influenced by the cultural settings in which they live and work. Cultures have specific frameworks that shape the way people in them communicate. To be a competent communicator, then, it is important that you understand the ways the general structures of various cultures will influence communication. While various typologies have been developed to describe cultural structures that influence communication, probably the best known is Hofstede’s (2005). Hofstede and Hofstede differentiate cultures by their individualism versus their collectivism, their high versus low power distance, their uncertainty acceptance versus avoidance, and their approach to femininity and masculinity. As Gudykunst and Nishida (1989, pp. 21–22) explain, Culture 

Individualistic cultures emphasize the individual’s goals while collectivistic cultures stress that group goals have precedent over individual goals. High power-distance cultures value inequality, with everyone having a ‘rightful place’ and the hierarchy reflects existential inequality. Low power-distance cultures, in contrast, value equality. Uncertainty avoidance involves the lack of tolerance for uncertainty and ambiguity. Cultures high in uncertainty avoidance have

42   Part One  •  Framing Difference

high levels of anxiety, a great need for formal rules, and a low tolerance for groups that behave in a deviant manner. Masculinity involves valuing things, money, assertiveness and unequal sex roles. Cultures where people, quality of life, nurturance, and equal sex roles prevail, on the other hand, are feminine.

These basic ideas can be useful in understanding the role cultural identity can have in communication. For example, the United States is an extreme version of an individualistic culture. As Andersen (2010) explains, “Americans are extreme individualists, take individualism for granted, and are blind to its impact” (p. 300). In collectivist cultures such as China and Korea, people live and work closely together and so nonverbal communication is more easily understood between its members. In an individualistic culture, members place a high value on individual rights and identity. Thus, communication in the United States is apt to be more individualized and emotionally expressive than that of people living in a more collective culture (Andersen, 2010). Similarly in high power-distance countries such as India and Saudi Arabia, authority is respected and subordinates understand their role and often do not appear to be willing to question authority. Thus, in these cultures, those in less powerful positions may be prone to not ask questions or seek clarification from authority figures. In a low powerdistance culture, like the United States, this kind of communication style might be misinterpreted as showing a lack of initiative rather than a respect for authority (Andersen, 2010). Another important typology differentiates between high-context and ­low-context cultures (Hall, 1976). In high-context cultures such as most collectivist cultures, much of the meaning is implicit and is communicated by the context and nonverbal nuances or signals. You must have a sense of the context of the culture to understand these nonverbal messages. In low-context cultures, meaning is given directly, with little reliance on contextual or nonverbal signals. Generally speaking, African American, Native American, and Latino/a within the United States are high-context subcultures while European-based cultures (i.e., the dominant white culture) are low context. This can be an important source of intercultural miscommunication. As most criminal justice professionals are trained to be low context in their communication, they may be unable to understand or may misinterpret verbal or nonverbal communication signals that require a more nuanced and sophisticated understanding of context. Police officers, as discussed above, called to a domestic violence crime must adjust their communication to the gender and culture of the participants and witnesses in order to not escalate the situation by misreading the context. Power and Status Differences  While distinct in some ways, power and status is often linked to other categories of differences. For example, as indicated above, when assessing a domestic violence scene, officers must seek to understand the power dynamics inherent in the gender roles and in the cultural expectations of the participants. They must do so while also recognizing that they, as law enforcement representatives, enter the scene from a position of power and authority (regardless of whether that authority is recognized by the other participants). Therefore, to establish effective communication, officers must understand the role of power both as it exists independently of other factors and as it is influenced by other factors such as gender or culture. When examining the role of power, it is also critical to understand that membership in a subordinate culture sometimes means individuals have adopted or even been taught specialized ways of communication. These group techniques are often based on past interactions with or even assumptions about members of the dominant cultural group. For instance, Orbe (1998) present a long list of these, including diverting communication away from potentially dangerous topics, remaining silent when offensive statements are made, downplaying or ignoring differences, ridiculing self, confronting,



Chapter 4  •  Talking Through Our Differences   43

educating others, imposing a psychological distance through verbal and nonverbal strategies, and avoiding communication altogether. The individual communication strategy adopted will largely depend on the perception of their power as a member of the subordinate group (Orbe, 1998, pp. 16–17). If one is approaching the situation from a position of authority based on their membership in the dominant culture, understanding these specialized ways of communication is essential. The recent racial conflicts between law enforcement and minority communities may demonstrate some of these group communication strategies that are based on status. Minority individuals may adopt specific communication strategies with law enforcement, especially white officers, such as not giving out information or “snitching,” based on their subordinate cultural position. Officers may be frustrated by these approaches and seek to use their own authority to break through them, often leading to miscommunication and event hostility. It is this context of miscommunication that has perhaps contributed to recent movements to better address negative relationships between law enforcement and minority communities. Historical patterns of downplaying difference or not confronting the offensive behavior of authority figures may be now giving way to new efforts to educate society about racial differences in policing enforcement and in some cases even to confrontation. These shifts have been controversial in the culture at large because they represent a shift in the communication style of those who have historically been subordinate in American society toward the dominant group. The Importance of Nonverbal Communication

Peter Andersen (2010) asserts that “Culture is mainly an unspoken, nonverbal phenomenon because most aspects of one’s culture are learned through observation and imitation rather than by explicit verbal instruction or expression” (p. 294). This means that to become a culturally competent communicator one must pay attention to nonverbal communication just as much as to verbal communication. This can be a complicated process because, as Andersen says, most nonverbal communication is also “subtle, multi-dimensional, spontaneous” and “yet more powerful and more ambiguous than spoken language” (2010, p. 294). Characteristics of nonverbal communication will vary across cultures and between groups, so one must learn to carefully interpret items such as tone, placement of emphasis, volume, pitch, quality (e.g., clear versus slurring), and duration (Henderson, 1994). Nonverbal communication is, at its heart, about learning to pay attention to the nonverbal messages we send, intentionally or not, and how these messages are interpreted by others (Knapp, Hall, & Horgan, 2014), and this is of special importance in the criminal justice system. Generally, nonverbal messages do not exist on their own. They are intricately related to our verbal communication. When an individual speaks, the nonverbal messages they send can reinforce what is being said verbally, conflict with what is being said, or can even substitute for the words being said (Knapp et al., 2014). For instance, if suspects are verbally telling a law enforcement officer that they were not involved in a crime being investigated, an officer might not believe their verbal communication if they are also giving nonverbal clues that indicate they are nervous or uncomfortable. Similarly, other studies have found that offenders can identify nonverbal behavior that they associate with the likelihood a person will not fight back if victimized (Gunns, Johnson, & Hudson, 2002) and nonverbal communication has been studied as a factor in victim selection and response in rape cases (Myers, Templer, & Brown, 1994). Finally, there has also been research into the role of how nonverbal communication by a judge in a case may influence the outcome, and how nonverbal messages sent by various players in the courtroom may affect juries (Burnett & Badzinski, 2000). Therefore, paying attention to nonverbal messages is a critical part of communication competence in criminal justice.

44   Part One  •  Framing Difference

In general, to understand nonverbal communication one must be aware of several key areas: posture, touching, facial expressions, eye behavior, silence and verbal sounds, gestures and movements, personal space, movement while speaking, and symbols. Posture in a conversation can be used to determine relational comfort or even elements of power. As discussed earlier, some cultures are high-contact cultures and others are low-contact cultures and as such the posture of the people involved in a conversation can be misinterpreted when communication is across cultures. Posture also can be used to demonstrate mood or feelings that may or may not be expressed verbally (i.e., when someone has hunched shoulders, they may be feeling sad or isolated) (Knapp et al., 2014). Touching can also be viewed differently by low- and high-contact cultures, and can sometimes be self-focused (touching one’s head when one is thinking) or other focused (laying one’s hand on the other’s arm in a sign of support) (Knapp et al., 2014). Touching can also include kissing, hugging, embracing, hand shaking, and general touch. Touching not only varies by culture but can also vary by the gender or status of the persons involved, the timing of the interaction, and the private or public location of the interaction (Henderson, 1994). Facial expressions offer particular nonverbal cues that support or contradict verbal communication. They can also be used to show signs of support for the other party in a conversation such as smiling to encourage communication or frowning to show disapproval of verbal comments (Knapp et al., 2014). Eye behavior is the nonverbal communication of “where we look, when we look and how long we look during an interaction” (Knapp et al., 2014, p. 13). Standards about eye contact can vary greatly by culture. Some cultures such as American and Italian consider extended direct eye contact as a sign of honesty while others such as many Native American cultures see it as disrespectful (Henderson, 1994). Silence and verbal sounds also play a key role in nonverbal communication. Some cultures are known for loud, expressive dialogues or for the use of specific pitch of voice or duration of verbal sounds (Knapp et al., 2014). Other cultures are taught to wait and leave a space after another person has stopped talking. In a meeting between individuals from various cultures, we might observe cultural clashes or misunderstandings with some populations feeling they have no room to present their concerns because others are imposing their point of view through aggressive communication. Gestures and movements are among the most important aspects of nonverbal communication. There are over 100,000 different gestures used around the world, and most have meanings that vary from culture to culture. A simple example might be the head nod used in the United States to signify agreement. In Greece, depending on the exact movement, a nod might actually mean disagreement (Henderson, 1994). Personal space or “zones of territory” also vary across cultures, class, and gender. Generally, if a person invades the space of another, it may cause discomfort; however, people in some cultures prefer to stand closer than others. High-contact cultures, as stated before, are more likely to maintain closer physical contact with one another than would be true of individuals in low-contact cultures (Henderson, 1994). Movement while speaking can also vary. In some cultures, people may walk away and return in order to emphasize their agreement with a verbal statement (Henderson, 1994). In other cultures, individuals talking to authority figures are expected to stand still and upright. In the United States, for instance, those speaking with law enforcement officers must be careful about how they move during a police discussion or they could nonverbally communicate a threat or disrespect for authority. Symbols are a special category of nonverbal communication. Uniforms, badges, religious emblems, head coverings, and jewelry are all forms of symbols that send



Chapter 4  •  Talking Through Our Differences   45

nonverbal messages. Groups have symbols to indicate special nonverbal meanings to their members, which can draw groups together. In the criminal justice system, gang member identification often relies on the nonverbal messages of symbols such as the color and style of clothing. Competent communicators must learn to appropriately interpret verbal and nonverbal messages and use them as a way of supplementing verbal communication. Situational Context

To understand each other, partners in an interaction must know something about social, cultural, and personal context. Without context, “behavior is just noise” (Cushner & Brislin, 1996, p. 13). Participants in an interaction operate within the context of their own individual life experience, status, motivations, culture, and group history. This means that a wide range of factors can affect an interaction, including the physical and emotional setting in which the interaction occurs (i.e., their number, attractiveness, prototypically, personality, temperament, and mood) (Giles & Franklyn-Stokes, 1989). The historical relations between the groups the participants represent can also matter as can personal status or power. If one group is or has been dominant such as American men and the other is subordinate such as American women, power and status can influence the context of the interaction. The participants’ knowledge of the language is also an important factor. It may be taken for granted that both parties understand the meanings of the words, when they may not. Words and concepts can have subtly different, slightly different, or even drastically different meanings (Cushner & Brislin, 1996, p. 289). For example a “date” with a prostitute is not the same as a “date” to the movies, and “snow” as in precipitation differs from “snow” as in cocaine. The nonverbal communication that accompanies words may also completely change their meaning. For example, “mother” can change meaning depending on the tone of voice or hand gesture that accompanies it. While a nonnative English speaker may possess a working knowledge of the language, there is a chance that they are not familiar with the nuances of English words and expressions. The English phrase “see you later,” for example, has led to accusations of American insincerity, since it does not necessarily express the intent to actually see you later but is simply a ritual parting phrase (Cushner & Brislin, 1996). The purpose of the interaction can also affect communication. Some cultures have high regard for the ability to debate, while others use silence to communicate respect. Some have a great enjoyment of small talk, while some have very little use for it. Some use talk as a form of social control, while others use it as a means of establishing affiliations. Even knowing how to agree or disagree may be an important skill. What each participant considers appropriate behavior or presentation of self is also important (Henderson, 1994). This may include greetings (e.g., handshakes versus bowing), showing affection, covering the head or legs, the formality or informality of dress, the removal of shoes on entering a room, how to sit “properly,” how to criticize, how to give and receive compliments, and recognizing symbols of marriage ( jewelry, hairstyle, clothing style). Thus, in each case, the specific context in which the communication is taking place is essential if one is to appropriately interpret both verbal and nonverbal communication.

Critical Challenges to Communication Beyond the topics already addressed, there are also many communication challenges that can specifically lead to misinterpretations or miscommunication, especially for members of the criminal justice system. Stereotyping, ethnocentrism, and naming will be examined in greater detail.

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Stereotyping

In order to psychologically process information and interactions, people learn to place others in abstract social categories based on easily identified characteristics (Gudykunst & Gumbs, 1989). In the United States, these characteristics might include skin color, sex, presence or absence of disabilities, and apparent age. Stereotypes can be based on other factors as well, such as accent, social class, and/or ethnicity (to name only a few). Stereotypes attribute certain behaviors to all members of a specific category, allowing for no individual variation, and can be both positive and negative. Positive stereotypes are often formed about in-groups, or “people like us,” such as our family, our friends, and members of our own class or race (i.e., they are all intelligent, talented, and kind), while negative stereotypes are formed about out-groups or people who are different from us (i.e., they are all criminal, lazy, or greedy) (Gudykunst & Gumbs, 1989). Who belongs to what group and the connected stereotypes are learned through jokes, ethnophaulisms (rude names), epithets (expressions), stories, and the media. As highlighted in Chapter 3, these expressions, jokes, and epithets are part of what Derald Wing Sue (2010, pp. 3, 7–11) terms “microaggressions.” Microaggressions are “the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, that communicate hostile, derogatory, or negative messages” (Sue, 2010, p. 3) that are aimed at recipients who are marginalized by our society. They occur in three forms: (1) microassaults that are beliefs of conscious acts that are intentionally expressed or acted out overtly or covertly, such as calling someone a “cripple” or other rude name; (2) microinsults that are unconscious interpersonal interactions and “environmental cues that communicate rudeness, insensitivity, slights and insults that demean a person’s racial, gender, sexual orientation or group identity and heritage” (Sue, 2010, p. 9), such as complimenting a third generation Korean on how good their English is; and (3) microinvalidations that are unconscious attacks on or denials of the reality of a marginalized person, such as stating that all Native Americans “should just forget the past and learn to be Americans.” Stereotypes in whatever form they are expressed are dangerous because they can prevent individuals from interacting with each other freely or may even cause them to be afraid of each other. People are often hesitant to seek meaningful information about people outside of their own group for fear that they will embarrass themselves by saying or doing something “stupid.” Yet, if we open this kind of meaningful communication, we may find that the “other” is an individual just like us, with more similarities than differences. The only way to understand this, however, is to see people as individuals, thus overcoming stereotypes and no longer seeing others as homogeneous members of some group of strangers. This requires true, meaningful communication. Stereotypes also have important implications for the criminal justice system. When criminality is attributed to certain groups of people who share an exterior characteristic like skin color, it prevents members of this group from being seen as individuals and can have serious consequences in how they are treated by system professionals. For example, in the United States, there is data to support the notion that police are more likely to perform stop-and-frisk interactions with African Americans than with individuals of other races (NYCLU, 2016). These kinds of disproportionate interactions based on race help reinforce stereotypes that African Americans are more likely to be criminals than those of other races. Without meaningful communication to break down those stereotypes, African Americans generally may experience discrimination in the criminal justice system based on the color of their skin. Ethnocentrism

Ethnocentrism is the tendency to judge others by the standards of one’s own group and to form a negative opinion as a result of such comparisons (Hofstede & Hofstede, 2005).



Chapter 4  •  Talking Through Our Differences   47

Often when individuals are faced with cultural practices that are different from their own, their reaction is to compare the practice unfavorably with the one they are familiar. This often leads them to choose to not participate and remove themselves from the new cultural experience. Not surprisingly, members of the other culture may interpret such negative responses as disrespectful. Similarly, if someone criticizes what is perceived to be American culture, Americans may react poorly, when in these situations it is best not to assume disrespect was intended (Argyle, 1982). In the United States, recent conflicts involving immigration law and language could be seen as environments in which ethnocentrism is possible. America does not have an official national language, but when political tensions about illegal immigration are high, there is a tendency for ethnocentrism to support the idea that true Americans should only speak English. The result is that anyone who speaks Spanish, for instance, is potentially an illegal immigrant, and therefore not American. This is often offensive to and perceived as a microaggression by Latino/as who are in the country legally and choose to speak Spanish. Similarly, these ethnocentric tendencies may discourage English-speaking Americans from becoming bilingual, a skill that actually could ease cultural tensions and increase meaningful intercultural communication. Naming

Meanings of names change over time and geography, and the process of naming is influenced by the power dynamics present. Oppressed groups that have historically been named by those in power may have strong feelings about labels and perceive them to be microaggressions. For instance, the labels “African American” and “black” are often used interchangeably, while they may have particular connotations to those in that racial group. Likewise, the term “Hispanic” is commonly used to group individuals whose roots may be in countries as varied as Mexico, Argentina, Puerto Rico, and Spain. The fact that members of the dominant group do not understand that the name they use for the minority group is offensive or limiting is a sign of the social distance between members of the minority and dominant groups. It symbolizes the traditional indifference of the dominant society to the concerns of minority groups (Herbst, 1997, p. 258). Names reveal the societal and individual attitudes about groups. They develop in response to the changing needs of their users and the evolving needs of the society in which they are used. Derogatory names are usually microaggressions and may hinder the political interests of groups, are ideologically loaded, mark boundaries between “us” and “them,” “keep people in their place,” and justify discrimination in the minds of the people discriminating (Herbst, 1997, pp. ix, 256). They are also used to chastise people who are perceived as straying from acceptable intercultural behavior or who are assimilating too far into the dominant society of which they are not a part (Herbst, 1997, p. x). In response to these power structures, members of named groups may also choose to use naming as a means of “talking back” to the dominant society, for example, using names like “gringo” or “cracker” for members of the privileged white race. Oppressed groups may also reclaim derogatory names for their own purposes such as the use of the term “queer” by the LGBTQ community.

Critical Skills for Competent Communications Competent communicators must have the motivation, knowledge, and skills to communicate effectively. Gudykunst (2003) describes six skills that are particularly important if practitioners are to achieve this goal: being mindful, tolerating ambiguity, managing anxiety, practicing empathy, adapting, and making accurate predictions and

48   Part One  •  Framing Difference

explanations (pp. 253–270). Listening, asking questions, and conflict management are subsumed among these skills, but because of their importance to criminal justice practitioners they are discussed here separately. Competent communicators must be mindful of their own communication and the larger process of communication rather than focusing on their feelings or on the outcome of a discussion. They must be open to new information and other peoples’ perspectives. Competent communicators must be able to tolerate ambiguity and be able to deal successfully with situations where a lot of information needed for effective communication is missing. They must be willing to not simply seek information that supports their previous conceptions, but must try to gather objective information. Competent communicators must be able to manage anxiety and control nonverbal messages and worrying thoughts. Interactions with unfamiliar people may feel uneasy, tense, and worrisome. You might fear that your self-concept might be damaged, that there will be negative behavioral consequences as a result of the interaction, or that you will be negatively evaluated by others. It is important to remember that while moderate anxiety may actually aid performance, too much or too little can hinder effective communication. Competent communicators must also practice empathy and try to take the other’s perspective and understand the other’s feelings and point of view. Empathy is not the same as sympathy where you try to imagine how you would feel in the other’s situation. Competent communicators must be able to adapt to different situational contexts and choose the verbal and nonverbal communication strategies that are most appropriate and effective. Competent communicators must be able to make accurate predictions and explanations for others’ behavior. This requires knowing that while all cultures have rules around what thoughts, feelings, and behavior are acceptable, these vary from group to group. Competent communicators do not assume the rules the other is using, but try to determine what specific rules are underlying the communication and use these to predict and explain behavior. Competent communicators must be able to listen, which involves taking in new information, checking it against what you already know, and selecting information that is meaningful (Gudykunst, 2003). It is a skill that does not come naturally and needs to be practiced. Active listening involves paying attention to our nonverbal body language, posture, and eye contact in interactions; the verbal and nonverbal ways we indicate to the other person that we are listening; and the ways we ensure that we understand the speaker. Active listening may not be appropriate for all groups, such as those that find asking questions disrespectful. Competent communicators must be able to manage conflict and to understand that various cultural groups handle conflict differently. For instance, collectivistic cultures are more likely to try to smooth over conflicts or avoid them altogether, while individualistic cultures may try to control the situation and/or treat it as a problem to be solved (Gudykunst & Nishida, 1989). Competent communicators must know the appropriate strategies for different groups.

Communication Competence in Criminal Justice Organizations Criminal justice organizations employ and must provide services to a diverse population. Potential difficulties in intercultural and interpersonal communication within criminal justice organizations are similar to those between individuals. Not surprisingly, the prejudices found in society at large will also be located in the workplace



Chapter 4  •  Talking Through Our Differences   49

(Henderson, 1994). Coworkers may act in a discriminatory manner and diversity issues can even be a barrier to hiring and promotion. Organizations have three options in managing diversity in the workforce: (1) they can ignore it, (2) they can recognize it but not use it, (3) they can use it as a rich resource for the provision of services. Organizations that ignore or resist diversity will find that they are denied the benefits of a fully productive diverse workforce. Further, discrimination is against the law, and companies that allow discrimination not only will lose offended customers and staff, but may well find themselves the target of lawsuits. Organizations that actively use their workforce diversity are more competitive, are more creative in problem solving, and have fewer internal conflicts (Tayeb, 1996). This means that effective intercultural communication skills are valuable not only for individuals, but also for their organizations. This is why criminal justice organizations are investing in initiatives, such as those described earlier that develop intercultural communication skills.

Questions for Review 1. Why is competent communication essential for criminal justice workers? 2. What are the rewards of competent communication? 3. What is the process within the DMIS? 4. How do gender and culture impact communication? Give examples. 5. How do power and status differences impact communication? Give an example. 6. How can these three differences (culture, gender, and power and status) be applied to criminal justice workers? 7. Why is nonverbal communication so important?

8.  How does situational context impact communication? Give an example. 9. Explain two of the three critical challenges to communication with examples. 10. What are the three kinds of microaggressions and what are their impacts for the broader construction of difference and for the individual experiencing them? 11.  Explain five of the six critical skills for communication with examples. 12. What are the three options that criminal justice organizations have for managing diversity? Which seems to be the most effective?

References American Bar Association, Criminal Justice Section. (2010). Building community trust: Improving crosscultural communication in the criminal justice system. Washington, DC: Author. Andersen, P. (2010). The basis of cultural differences in nonverbal communication. In L. Samovar, R. Porter, & E. McDaniel (Eds.), Intercultural communication: A reader (13th ed.). Boston, MA: Wadsworth. Argyle, M. (1982). Intercultural communication. In S. Bochner (Ed.), Cultures in contact (pp. 61–79). Oxford: Peragmon Press. Aries, E. (1996). Men and women in interaction. New York: Oxford University Press. Burnett, A., & Badzinski, D. (2000). An exploratory study of argument in the jury decision-making process. Communication Quarterly, 48(4), 380–396. Cushner, K., & Brislin, R. W. (1996). Intercultural interactions: A practical guide (2nd ed.). Thousand Oaks, CA: Sage Publications. Dahl, O. (2014). Is culture something we have or something we do? Journal of Intercultural Communication, 36, 1404–1634.

Giles, H., & Franklyn-Stokes, A. (1989). Communicator characteristics. In M. K. Asante & W. B. Gudykunst (Eds.), Handbook of international and intercultural communication (pp. 117–144). Newbury Park, CA: Sage Publications. Gudykunst, W. B. (2003). Bridging differences (4th ed.). Thousand Oaks, CA: Sage Publications. Gudykunst, W. B. (2004). Bridging differences (5th ed.). Thousand Oaks, CA: Sage Publications. Gudykunst, W., & Gumbs, L. (1989). Social cognition and intergroup communication. In M. K. Asante & W. B. Gudykunst (Eds.), Handbook of international and intercultural communication (pp. 204–222). Newbury Park, CA: Sage Publications. Gudykunst, W., & Nishida, T. (1989). Theoretical perspectives for studying intercultural communication. In M. K. Asante & W. B. Gudykunst (Eds.), Handbook of international and intercultural communication (pp. 17–46). Newbury Park, CA: Sage Publications. Gunns, R., Johnson, L., & Hudson, S. M. (2002). Victim selection and kinematics: A point-light investigation of vulnerability to attack. Journal of Nonverbal Behavior, 26(3), 129–158.

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Hall, E. T. (1976). Beyond culture. Garden City, NY: Anchor Henderson, G. (1994). Cultural diversity in the workplace. Westport, CT: Quorum Books. Hennessey, S. M., Hendricks, C., & Hendricks, J. (2001). “Cultural awareness and communication training: What works and what doesn’t.” Police Chief Journal, 68(11), 15–19. Herbst, P. H. (1997). The color of words. Yarmouth, MA: Intercultural Press. Hofstede, G., & Hofstede, G. J. (2005). Cultures and organizations (2nd ed.). New York: McGraw-Hill. Knapp, M., Hall, J. A., & Horgan, T. G. (2014). Nonverbal communication in human interaction (8th ed.). Boston, MA: Wadsworth. Martin, S. E., & Jurik, N. C. (2007). Doing justice, doing gender (2nd ed.). Thousand Oaks, CA: Sage Publications. Myers, M. B., Templer, D. I., & Brown R. (1994). Coping ability of women who become victims of rape. Journal of Consulting and Clinical Psychology, 52, 73–78.

New York Civil Liberties Union. (2016). “Stop and Frisk Data”. Retrieved from http://www.nyclu.org/content/ stop-and-frisk-data Orbe, M. (1998). Constructing co-cultural theory. Thousand Oaks: Sage. Orbe, M., & Harris, T. (2015). Inter-racial communication: Theory into practice. Thousand Oaks, CA: Sage Publications. Sue, D. W. (2010). Microaggressions, marginality, and oppression: An introduction. In D. W. Sue (Ed.), Microaggressions and marginality: Manifestations, dynamics and impact (pp. 3–22). Hoboken, NJ: Wiley. Tayeb, M. H. (1996). The management of a multicultural workforce. Chichester: Wiley. Wood, J. T. (2012). Gendered lives (10th ed.). Boston, MA: Wadsworth Publishing.

5

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Making Difference Work Within the Justice System Specialty Courts Christine Arazan

Chapter Objectives • Explain the broader social context that led to the development of a variety of specialty courts. • Summarize the distinguishing features of specialty courts compared to traditional criminal courts. • List and describe four types of specialty courts. • Explain why drug courts are so prevalent. • Describe at least two of the unintended consequences of the specialty court movement. The United States has an entrenched history of marginalizing and criminalizing behaviors associated with disadvantaged populations, including racial and ethnic minorities, women, youth, and “others” perceived as different and who traditionally lack access to positions of power in mainstream society. There is a pervasive belief among citizens that processes in the justice system result in unequal outcomes that are dependent upon a defendant’s race, income, and other socioeconomic factors rather than the facts of the crime committed. While polls consistently show the courts as the most trusted branch of government, confidence in the court system varies greatly and racial gaps exist with African Americans significantly more distrustful of the courts and the broader justice system (National Center for State Courts, 2015). A well-developed and consistently growing body of academic literature that examines racial, ethnic, and gender disparities in sentencing draws the same conclusions— that sentencing is linked not only to offense-related factors but also to defendant characteristics including race, ethnicity, gender, education level, income, and a variety of other “extralegal” factors (Bontrager, Bales, & Chiricos, 2005; Britt, 2000; Ulmer, Kurlychek, & Kramer, 2007; Wang & Mears, 2010). Historically, key decision makers in the U.S. criminal justice system, like judges, functioned with relative anonymity and discretion when imposing sentences. During the mid1900s, significant shifts in the broader social structures led to the demise of the rehabilitative ideal and the focus on the unique circumstances of the individual offender. According to Allen (1981), rising crime rates, the civil rights movement, political corruption, and a general air of skepticism and conservatism characterized America in the late-1970s. Also key during this time was President Nixon’s declaration of a “war on drugs” and his identification of drug abuse as “public enemy number one.” Public perceptions of judicial leniency and the belief that rehabilitation did not work, that privileged (meaning white) criminals were let off with nothing but a slap on the wrist whereas less advantaged segments of the population, meaning minorities, were unfairly met with harsh sentences, and that drugs were rampant led to 51

52   Part One  •  Framing Difference

significant variations in sentencing practices. It was clear that the extralegal ­attributes of a defendant, including social class, race, ethnicity, and sex, were key factors in how a defendant was treated while proceeding through the justice system. In response to political pressure and public outcry, legislatures began drafting sentencing guidelines meant to limit judicial sentencing discretion and level the playing field for defendants. While the criminal justice system is meant to be dynamic to adapt to broader social influences, unique to this time period was the tangible outcome of significant changes in sentencing practices brought on, in large part, by the War on Drugs. Congress created the United States Sentencing Commission with the passing of the Sentencing Reform Act of 1984. The Sentencing Reform Act tasked the Sentencing Commission with the distribution of guidelines to aid in determining the sentence to be imposed in a criminal case. No longer did federal trial judges have unbridled discretion when imposing a sentence for a criminal act. The imposition of these sentencing guidelines initially received some level of support from both sides of the political spectrum with conservatives alarmed by the perceived leniency of punishments handed out by so-called liberal judges and liberals arguing that judicial discretion had led to systematic discrimination that privileged some (meaning those with access to resources and power) while disadvantaging others (meaning minorities and those marginalized by mainstream society) (Blumstein, Cohen, Martin, & Tonry, 1983). It is clear from the current state of the academic literature that determinant sentencing structures have not achieved their stated goal of eliminating racial, ethnic, social class, and sex disparities while restoring credibility to the highly visible nature of the sentencing decision. Unfortunately, the creation and imposition of these sentencing guidelines and mandatory minimum sentencing structures ultimately institutionalized discriminatory sentencing policies that resulted in systemic biases. For example, the Anti-Drug Abuse Act of 1986 differentiated crack cocaine, most prevalent in innercity drug markets, from other forms of cocaine and established a 100:1 weight ratio as the threshold for requiring a five-year mandatory minimum penalty if convicted of possession (USSC, 2016). The penalty for possessing 100 grams of powder cocaine was comparable to possessing only 1 gram of crack. The passage of the Fair Sentencing Act in 2010 reduced this sentencing disparity to 18:1, clearly decreasing the institutionalized disparity yet maintaining a significant disparity in punishment. The enactment of these federal policies has resulted in differential incarceration rates and lengths of sentences for crack and powder cocaine users that disproportionately affected African-American users and their urban communities negatively. As crack cocaine is sold in smaller quantities and therefore at significantly less price than powder cocaine, there is also a very clear social class disparity enforced by the passage of these federal laws related to sentencing for drug use. The imposition of mandatory minimum sentences resulted in increased rates of incarceration, ultimately resulting in greater expenses for taxpayers. These sentencing policies brought on, in part, by the war on drugs resulted in a dramatic growth in incarceration rates for drug offenders in particular. Nearly half of all inmates in federal prison are serving time for drug offenses. The war on drugs and the sentencing reforms of the 1980s have resulted in a justice system overwhelmed by the sheer quantity of cases, high rates of recidivism, and unprecedented rates of incarceration. And not surprisingly, it is disproportionately poor people and people of color, those already marginalized by structural inequalities, who are the victims of mass incarceration brought about in part by mandatory minimum sentencing structures. Another unintended consequence of mandatory minimum sentences is the shift in discretion from the sentencing judge who now has to impose the punishment required by law (the guidelines) to prosecutors who have significant discretion when charging a defendant who violated a law that carries a mandatory minimum penalty. Essentially, mandatory minimum sentences have not eliminated sentencing disparities, their intended goal, because the



Chapter 5  •  Making Difference Work Within the Justice System   53

d­ iscretionary power has shifted from the judge’s sentencing discretion to the prosecutor’s charging discretion (Ulmer et al., 2007).

Enter the Grassroots Specialty Court Movement Undeniably, the expansion of specialty courts is in direct response to what many see as a failure of the current justice system to adequately address the unique needs of the offender, victim, broader community, and the courtroom workgroup. It has been the key players within the traditional courtroom, judges, prosecutors, and defense attorneys who have been instrumental in identifying voids in the traditional courts to adequately serve the unique needs of some offenders while working within a system that is overburdened and inefficient. The Circuit Court of what is now Miami-Dade County, Florida, instituted a special drug court docket creating the first drug treatment court in 1989. Some of the more commonly cited reasons for the creation of this initial drug court include: 1. The War on Drugs: Crack cocaine use exploded in Miami-Dade County, as in most large urban centers during the 1980s. Arrests of small-time users and dealers resulted in significant backlog of defendants charged with drug possession. The courts became clogged with petty drug offenders, overwhelmingly poor people of color, repeatedly cycling through the justice system in a “revolving door” fashion. 2. Limited resources: The day-to-day reality in Miami-Dade County was of a system completely taxed beyond capacity with limited resources in terms of jail and prison beds, bludgeoning dockets, and backlogged crime lab, leading to a high rate of plea bargains and dismissed cases. 3. Effectiveness: There was evidence of some early successes for those served by the drug court and the results caught the attention of then County’s State Attorney, Janet Reno (who later became the United States Attorney General). Singularly, Janet Reno was instrumental in the development of the drug court movement by speaking out on the benefits of treatment for offenders. Part of the 1994 Violent Crime Control and Law Enforcement Act was one billion dollars worth of grant money for drug courts. At the time of the bill’s signing, there were 41 drug courts operating nationwide. Within one year, the number had grown to 84 courts (Janet Reno and NIJ Funding). 4. Politically acceptable: The creation of the initial drug court and the subsequent growth of drug courts is politically palatable to both sides of the aisle with liberals supportive of individually tailored drug treatment programs versus a punitive approach to addiction, while conservatives, at least in part, supportive of the development of the specialty courts if they result in less crime and produce cost savings for the system. These same realities were being faced across the United States, and the country was poised and ready for a new way of dealing with the high number of cases brought on by the War on Drugs and the inflexibility of the newly implemented sentencing structures. While the majority of the literature identifies the Miami-Dade, Florida, drug court of 1989 as the start of the grassroots specialty court movement, the specialty court model has been used throughout America’s judicial history to address inefficiencies and limited resources brought about, ultimately, by the broader community identifying a moral ill worthy of increased law enforcement efforts. For example, Friedman (1993) discusses the role of “sunrise courts” in processing large caseloads of drunkards quickly. These courts operated in many large cities in the early 1900s and typically opened by five in the morning to process the drunks from the night before. These offenders were warned about the “evils of drink” and released if they had employment. Sunrise courts were considered a success as they processed a large volume of cases quickly, allowed the offenders to continue working, and kept families intact and children out of the foster system. While not typically recognized nor labeled as such,

54   Part One  •  Framing Difference

these “sunrise courts” were essentially specialty courts. They operated with a specialized docket (of drunkards), successfully kept offenders out of the ­traditional criminal courts, and were able to process a large caseload quickly all the while allowing offenders to continue being contributing members of society. Offenders kept their jobs, families remained intact, and the amount of harm done to the broader community was minimalized. It is interesting to note that it is not merely an issue of suddenly overwhelming limited court resources that lead to the need for more efficient handling of large caseloads. These large caseloads are the direct result of increased law enforcement attention to a particular crime or type of criminal as identified by the broader community to enforce a morally identified societal ill like public drunkenness in the early 1900s and the crack cocaine epidemic in large urban centers in the 1980s.

Distinguishing Features of Specialty Courts Specialty courts differ from the traditional criminal courts in several key ways. For example, the traditional adversarial court process that characterizes the criminal courts is replaced by a collaborative, often treatment-oriented approach, which is meant to ensure the offender’s long-term success: Successful completion of a specialty court treatment plan may result in the offender’s charges being reduced or the case dismissed (King, 2010). While short stays in jail may occur if an offender violates a requirement of the specialty court (e.g., continued drug use), typically specialty courts are not characterized by long stints of incarceration. While there is significant variation, most specialty courts require the completion of a one-year to 18-month treatment program. The common themes of all specialty courts identified in the literature are summarized below (refer to Berman & Feinblatt, 2001; Fox & Wolf, 2004). 1. Root cause(s): Specialty courts consider the broader social context in which the offense occurred. These courts aim to address the causes or underlying issues that resulted in criminal offending. For example, root causes may include a traumatic brain injury sustained while in active combat in Iraq by a veteran who is now experiencing fits of rage resulting in domestic violence charges, or an individual charged with burglary for breaking car windows to steal purses and search for change to pay for a heroin addiction. This focus on identifying the root causes is unique to a specialty court and is not typical in the traditional criminal courts. Criminal courts are charged with determining a legal standard of guilt via the adversarial process and meting out punishment for the criminal act. Mandatory sentencing guidelines have all but eliminated the ability of the court to consider the unique circumstances and characteristics of the offender in tailoring an individualized sentence meant to address root causes. 2. Goals and outcome oriented: Specialty courts emphasize achieving specified outcomes for the offender, victim, and the broader community. A common goal for all specialty courts is the offender’s successful reintegration into the community and reduced recidivism. Examples of outcomes may include ongoing mental health treatment, sobriety, and employment for the offender resulting in intact families, a decreased reliance on foster care by avoiding a lengthy incarceration, and all around healthier, intact communities. 3. Collaborative team approach including community-based programs: As specialty courts do focus on addressing root causes of the offender and are goal and outcome oriented, these courts coordinate with local treatment and community social service agencies to meet the unique needs of each offender. Whether it is housing, employment, mental health, and/or drug treatment, services and community members broader than the traditional courtroom workgroup provide layers of support for the offender.



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Additionally, this team approach is often at play even within the courtroom. Where traditionally the American criminal courts are characterized as adversarial, it is common in specialty courts for attorneys on both sides of the aisle (prosecutor and defense) to work in partnership in the development of a reward and consequence structure that enhances the treatment plan. 4. Judicial supervision/compliance monitoring: Though there is a collaborative team approach, ultimately it is the judge who is responsible for assessing the performance and progress of the offender. Judicial monitoring is in place to determine compliance with court orders and the offender’s case remains active in the court with direct court supervision by the judge. Cases are not passed to probation officers, community treatment centers, or other judges. The problem-solving court judge is integrally involved in each assigned case from start to finish. It is important to note that a specialty court is not a diversion program where an offender is sent to community resources, like drug treatment, in lieu of proceeding through the court system. A specialty court does make use of community resources and cooperation and coordination with a variety of practitioners outside of the typical court processes; however, the offender’s case remains active in the court with direct court supervision by a judge who monitors the use of sanctions and incentives to enforce the conditions of the program. Underlining the above features is a focus on what is now termed therapeutic jurisprudence versus an adversarial court process in the criminal courts. “Fundamentally, therapeutic jurisprudence focuses on the ‘sociopsychological’ ways in which laws and legal processes affect individuals involved in our legal system. By examining the efforts of the law in this fashion, therapeutic jurisprudence can illuminate how laws and legal processes may in fact support or undermine the public policy reasons for instituting those laws and legal processes” (Hora, Schma, & Rosenthal, 1999, p. 444).

Drug Courts: The First and Most Prevalent of the Specialty Courts Drug courts have “a specially designed court calendar or docket, the purposes of which are to achieve a reduction in recidivism and substance abuse among nonviolent substance abusing offenders and to increase the offender’s likelihood of successful habilitation through early, continuous, and intense judicially supervised treatment, mandatory periodic drug testing, community supervision, and use of appropriate sanctions and other rehabilitation services” (National Association of Drug Court Professionals (NADCP), n.d.-a). Drug courts are programs that offer offenders who have chemical dependencies the opportunity to access treatment and a variety of social services as an alternative to traditional punitive sentences like incarceration. Drug courts are unique in that they have the leverage of the criminal justice system as the judge monitors the use of sanctions and incentives to enforce the conditions of the drug court program all the while the offender remains invested in their communities and not behind bars while receiving the necessary drug treatment long enough for them to succeed. The first specialized drug court docket was formed in Miami-Dade County in 1989, effectively creating the first “drug treatment” court. The creation of the specialized court docket was in response to limitations within the traditional criminal courts to effectively handle the sheer quantity of defendants charged with drug possession— crack cocaine arrests in particular. The criminal courts were experiencing a huge backlog of defendants charged with drug possession and the courts did not have the required capacity to process the cases, laboratories could not test the seized substances in a timely manner, and jails and prisons were severely overcrowded. Exacerbating the problem are the exceptionally high recidivism rates for crack cocaine arrests, typically

56   Part One  •  Framing Difference

individuals from lower socioeconomic statuses and people of color. The system was clearly not working for drug offenders and the sheer quantity of drug offenders was causing backlog system-wide. With a recognition that chemical dependency is a public health issue and not merely a criminal justice issue, drug courts have a specialized program that focuses on criminal defendants and offenders, juvenile offenders, and parents with drug abuse/dependency issues. While there is certainly variation in approaches by various drug treatment courts across the United States, all recognized adult drug treatment courts are guided by the “10 key components” (U.S. Department of Justice, 2004). These 10 key components lay the basis for the therapeutic drug treatment court approach and can be, and have been, adapted to other specialty court modalities like the tribal healing to wellness courts. These 10 key components, summarized, include: • The integration of alcohol with other drug treatment services within the justice system. • A non-adversarial approach where the prosecution and defense work together to protect the participants’ due process rights and protect public safety. • A focus on early identification and prompt placement in a drug court. • Access to a variety of services within the community, including alcohol, drug, rehabilitation, and treatment. • Monitoring of abstinence for alcohol and other drugs. • A coordinated strategy including key court and community personnel. • Consistent judicial oversight and interaction with participants. • Continual evaluation of program goals and evaluation of effectiveness. • Continual team education and development to adjust drug court planning and operations to maintain effectiveness. • Formation of partnerships between drug courts and community agencies to create local support and improve program success. Given nearly two decades of research, it appears that drug courts do in fact reach their intended goals and objectives; drug treatment courts reduce crime and return significant financial benefits to society. The U.S. Government Accountability Office issued a report in 2005 that concludes that drug courts significantly reduce crime and save taxpayer dollars by offsetting the costs of law enforcement, case processing, and victimization resulting from criminal activity. The Multi-Site Adult Drug Court Evaluation (MADCE), funded by the National Institute of Justice, was a five-year longitudinal process, impact, and cost evaluation study of adult treatment drug court programs with nearly 1,800 drug court and non-drug court probationers from 29 rural, suburban, and urban jurisdictions. The sample included 23 drug courts across eight states. Results from this unprecedented, large-scale study conclude that drug courts reduce crime and substance abuse, improve family relationships, and increase employment and school enrollment. The National Association of Drug Court Professionals (NADCP) summarizes the research from the scientific community by stating that drug courts reduce crime and save money. Specifically, the NADCP website (www.nadcp.org/learn/facts-and-figures; NADCP, n.d.-b) claims that the research estimates that three-fourths of drug court participants are arrest-free for at least 2 years after completing a program, reductions in criminal behavior for drug court participants last at least 3 years and may be maintained for over 14 years, and evaluations of drug court programs consistently find that drug courts reduce crime, perhaps as much as 45% more than other sentencing options. In addition to reducing crime, the NADCP claims that these courts save money. “Nationwide, for every $1.00 invested in Drug Court, taxpayers save as much as $3.36 in avoided criminal justice costs alone.” While clearly the NADCP has a vested interest in promoting the successes of drug

Chapter 5  •  Making Difference Work Within the Justice System   57

Adult Drug Courts Adult Drug/DWI Courts Juvenile Drug Courts Family DWI Veterans Tribal Co-occurring Re-entry Campus

1,567 448 433 303 242 226 119 36 36 6

FIGURE 5.1  Number and Types of Problem-Solving Courts, 2014 Source: National Institute of Justice (2015).

courts, the scientific research evaluating these programs certainly paint a picture of a practice that appears to be working in meeting its intended goals. As of June 2014, there were over 3,400 drug courts and other problem-solving courts that adhere to the 10 key components summarized above across the United States, located in every state as well as in several foreign countries (Figure 5.1). Approximately half of these drug treatment courts focus on adults exclusively. Widespread success from these initial drug courts resulted in the development of several problem-solving court programs including mental health courts and veterans treatment courts. Given the success drug treatment courts have realized during the past two decades, it is no surprise that the model is being adapted by other specialty court modalities and worldwide. Drug Courts Internationally

The first documented drug court outside of the United States was established in Toronto, Canada, in 1998. Given the successes realized by drug treatment courts in the United States, an international organization, International Association of Drug Treatment Courts (IADTC), has formed with representatives from countries where drug treatment courts currently exist or are planned for the near future. The board provides technical assistance to jurisdictions adopting a drug treatment court model by advising on best practices. The international board’s objective “is to seek to reduce substance abuse, crime and recidivism throughout the world by promoting and advocating the establishment of Drug Treatment Courts” (NADCP, n.d.-c). There are now over 30 drug treatment courts worldwide with locations in 15 diverse countries, including Australia, Belgium, Bermuda, Brazil, Canada, Chile, Cayman Islands, Ireland, Jamaica, Mexico, New Zealand, Norway, Scotland, Suriname, and the United Kingdom (Huddleston & Marlowe, 2011).

Other Types of Specialty Courts Specialty courts have the unique ability to be tailored and responsive to the local needs of a community in ways traditional criminal courts cannot. For example, the creation of drug courts in the late 1980s into the early 1990s was universally a phenomenon in large urban centers, at least initially, and a response to the quantity of crack cocaine arrests and repeat offenders. The development of veterans courts was a direct response to an identified need that returning veterans were not effectively served in the traditional criminal courts nor even existing specialty courts like drug or mental health courts. The tribal healing to wellness courts began with the 10 key components of drug courts and successfully adapted the components to be reflective of the values and culture of Native American communities. While not all problem-solving court models adhere to the 10 key components of drug courts, all do have aspects of the drug court model integrated into their operating practices.

58   Part One  •  Framing Difference

Mental Health Courts (MHCs)

In 2002, the Council of State and Local Governments released a report that concluded “people with mental illness are falling through the cracks of this country’s social safety net and are landing in the criminal justice system at an alarming rate.” It goes on to conclude that key players in the criminal justice system are encountering people with mental illness at increasing rates. The criminal justice system is not equipped nor are the professionals working within the system qualified to effectively meet the needs of offenders presenting with mental health issues. Most of these offenders are charged with only minor offenses and underlying their “criminal” behaviors is a need for mental health services and/or community support that the traditional criminal courts are not equipped to handle. Given that approximately half of all arrests of people with mental illnesses are for nonviolent public order offenses like disorderly conduct or trespassing, a driving impetus for the development of mental health courts is ultimately traced to concerns by professionals in the criminal justice system including judges, attorneys, and corrections personnel that people with mental illnesses were inappropriately being incarcerated and punished versus provided the treatment required to improve their quality of life and protect public safety (Bureau of Justice Statistics, 1999). The goal of these courts is not merely to divert individuals with mental health illnesses out of the criminal justice system but to ensure that the appropriate social and mental health services are provided. Participation in all mental health courts is voluntary and defendants are invited to participate in an MHC following a screening. While all MHCs accept misdemeanor cases, approximately half will accept felony cases on a case-by-case review. In 1997, there were only four operating MHCs in the country. By January 2004, this number had climbed to 70 courts, and as of June 2005, there are a known 125 courts in 36 different states, with over 40% of all adult MHCs located in California, Ohio, Florida, and Washington (Council of State Governments, 2005). In 2014, 300 mental health courts are estimated to be operating in more than 40 states. Interestingly, this growth was not based on supporting research that indicates MHCs achieve their stated goals as very few studies had been completed during this period of growth. Similar to the drug courts, federal funds have aided in the expansion of mental health courts. In 2000, Congress passed America’s Law Enforcement and Mental Health Project Act that allotted federal funds to local jurisdictions seeking to create or expand mental health specialty courts (National Law Enforcement and Mental Health Act of 2000). The Department of Justice funds approximately a third of the country’s existing mental health courts. The Substance Abuse and Mental Health Services Administration (SAMHSA), the Center for Substance Abuse Treatment (CSAT), and the Center for Mental Health Services also provide funding to allow local courts flexibility in coordinating with local treatment and recovery providers while addressing the behavioral health needs of adults involved in the criminal justice system while diverting them away from the traditional punitive path. Similar to the drug courts summarized above, mental health courts typically utilize judges, prosecutors, and defense attorneys in collaboration with community mental health experts and a variety of social service agencies working together as a team to enforce court-ordered treatment versus incarceration. MHCs were created to help mentally ill defendants get into treatment. The goal of MHCs is “to divert justice-involved individuals with serious mental illnesses out of the court system and into communitybased treatment without jeopardizing public safety” (National Institute of Justice, n.d.). Participation is voluntary and eligible offenders can choose to keep their cases in the traditional criminal court. While the judges remain responsible for enforcing the mandates of a treatment plan, doctors are responsible for the development of the required treatment plan. The end goal is to reduce the recidivism of an offender who is mentally ill by aiding in access to necessary treatment.



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There are some mental health practitioners who are concerned that patients are manipulated into participation with the threat of incarceration contentiously looming overhead if their treatment outcomes are not positive. Many MHCs require the defendant to enter a guilty plea as a prerequisite for entry into the treatment program, a policy that mental health advocates vehemently oppose. Advocates argue that an individual struggling with a mental health diagnosis with a criminal record will face numerous obstacles in housing and employment that would be avoided if the guilty plea was not required to be admitted to the treatment court. Many advocate for the dropping of the guilty plea upon successfully completing the MHC program, a policy not adopted by all MHCs. Additionally, the MHCs are continuously plagued with limited funding, difficulties maintaining qualified staff, and often operate on a part-time basis with sparse dockets. Since 2010, there have been a handful of evaluation studies that conclude that participants of MHCs are significantly less likely to recidivate and spend fewer days behind bars than similar offenders with mental illness who proceed through the traditional criminal court process. Additionally, the literature shows that MHC participants are more likely to engage in community-based treatment (Steadman, Redlich, Callahan, Robbins, & Vesselinov, 2011). Veterans Treatment Courts (VTCs)

Recognizing the connections between combat experience, mental health disorders and/ or cognitive impairment, and substance abuse issues with the eventual trajectory, for some, leading to involvement in the criminal justice system, there are increasing efforts underway to direct veterans away from the traditional criminal justice system with the creation of veterans treatment courts (VTCs). Similar to the development of other specialty courts, those working within the traditional court system recognized that the criminal courts were ill-equipped to effectively handle the unique needs of returning combat veterans. Courts with a docket dedicated to veterans “use a hybrid integration of Drug Court and Mental Health Court principles to serve military veterans, and sometimes active-duty personnel. They promote sobriety, recovery, and stability through a coordinated response that involves collaboration with the traditional partners found in Drug Courts and Mental Health Courts, as well as the Department of Veterans Affairs healthcare networks, Veterans Benefits Administration, State Departments of Veterans Affairs, volunteer veteran mentors, and organizations that support veterans and veterans’ families” (NADCP, n.d.-a). Judge Robert Russell is credited with creating the nation’s first veterans treatment court in Buffalo, New York. Judge Russell had many years of experience presiding over both a drug court and a mental health court where he was increasingly seeing veteran offenders. In 2008, he created a veterans-only docket designed to address the growing number of veterans appearing in the criminal courts in Buffalo who presented with cofounding issues of drug, alcohol, severe mental illness, post-traumatic stress disorder (PTSD), and/or traumatic brain injury (TBI) as the result of active combat duty. It was clear that a punitive sentence from the traditional criminal courts was not an appropriate response and inadequate in addressing the unique needs of these combat veterans, their families, and the broader communities. Even established specialty courts like drug and mental health courts were not adequately treating the cofounding issues presented by returning combat veterans. The VTCs build on the same model that exists within drug courts and mental health courts by providing treatment and accountability versus a singular focus on punishment found in the traditional criminal courts. Typically, a VTC operates a docket filled with veterans charged with nonviolent felony or misdemeanor offenses often copresenting with substance abuse and/or mental illness. These courts are specially equipped to integrate treatment, social services through the broader community, and

60   Part One  •  Framing Difference

veteran peer mentor support to help navigate community and court systems. Beyond serving a unique population, the veterans treatment courts diverge from the traditional treatment courts by relying heavily on the bonds that develop among those who have served in the military and experienced active combat. A distinguishing characteristic of VTCs is the use of volunteer veteran mentors who serve as a support to the offender, both through the court process and also in the broader community. These courts also rely heavily upon community resources to support veterans like Veterans Affairs, Veterans Benefits Administration, State Departments of Veterans Affairs, Veterans Health Administration, and local community agencies. Once the offender completes the requirements of the VTC, their charges may be reduced, and their case dismissed and/or expunged. As VTCs are relative newcomers to the specialty court movement, the research evaluating their effectiveness in meeting their stated goals and objectives is only just beginning to be published. The Community Mental Health Journal released the first published study on veterans treatment court in early 2015 (Knudsen & Wingenfeld, 2016). Their results indicate that veterans involved in the VTC program experienced “significant improvement in PTSD, depression, substance abuse, overall functioning, emotional wellbeing, relationships with others, recovery status, social connectedness, family functioning, and sleep.” Unique to the VTC experience is the role of the veteran mentor as a social support for the offender. This study found that mentoring from the veteran volunteer mentors is key to success; those veterans who received mentoring experienced better clinical outcomes and reported being more socially connected than veteran defendants who did not have mentor support. According to Justice for Vets, the number of VTCs increased significantly between 2013 and 2014 (28%) with hundreds of more courts in the planning stages. A November 10, 2015, press release summarizes 264 VTCs operating in 37 states serving an estimated 13,200 veterans who otherwise would be behind bars. These courts are operating with nearly 3,000 veterans as volunteer mentors who aim to provide the support and commodore many returning veterans seek. VTCs are found in all regions of the United States with the following states operating the greatest number: Michigan (22 VTCs), California (20 VTCs), Florida (19 VTCs), Texas (19 VTCs), and Pennsylvania (17 VTCs). Tribal Healing to Wellness Courts

Tribal healing to wellness courts are tribal adaptations of drug courts. The collaborative, non-adversarial underpinnings of specialty courts are in sync with the principles and values of the tribal healing to wellness courts. This collaborative approach between the justice community and the broader community is a concept deeply rooted in Native American principles and values. A tribal healing to wellness court is a “component of the tribal justice system that incorporates and adapts the wellness concept to meet the specific substance abuse needs of each tribal community” (National Drug Court Resource Center, 2012). A tribal healing to wellness court team is comprised of tribal elders and traditional healers working in tandem with the judges, prosecutors, police officers, and substance abuse and mental health professionals. As of June 2014, there are an estimated 72 operational or planned tribal healing to wellness courts throughout the country (Flies-Away, Garrow, & Sekaquaptewa, 2014). Domestic Violence Courts

In addition to the relatively well-organized drug courts, mental health courts, and the quickly evolving veterans treatment courts that share common goals and operating principles, there are a variety of other specialty courts with significant differences in operating principles, goals, and guiding principles. These types of specialty courts vary

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significantly and some examples include gambling courts, family courts, domestic violence courts, re-entry courts, and campus courts. All of these specialty courts aim to effectively address unique needs of an offender not adequately addressed by the traditional criminal courts but beyond this common core differences abound. Domestic violence courts also developed during the broader problem-solving court movement of the 1990s and early 2000s. However, there are some important distinctions between domestic violence courts and the other specialty courts summarized above. In particular, where the other specialty courts focus on the offender and have specialized dockets filled with “victimless crimes” like drug use, mental health needs, and the confounding issues presented by veterans, the offender and the victim play a prominent role in the domestic violence courts. Common goals for domestic violence

Alternative Dispute Resolution Phoebe Morgan Put most simply, the term “alternative dispute resolution” (or ADR) refers to any alternative to litigation. The ADR tradition favors approaches that tend to be informal and confidential. Most of the time participants pursue resolution in an everyday setting outside the criminal justice system and what they do and say in those settings do not become a matter of written record. At its essence, the practice of ADR is the facilitation of agreements. Thus, unlike their lawyer counterparts, ADR practitioners are not experts in a particular type of dispute. Rather, they tend to specialize in a method of resolution facilitation. In general, the process of ADR is more collaborative than adversarial. For this reason, ADR works best when disputants join forces to solve a shared problem: their inability to find agreement. Just 50 years ago, the notion that we would need alternatives to litigation seemed radical. But today a courthouse or justice agency without such alternatives would be strange indeed. Most court systems now provide at least one alternative to court trial, and in larger jurisdictions there are benches devoted entirely to ADR. There are, for example, arbitration courts, peacemaking courts, and courts for conciliation. In fact, in most jurisdictions judges have authority to order litigants to pursue an alternative to trial, and they may even require evidence of participation in an ADR process before scheduling a trial date. With litigation, there is only one procedure: trial. But under the ADR umbrella exists a large and diverse collection of resolution models. While arbitration and mediation are the most popular forms of ADR, equally respected approaches include truth and reconciliation panels, settlement conferences, plea-bargaining meetings, restorative justice hearings, and peacemaking gatherings. There are many ways to make a living by practicing ADR. Within the field of clinical psychology, for example, psychotherapists and counselors can specialize in a form of divorce resolution called conciliation ADR. Most legal practices now have ADR specialists either on staff

or as business partners. Many police officers are specially trained in informal dispute resolution and emergency response teams receive FBI training in collaborative negotiation. Because they are mandated to do so, federal employers like the USPS, the Equal Employment Opp­ ortunity Com­mission, and the Environmental Protection Agency maintain a roster of ADR volunteers. Court reformers view the growing acceptance of ADR as progress. Because historically litigation has favored wealthy and social elites, the provision of alternatives promises to tip the scales of justice toward the needs of the poor and disenfranchised. However, reformers have also warned that ADR processes are becoming little more than a “bargain basement” substitute for courtroom justice. Even more concerning, though, is how the ubiquity of mandatory ADR clauses appears to be tipping the scales of justice too far toward the special interests of corporate citizens. While the limitations of ADR are many, even among the harshest critiques there is a consensus that the benefits of providing alternatives to litigation outweigh the difficulties of implementing them. Most notably, when pursued appropriately resolutions created from informal collaborative processes tend to be more satisfying and longer lasting than those arrived at through litigation. To learn more about ADR, crime, and justice, consider the following readings: Felstiner, W. L. F., & Williams, L. A. (1978). Mediation as an alternative to criminal prosecution: Ideology and limitations. Law and Human Behavior, 2(3), 223–244. Miller, S. (2011). After the crime: The power of restorative ­justice dialogues between victims and violent offenders. New York: New York University Press. Rack, C. (2011). Latino-Anglo bargaining: Culture, structure and choice in court mediation. New York: Routledge. U.S. Government. (2013). Mandatory mediation programs: Can bankruptcy courts help end the foreclosure crisis? (S. Hrg. 111–916). Washington, DC: U.S. Government Printing Office.

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courts include assisting victims while enhancing their safety and holding defendants accountable. Whereas the other specialty courts focus on the root causes of the defendant’s offending, such as drug addiction, severe mental illness, traumatic brain injury, and/or post-traumatic stress, many practitioners question the underlying assumption that courtmandated programs can successfully rehabilitate a domestic violence offender (Labriola, Bradley, O’Sullivan, Rempel, & Moore, 2009). A significant difference between the domestic violence courts and other specialty courts is a lack of a clear definition as to what are domestic violence courts, significant variation in terms of the cases processed (domestic violence courts with civil cases only, felony cases only, and some dockets that serve both civil and criminal cases), and a lack of common practices.

And Yet . . . The Unintended Consequences Specialty courts are not without their critics. While it does seem clear that the flexibility allotted by these specialty courts has resulted in huge successes for some offenders and their broader communities, there are some outstanding concerns that have not been adequately addressed by the current scientific literature that examines the impact of these courts. Some of the more common outstanding concerns are summarized below, and all areas highlight the need for future research. 1. Net widening: One main concern surrounding the expansion of specialty courts is the issue of net widening. These courts are established, in part, to divert offenders away from the traditional, punitive criminal courts and eventual incarceration by providing offenders with treatment and connections within their communities. Critics are concerned that law enforcement officials may arrest individuals who appear to present, for example, with a mental health issue or a homeless veteran as they believe a specialized court will be able to help address their outstanding needs for treatment and housing where otherwise the officer would not have made an arrest if a specialty court program was not available (Benhken, Arredondo, & Packman, 2009). This concern of expanding the reach, or “net,” of the criminal justice system is referred to as net widening and has the unintentional consequence of actually pulling individuals into the system who otherwise would not have been arrested. This may lead to the negatives associated with criminalizing and stigmatizing individuals (i.e., limited employment opportunities) who otherwise would not have been pulled into the criminal justice system. 2. Rights of the defendant: Some argue that a defendant, sometimes unknowingly, forfeits his/her constitutional rights when entering a specialty court treatment program. Where participation in all specialty courts is considered voluntary, there is a definite concern that not all offenders, such as those with mental health issues, can make informed and voluntary decisions about their treatment. 3. The role of judges: There is anecdotal evidence that judges make treatment decisions they are not qualified to make. For example, some judges refuse the use of methadone as a maintenance drug for an individual with a prior heroin addiction. However, the scientific literature is clear that for opioid abuse, such as heroin, ongoing maintenance is more successful than strict abstinence. If abstinence is the only outcome allowed by the drug court, many offenders will be unable to succeed in the program. Even more concerning are the anecdotal stories of offender’s dying when prohibited methadone maintenance because of a drug court mandate to be drug free. 4. Racial disparities: The evidence appears clear that individuals who participate in specialty courts, in particular the drug courts, fair better in the long term compared to those who proceed through the traditional criminal justice system. However, there is some evidence that there are racial disparities occurring in drug

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courts. For example, about one-third of individuals arrested for drug crimes in Dane County, Wisconsin, were black yet African Americans made up just 10% of the participants in the county’s drug court. Even with a concerted effort to increase minority participation in the drug courts, a large disparity exists across Wisconsin (Chase, 2014). It is not clear why such disparities exist nor if the pattern is also seen in other specialty courts in other jurisdictions. Clearly, the implications of unintentionally creating a bifurcated system where specialty courts cater to white offenders while African Americans and other minorities proceed through the traditional criminal courts is troubling and an area of research that needs to be explored further.

The Future of Specialty Courts While the most widely known and popular of the specialty courts are undeniably drug courts, many jurisdictions have implemented a variety of other problem-solving courts intended to address the unmet needs of unique offenders, the courtroom workgroups, and the broader community. As explained above, mental health courts, veterans courts, and domestic violence courts are other examples of specialty courts aimed at meeting these unmet needs. Yet there are many other specialty courts in operation, including DWI courts, gambling courts, community courts, re-entry courts, homelessness courts, and truancy courts (to name just a few). While these courts do not necessarily adhere to all of the principles adopted in model drug courts, they share a common goal of addressing the unmet needs of a variety of key constituents by the traditional criminal courts. Given the success of drug courts, their expansion, and adaptation of their 10 key components, it is likely that specialty courts will continue to expand with support from the government at the local, state, and federal levels. The Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) passed a joint resolution to “Take steps nationally and locally, to expand and better integrate the principles and methods of well-functioning Drug Courts into ongoing court operations” and to “Advocate for the resources necessary to advance and apply the principles and methods of problem-solving courts in the general court systems of the various states” (CCJ/ COSCA Problem-Solving Courts Committee, 2004). It is safe to assume that the drug court model will continue to be adapted and expanded to most effectively meet the unique needs of a variety of defendants and the broader community. While the specialty courts movement truly began as a grassroots initiative with key players in the justice system recognizing a need to address the unique needs of offenders and the broader community, these courts quickly became entrenched in the justice system nationwide. The research is promising; overall, it is evident that specialty courts have the potential to save taxpayer dollars, reduce recidivism, and more adequately address the unique needs of some offenders than the traditional criminal courts. However, the current state of the research really does not address whom these specialty courts most effectively serve, how, and why. Largely lacking in the literature is a critical examination of the role of race, ethnicity, gender, social status, and how specialty courts can remedy a justice system that is rooted in discrimination. It is clear that these courts have the potential to circumvent entrenched discriminatory practices, and in fact, drug courts were created to serve nearly exclusively the urban, largely African-American crack cocaine addict of the 1980s. Yet it is discouraging that the evaluation studies to date that aim to determine whether these courts are “effective” have largely ignored the questions of difference and have not examined whether realized successes for defendants are equal regardless of social status, gender, race, or ethnicity. It is possible that these specialty courts have evolved into systems that treat the “haves,” while the “havenots” continue to be processed through the traditional court system.

64   Part One  •  Framing Difference

Questions for Review 1. Discuss the pros and cons of specialty courts in relation to their intended goals and purposes. Do the realized successes of specialty courts outweigh the unintended consequences? Support your position. 2. Critically assess the contention that specialty courts are uniquely situated to address the unmet needs of the offender, victim, and broader society when compared to the traditional criminal courts, particularly as they relate to difference.

3. Identify a local specialty court. Compare and contrast the local court’s mission, goals, objectives, and outcomes in relation to the 10 key components of drug courts. In what way is the local specialty courts’ mission, goals, objectives, and outcomes consistent with the 10 key components of drug courts and in what ways do they appear to be inconsistent?

References Allen, F. (1981). The decline of the rehabilitative ideal: Penal policy and social purpose. New Haven, CT: Yale University Press. Behnken, M. P., Arredondo, D. E., & Packman, W. L. (2009). Reduction in recidivism in a juvenile mental health court: A pre- and post-treatment outcome study. Juvenile and Family Court Journal, 60(3), 23–44. Berman, G., & Feinblatt, J. (2001). Problem-solving courts: A brief primer. Law and Policy, 23(2), 125–140. Blumstein, A., Cohen, J., Martin, S. E., & Tonry, M. H. (Eds.). (1983). Research on sentencing: The search for reform (Vols. 1–2). Washington, DC: National Academy Press. Bontrager, S., Bales, W., & Chiricos, T. (2005). Race, ethnicity, threat and the labeling of convicted felons. Criminology, 43(3), 589–622. Britt, C. (2000). Social context and racial disparities in punishment decisions. Justice Quarterly, 17(4), 707–732. Bureau of Justice Statistics. (1999). Mental health treatment of inmates and probationers (Pub. No. N U 174463). U.S. Department of Justice. Retrieved from http://www.bjs.gov/content/pub/pdf/mhtip.pdf. CCJ/COSCA Problem-Solving Courts Committee. (2004). Resolution 22. Retrieved from http://cosca.ncsc.org/~/ media/Microsites/Files/COSCA/Policy%20Papers/ Resolution-Natl%20Agenda-Final-Aug-04.ashx. Chase, T. (2014, August 17). Wisconsin drug courts grow, but racial disparities persist. Green Bay Press Gazette. Retrieved from http://www.greenbaypressgazette.com/ story/news/investigations/2014/08/17/ wisconsin-drug-courts-grow-racial-disparities-­ persist/14163761/. Council of State Governments. (2005). Mental health courts—A national snapshot. Retrieved from https:// www.bja.gov/Programs/MHC_National_Snapshot.pdf. Flies-Away, J. T., Garrow, C., & Sekaquaptewa, P. (2014). Tribal healing to wellness courts: The key components (2nd ed.). West Hollywood, CA: U.S. Department of

Justice, Bureau of Justice Assistance, Tribal Law and Policy Institute. Retrieved from http://wellnesscourts. org/files/Tribal%20Healing%20to%20Wellness%20 Courts%20The%20Key%20Components.pdf. Fox, A., & Wolf, R. (Eds.). (2004). A problem-solving revolution: Making change happen in state courts. New York: Center for Court Innovation. Friedman, L. M. (1993). Crime and punishment in American history. New York: Basic Books, a division of HarperCollins Publishers. Hora, P. F., Schma, W. G., & Rosenthal, J. T. A. (1999). Therapeutic jurisprudence and the drug treatment court movement: Revolutionizing the criminal justice system’s response to drug abuse and crime in America. Notre Dame Law Review, 74(2), 439–538. Retrieved from http://www.ndci.org/sites/default/files/ndci/ NotreDame.Hora_.pdf. Huddleston, W., & Marlowe, D. B. (2011). Painting the current picture: A national report on drug courts and other problem-solving court programs in the United States. Alexandria, VA: National Drug Court Institute. Retrieved from http://www.ndci.org/sites/default/files/ nadcp/PCP%20Report%20FINAL.PDF. King, M. (2010). Judging, judicial values and judicial conduct in problem-solving courts, indigenous sentencing courts and mainstream courts. Journal of Judicial Administration, 19(3), 133–159. Knudsen, K. J., & Wingenfeld, S. (2016). A specialized treatment court for veterans with trauma exposure: Implications for the field. Community Mental Health Journal, 52(2), 127–135. Labriola, M., Bradley, S., O’Sullivan, C. S., Rempel, M., & Moore, S. (2009). A national portrait of domestic violence courts. New York: Center for Court Innovation. National Association of Drug Court Professionals. (n.d.-a). Types of drug courts. Retrieved from http://www.nadcp. org/learn/what-are-drug-courts/types-drug-courts. National Association of Drug Court Professionals. (n.d.-b). Drug courts work. Retrieved from http://www.nadcp. org/learn/facts-and-figures.



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National Association of Drug Court Professionals. (n.d.-c). Mission and vision. Retrieved from http://www.nadcp. org/about-us/mission-and-vision. National Center for State Courts. (2015). The state of state courts: A 2014 NCSC Public Opinion Survey. Retrieved from http://www.ncsc.org/~/media/Files/PDF/Topics/ Public%20Trust%20and%20Confidence/SoSC_2015_ Survey%20Analysis.ashx. National Drug Court Resource Center. (2012). What is a tribal healing to wellness court? Retrieved from http:// www.ndcrc.org/node/351. National Institute of Justice. (2015). Drug courts. Office of Justice Programs, U.S. Department of Justice. Retrieved from http://www.nij.gov/topics/courts/drug-courts/ Pages/welcome.aspx#note1. National Institute of Justice. (n.d.). Mental health courts (multisite). Office of Justice Programs, U.S. Department of Justice. Retrieved from CrimeSolutions.gov: http:// w w w. c r i m e s o l u t i o n s . g o v / P r o g r a m D e t a i l s . aspx?ID=398&utm_source=widget&utm_ medium=widget&utm_campaign=widget. National Law Enforcement and Mental Health Act of 2000. Pub. L. No. 106-515, 114 Stat. 2399 (codified as amended in scattered sections of 42 U.S.C.).

Steadman, H. J., Redlich, A., Callahan, L., Robbins, P. C., & Vesselinov, R. (2011). Effect of mental health courts on arrests and jail days: A multisite study. Archives of General Psychiatry, 68(2), 167–172. United States Sentencing Commission. (2016). Chapter 6: Report on cocaine and federal sentencing policy. The national legislative and law enforcement response to cocaine. Washington, DC: Office of Public Affairs. Retrieved from http://www.ussc.gov/report-cocaineand-federal-sentencing-policy-2 (retrieved March 23, 2016). U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance. (2004). Defining drug courts: The key components (NCJ 205621). Retrieved from https://www.ncjrs.gov/pdffiles1/bja/205621.pdf. Ulmer, J. T., Kurlychek, M. C., & Kramer, J. H. (2007). Prosecutorial discretion and the imposition of mandatory minimum sentences. Journal of Research in Crime & Delinquency, 44(4), 427–458. Wang, X., & Mears, D. (2010). A multilevel test of minority threat effects on sentencing. Journal of Quantitative Criminology, 26(2), 191–215.

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PART TWO ▪ ▪ ▪ ▪ ▪

Categories of Difference: Gender and Sexuality

As Part One details, difference is a part of our everyday lives. For justice professionals, understanding and recognizing difference as a resource is an important step in creating and sustaining justice. Part Two begins our discussion of specific categories of difference. Throughout the remainder of the text, we will discuss and describe individuals in various categories of difference and how their experiences with offending, victimization, and being justice professionals help us better understand difference more broadly. As was mentioned in Chapter 2, discussing categories of difference and specific historic groups is by no means a discussion of every experience with the justice system. Rather, we are using recognizable categories and specific group identities as a heuristic device for exploring differences. The categories are by no means exhaustive, and are, in fact, rather generic. However, they are useful in our larger discussion of how difference is constructed and explaining the consequences of those constructions. Part Two focuses on issues pertaining to gender, sexuality, and justice. There are three chapters in this section, each of which illustrates issues pertaining to the socially constructed ideas of gender, sex, sexual orientation, victimization, and the historical significance of the criminalization of gender and sexual transgression. In Chapter 6, Wonders re-envisions the previous text’s discussion of gender. Too frequently when we discuss gender, it is code for women. We fell into the same trap in the previous edition. Though the chapter provided excellent information about women in the criminal justice field as victims, offenders, and professions, it neglected to discuss how men’s experiences with the justice system differ. This can have detrimental consequences for social change because it inaccurately defines gender issues solely in terms of women’s issues. While women continue to demand attention as they face significant discrimination in the United States, this chapter also discusses men and the role of men and masculinity as important components of such inequality. This new gender chapter, Chapter 6, illustrates the importance of thinking about gender from a broad perspective and moving beyond explicitly detrimental gendered binaries. In this chapter, readers are provided with several key concepts that are important to understand not only the remainder of the chapter, but also many other chapters within this text. She defines important concepts like the distinction between sex, gender, essentialism, gender identity, and gender expression, among others. Wonders examines the complex relationship between gender inequalities, crime, and justice and discusses the use of soft and hard social control as means of maintaining and enforcing gender differences. She provides a rich history of gender within the field of criminology and criminal justice and discusses how feminist criminology and other feminist theories have provided frameworks for addressing issues of gendered inequality. Throughout this chapter, Wonders provides discussion of gendered victimization and gendered offending. She demonstrates the way gender inequalities shape criminal offending and gender-based victimization differently—and similarly—based on how someone defines themselves or is defined by others in social interaction. 67

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Chapter 7 by Jones and Prior is also a newly envisioned chapter that builds on several of the important discussions from the second edition of this text, but fills in gaps such as discussing issues of sexuality and sexual orientation from an intersectional standpoint. This chapter also pulls apart the often-conflated issues of gender and sexual orientation by discussing how these identities are related, but distinct and discusses important concepts such as heteronormativity, hegemonic masculinity, gender identity, and gender expression. Jones and Prior discuss how transgender individuals experience extreme victimization rates and, while transgender issues have been recently brought to the media forefront, when interacting with the criminal justice system, transgender individuals are often revictimized, ignored, or shamed. The authors highlight how law has served to criminalize sexual minorities and provide an overview of landmark cases such as Lawrence v. Texas, Windsor v. United States, and Obergefell v. Hodges. Jones and Prior additionally discuss not only victimization rates in terms of general victimization rates, but also victimization rates of LGBTQ offenders who are in justice facilities such as jails, prisons, and detention centers. In addition, the authors discuss offending that includes the fact that LGBTQ “offenders” are often criminalized not for committing crimes per se, but rather for being themselves (i.e., bathroom laws, sodomy laws, etc.). Lastly, the authors describe recent work among law enforcement institutions that have attempted to be more inclusive and reflect the needs of the communities they serve. Part Two is rounded out by Chapter 8, “Victimization in the Context of Difference.” In this chapter, de Heer and Jones provide a thorough discussion of victimization. They share how victimization has been defined and experienced differently over time. The authors look at crime victim statistics and measurement issues particularly as they relate to marginalized groups. The authors make the important point that contrary to popular discussion and representation of victims, men are the most likely victims of most crime. With the exception of crimes such as intimate partner violence, sexual assault, and rape, men are the typical victims of crime. This contradicts both gendered stereotypes and victim stereotypes. In their discussion of crime victims, the authors discuss the socially constructed notion of the “ideal victim,” which typically contradicts real-world victimization. In this way, we have constructed a hierarchy of victimization that has significantly negative impacts on those who do not fit the ideal model. The authors additionally provide explicit examples of the way crime victim statistics gathered through the National Crime Victims Survey (NCVS) and other victimization surveys are misleading in that they are biased against marginalized groups and they often do not (and/or cannot) accurately reflect all kinds of victimization including violence against women. The chapter provides a rich overview of victimization theories that incorporate influence of gender and power in addition to a discussion of victims’ role in the criminal justice system. This section includes a discussion of gendered routine activity theory and feminist routine activity theory. Victim experiences are often compounded in the criminal justice system because many victims of crime experience revictimization, particularly victims of explicitly gendered crimes such as sexual assault. In their broad discussion of victimization, de Heer and Jones also discuss the role of the Victims’ Rights Movement, the role of criminal justice practitioners, and the importance of understanding difference, all in relation to interactions with victims. To demonstrate many of the issues discussed in their chapter, de Heer and Jones use the timely example of campus sexual assault to illustrate gendered injustice and current victims’ rights legislation. Read together, these chapters provide both a broad and detailed discussion of how gender and sexuality influence how individuals experience the justice system. They illustrate important examples of the gendered nature of certain crimes and certain kinds of victimization; also, they provide a broad-based understanding of how sexuality has become normalized (in terms of heteronormativity) and how sexual minorities or those who transgress the gendered binary are penalized both socially and criminally.

6

▪ ▪ ▪ ▪ ▪

Gender, Crime, and Justice Nancy A. Wonders

Chapter Objectives • Analyze the relationship between gender, crime, and justice. • Introduce key concepts in the study of gender and justice. • Analyze how gender is socially constructed and how gender inequalities are maintained and enforced through soft and hard social control. • Explore the contributions of feminist criminology and the way that different perspectives have informed our understanding of the relationship of gender inequalities to crime and justice, as well as strategies for social change. • Consider how other inequalities and identities intersect with gender inequalities to shape the experience of justice and injustice. • Examine the consequences of gender inequalities for criminal offending, gender-based victimization, justice processing, and work as justice professionals. • Consider the challenges and opportunities globalization poses for gender injustice. • Identify strategies that could reduce gender inequalities and heighten justice for all. This chapter examines the complex relationship between gender inequalities, crime, and justice. First, key concepts related to gender are defined and discussed, along with an examination of some of the mechanisms utilized to create, maintain, and enforce gender divides. Next, the chapter provides a brief history of attention to gender within the field of criminology and criminal justice. The chapter then discusses some of the relationships between gender and offending, victimization, and work as justice professionals. Brief attention is also devoted to the way that globalization has altered the nature of gender injustices, while also offering new opportunities for international collaboration and problem solving. The chapter concludes by discussing how gender constructions might change in ways that free people to experience their full humanity, as well as how the administration of justice must change if we are to better achieve justice.

Some Key Concepts As outlined in Chapter 2, scholars typically make a distinction between sex and gender. Historically, the term sex has been used to refer to biological and physical differences, including secondary sex characteristics. Sex is typically conceived of as a categorical difference or a difference in kind (think, for example, of apples and oranges). However, it may be surprising to know that the idea of distinct biological “sex” categories is actually relatively recent in terms of the long stretch of human history: For two thousand years a ‘one-sex model’ dominated scientific and popular thought in which male and female bodies were not conceptualized in terms of difference. From antiquity to the late 1600s, male and female bodies were seen as fundamentally similar, even in terms of genitalia, with the female vagina regarded as an interior penis. (Messerschmidt, 2004, p. 7) 69

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Although most conceptualizations of sex categories focus on two distinct “kinds” of bodies—female and male—research on the categorization of physical differences and secondary sex characteristics around the world reveals that some “cultures openly acknowledge a third sex” (Bradley, 2007, p. 20), and today many anthropologists argue that there are probably at least five sexes—and maybe more (Fausto-Sterling, 2012; Messerschmidt, 2004). Interestingly, those born intra-sexed, exhibiting complex or indeterminate secondary sex characteristics, constitute roughly 1–2% of the population (Fausto-Sterling, 2012). Being born with intra-sexual characteristics is just one of many naturally occurring human variations; further, intra-sexed individuals have been revered in some societies, while in other societies—such as the United States—the cultural assumption that there can only be two categories of sex has historically been so powerful that many physicians performed surgery on intra-sexed individuals to force them to fit more neatly into just one culturally prescribed sex category, a practice that is now challenged by many physicians and social groups (Davis & Murphy, 2013). Gender refers to the social and cultural meanings assigned to sex differences. Gender differences are typically conceived of as falling along a continuum (think, for example, of height). The gender continuum is typically viewed as having masculinity at one end and femininity at the other. An entire set of social and behavioral norms are associated with masculinity and a different range of social and behavioral norms are associated with femininity. The fact that these differences are socially constructed, rather than “natural,” is revealed by the wide range of characteristics that have been associated with femininity and masculinity, both historically and cross-culturally. An illustration of this reality is provided by a childhood photo of Franklin Delano Roosevelt, the 32nd President of the United States, taken in the late 1880s. The young F.D.R.’s hair falls to his shoulders, he wears an elegant dress with frilly ruffles, holds a hat with ribbons and a large feather plume, and on his feet are white ankle socks and black mary-jane shoes with tiny bows. Describing popular magazines and department stores in the early 1900s, one author notes “The generally accepted rule is pink for the boys, and blue for the girls. The reason is that pink, being a more decided and stronger color, is more suitable for the boy, while blue, which is more delicate and dainty, is prettier for the girl. . . . Today’s color dictate wasn’t established until the 1940s” (Geiman, 2011). Some scholars today challenge the distinction between sex and gender since, in reality, the meanings attached to both concepts are socially constructed and the two concepts work to constitute one another (Butler, 1990). For example, in some cultures analyzed by anthropologists, the social characteristics of gender are used to decide which sex category people occupy (rather than the other way around); for example, among the Neur of East Africa, it is fertility and the ability to bear children that determines who is considered to be “male” (not genitalia) (Messerschmidt, 2004). This cross-cultural evidence provides further support for the notion that neither gender nor sex is “real” or “natural”; instead, femininities and masculinities, and females and males, are given meaning within a process of social interaction. Essentialism is the idea that there are fundamental or “essential” differences between women and men. However, despite a large volume of research that has sought to investigate whether differences in secondary sex characteristics, chromosomes, or genetics lead to distinctive differences in behavior, “few true biologically anchored differences exist” (Levit, 2000, p. 16; see also Fausto-Sterling, 2012). It is important to realize that even if biological differences were found, how we choose to manage those differences is a cultural decision. For example, a great deal of research has been devoted to trying to find a link between the hormone testosterone and aggression; thus far, no strong relationship has been found to support the idea that those with more testosterone are more prone toward aggression (Levit, 2000). However, even if it were found that males have more testosterone and so tend to be “naturally” more aggressive,



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wouldn’t a logical cultural response be to reduce their exposure to violence as children to ensure that this tendency is not realized? Shouldn’t we then be giving boys dolls to play with rather than guns? What makes human beings so different from other primates is that biology is NOT destiny, since individual agency and cultural choices can be used to shape human behavior. The capacity to develop language and culture allows human beings to give meaning to differences. Interestingly, research on the relationship between sex differences and gender constructions tends to be biased from the outset by focusing almost exclusively on differences rather than sameness; yet, “similarities between the sexes far outweigh differences” (Levit, 2000, p. 18). Human beings have an amazing capacity to exhibit behavior anywhere along the masculinity–femininity continuum and, throughout their lives, most people exhibit behaviors that fall at various points along the continuum. They exhibit strength, show courage, fight, take care of others, feel jealously, and weep. Rather than encouraging people to experience and express their full humanity, the social construction of gender seeks to draw a sharp line between the feminine and the masculine and to link characteristics and behaviors designated as “feminine” to those who are identified as females and those designated as “masculine” to those identified as males. In doing so, a dichotomous divide—a binary—is created. Perhaps most importantly, one half of this binary—maleness/masculinity—is valorized and privileged and placed in a hierarchically superior position over the other half of the binary— femaleness/femininity. This hierarchical privileging is in evidence in many societies, although there is enormous variation in the characteristics associated with masculinity and femininity across history and cultures. These gender binaries are frequently used as a lens with which to view social reality. As Messerschmidt (2004, p. 25) writes, “criminologists have addressed the problem of the gendered nature of crime through a theoretical lens that assumes that ‘sex’ is exclusively dichotomous when no such dichotomy holds biologically, historically, cross-culturally, or even currently within Western societies, such as the United States.” In fact, criminologists help to create and reinforce the sex/gender divide every time their analysis focuses on “men” and/or “women” as though these are natural distinctions, rather than socially constructed categories. As discussed later in Chapter 7, gender identity refers to individuals’ understanding of their own gender. This may or may not be consistent with how they perform gender to others or their gender expression (Potter, 2015). Ordinary people do have agency or free will to decide upon and change their gender identity and gender expression. At the same time, as the section below outlines, people everywhere are profoundly constrained in their choices because of the way that gender is constructed, maintained, and enforced, including through important social institutions like the criminal justice system. As we will see, gender may be socially constructed, but it also operates as a “social fact” with very real consequences. It is for this reason that it is necessary to understand the dynamics that lead to gender divides and also to examine the consequences of gender inequalities for criminology and criminal justice.

Constructing Difference: Creating, Maintaining, and Enforcing Gender Difference A variety of societal mechanisms are employed to ensure that sex is linked to socially constructed gender differences. This section focuses on two mechanisms discussed in Chapter 2: soft social control and hard social control. It also examines three broad perspectives on gender that provide further insight into how gender is created, maintained, and enforced. Soft social control refers to the way that compliance with cultural expectations around gender is assured by encouraging individuals to internalize gender norms.

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“Masculinity and femininity are cultural constructs, and children are socialized to conform to cultural expectations of gender” (Levit, 2000, p. 36). The key agents of socialization play a pivotal role in encouraging this internalization, particularly family, schools, peers, religion, and the media. Parents and families play a particularly important role in early gender socialization through soft social control. Gender stereotyping occurs even before children are born through name selection and the color coding of clothing and nursery room walls. From birth onward, parental expectations and the opportunities provided to children in the home, but also in interaction with schools, peers, and the media, set the stage for the social production of gender. Research on neurophysiology has demonstrated that social experiences have physiological consequences since the very architecture of the brain is socially constructed through experience (Perry, Pollard, Blakley, Baker, & Vigalente, 1995). Socialization into gender roles goes a long way toward creating gender differences in behavior, and also in encouraging the internalization of social control, particularly for girls. For example, giving some children dolls helps to ensure that they will develop the nurturing and empathetic capacities needed for work in caretaking roles, while giving other children building blocks and toy guns helps them to develop the capacities and attitudes needed to become engineers, architects, and soldiers. In this way, parents, along with other key agents of socialization, develop and reinforce capacities in ways that are gendered from the very beginning of life. Hard social control refers to the use of coercion and force to ensure compliance with gender roles. It is important to realize that if gender divides were “natural,” coercion and force would not be needed to ensure compliance with gender differences. Discrimination, stereotyping, and sexism are all coercive strategies utilized by individuals and social institutions to enforce compliance with gender divides. For example, historically policing agencies established height and weight requirements for officers that used men as the normative ideal. These standards were a form of institutional sexism since they were not gender neutral given that most women were less likely to meet these standards than men. Historically, nation-states, laws, and the criminal justice system have played a central role in creating, maintaining, and enforcing gender divides using hard social control. In the United States, law and the legal order have played a particularly important role in producing the gender divide. For example, U.S. laws excluded most women from voting, ensuring that they could not influence politics or shape law creation. Laws also restricted women from owning property, obtaining higher education, and from many jobs. In many cases, it was the absence of law and legal protection that created profound gender inequalities. For many years, there were no laws to protect women from sexual assault or violence during marriage, no laws to restrict sexual harassment, and no laws prohibiting gender-based discrimination in employment. For much of U.S. history, the absence of law protecting women’s economic and political rights relegated women to economic dependence upon men for their safety and survival. Additionally, for most of U.S. history, the use of the “reasonable man standard” as an evaluative lens in court cases imposed masculine normative standards upon women’s behavior and, thus, created a legal foundation privileging male perspectives on social harm, including on such issues as the use of violence in the home or the impact of pornography in the workplace. To further consider how gender is constructed, maintained, and enforced, it is useful to consider Lorber’s (2006) three perspectives on the social construction of gender; she argues that gender can be thought of as a process, as part of the stratification system, and as a structure. Thinking of gender as a process involves a recognition that gender is never fixed but must be constantly produced and reproduced through social interaction and within social institutions. Gender expectations are learned and reinforced through socialization, while violations of those expectations are met with

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informal and formal sanctions. People are “doing gender” all day, every single day, although their gender display may vary depending upon the circumstances (e.g., with parents, on a date, at school); thus, gender must be viewed as a socially situated, ongoing “accomplishment” (West & Zimmerman, 1987), as are all kinds of socially stratified “differences” (West & Fenstermaker, 1995). Thinking of gender as stratification encourages attention to the way that gender divides operate to allocate power and privilege, as is also true of social divides based upon race and class. Gender is a form of social stratification or structured social inequality in which a binary is created between masculinity/male and femininity/ female, and then privilege is socially assigned to one group—masculinity/male in order to create a hierarchy. According to Lorber (2006, p. 280), Gender is a process of creating distinguishable social statuses for the assignment of rights and responsibilities. As part of a stratification system that ranks these statuses unequally, gender is a major building block in the social structures built on these unequal statuses.

In the case of gender in the United States, masculinity/maleness is viewed as the normative standard (or as the “neutral” category) against which all others are measured and judged (as can be seen with the “reasonable man” standard described previously). Gender matters because it allocates privilege and advantage. The social relation in which individual men and men as a group gain power and privilege as a consequence of the gender divide is called patriarchy. This power and privilege does not emerge from biological or innate differences; instead, power and privilege are socially constructed and enforced within specific historical moments, cultures, and contexts. Thinking of gender as a structure draws attention to the way that gender inequalities come to be embedded in social institutions and social structures, including the nation-state, the political system, the public sphere of work and employment, the private sphere of the home, and also law, courts, and the criminal justice system. Historically and contemporarily in the United States, the devaluation of the female/ feminine has permeated the major institutions of U.S. society and the social organization of social life, where “men dominate the positions of authority and leadership in government, the military, and the law; cultural productions, religions, and sports reflect men’s interests” (Lorber, 2006, p. 281). As gender hierarchies become embedded in key social structures, gender differences come to be viewed as “natural” and this ensures the maintenance and enforcement of gender divides into the future, as well as a profound spatial and experiential separation between women and men, and this “separation of women and men reinforces gendered differentness, identity, and ways of thinking and behaving” (Lorber, 2006, p. 282).

Feminist Criminology and Theories About Gender Inequalities Attention to gender within the field of criminology and criminal justice is a direct consequence of the women’s movement and the press for civil rights for African Americans and other historically marginalized groups that dominated the 1960s and 1970s. The women’s movement drew attention to the relative absence of scholarly work on the lives of women and girls throughout the academy. It also created pressure for academic departments to hire women and, eventually, for the creation of academic units in Women’s Studies (Weigman, 2012). Within the context of these departments, a flourishing new body of feminist theoretical work developed to explain and analyze the history of women’s social exclusion and oppression within society. Since the 1960s, a wide range of feminist theories have been developed to explain how and why gender differences came into being and what role they have played historically and contemporarily. Each of these theories has influenced approaches to

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gender within the field of criminology. Feminism refers to “a set of theories about women’s oppression and a set of strategies for social change” (Daly & Chesney-Lind, 1988). In general, the theoretical turns within feminism reflect the intellectual development of ideas about gender. Entire books have been written about the various feminist perspectives within criminology and the influence of this work on attention to gender within the discipline cannot be overstated (Chesney-Lind & Morash, 2011; Renzetti, 2013; Van Gundy & Kappeler, 2009). It is important to realize that there is no single feminist perspective. At the same time, before discussing what various feminist perspectives have contributed to criminology and criminal justice, it is important to emphasize that almost all feminist perspectives do share several common characteristics. These include a common focus on gender as a central organizing dynamic for contemporary social life; how power is used to construct, maintain, and enforce gender divides; the need to understand how the broader political, economic, social, and cultural context shapes gender constructions; examination of gendering as an ongoing social process; and the importance of social change (Caulfield & Wonders, 1993a). Feminist perspectives tend to differ based upon their understanding of the causes of gender inequalities, the way gender inequalities are linked to harm and justice, and the proposed solutions for reducing or eliminating gender inequalities. A brief sketch of the most influential of these perspectives within criminology is useful for illuminating the history of attention to gender inequalities within the discipline. Liberal feminism originated in the early suffragette movement of the 1800s, although many core ideas became more fully developed over time, particularly during and after the 1960s. Liberal feminists argue that gender inequalities arise from genderbased discrimination and a lack of equal opportunities for women in political, economic, and social realms. Liberal feminists have examined how sex roles and inequality of opportunity lead to gendered offending patterns; they have also highlighted the unequal treatment of girls and women in the justice system and discrimination in justice occupations (e.g., Adler, 1976; Simon, 1977). For liberal feminists, social change can best be accomplished by creating laws that prohibit gender-based discrimination and that ensure equal access and equal opportunity for girls and women. Marxist feminism argues that capitalism as an economic system is the source of gender inequalities, especially unequal social class relations. This perspective argues that women are disadvantaged in capitalist societies because of their economic dependence on men and disproportionate employment in the most vulnerable sectors of the economy. Marxist feminists have helped to draw attention to the essential role that economic independence and security play in reducing violence, harm, and victimization (Schwendinger & Schwendinger, 1983). They argue that the transformation of the economic system is required in order to eliminate social class differences, class struggle, and gender inequalities. Radical feminists argue that patriarchy is the primary source of gender inequalities. Patriarchy refers to “a gender structure in which men dominate women, and what is considered masculine is more highly valued than what is considered feminine” (Renzetti, 2013, p. 8). The ideas provided by radical feminists have been especially important for drawing attention to men’s effort to control women’s bodies and reproductive capacities (from chastity belts to laws regarding birth control), as well as men’s use of violence as a mechanism of power and control over women, with a particular focus on sexual assault, domestic violence, harassment, and violent pornography (e.g., Flavin, 2008; Stanko, 1986). Radical feminists contend that it is essential to dismantle patriarchy and equalize power in order to reduce gender inequalities. Socialist feminists weave together the tenets of both Marxist feminism and radical feminism to argue that both capitalism and patriarchy are responsible for gender inequalities. Socialist feminists focus on the way that patriarchy and capitalism work



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together to produce gender inequalities and to limit women’s power relative to men (e.g., Jurik, 1999; Messerschmidt, 1986). In particular, they have highlighted the role that women’s reproductive labor in the private sphere of the home plays in facilitating capitalism; although household labor and care work are crucially important for capitalism, they remain largely unpaid labor that produces women’s vulnerable social location and dependence on men within capitalist societies. Socialist feminist criminologists have examined how the social location of women and men within patriarchy and capitalism shapes the gendered character of their offending and their victimization. To reduce gender inequalities, socialist feminists argue that women must gain access to political and economic power in order to heighten gender justice. In addition, they argue that the care and reproductive work historically performed by women should be paid work; one consequence of this policy is that it would encourage men to be more involved in the socialization of children, which would ultimately transform gender constructions toward greater equality. Postmodern feminism focuses on the use of power and privilege to socially construct gender inequalities via language, discourse, culture, and everyday life. Postmodern feminists argue that the meanings attached to gender are not “objective” but are “subjective” and reflect the interests of those with greater power (Wonders, 1999). To create social change, it is essential for ordinary people to recognize and exercise their power to shape the meaning of gender and to achieve greater justice through the micropolitics of everyday life. A variety of other feminisms have developed to address concerns faced by those who claim particular identity categories. These include lesbian feminism and queer feminism, which challenge the heteronormativity or heterosexual biases of earlier feminisms (e.g., Buist & Lenning, 2015) and feminists focusing on masculinities (Messerschmidt, 1993, 2013, 2015). At the same time, black feminists, indigenous feminists, and Latina feminists have drawn attention to the “whiteness” and “colorblindness” of much feminist theorizing and the failure to acknowledge racial differences (e.g., Potter, 2015; Richie, 2012). These feminisms have sought to give voice to a diversity of perspectives on gender inequalities and have sharpened attention to issues of power and privilege. One of most important feminist perspectives to influence criminology to date is intersectionality, which emerged primarily from the work of black feminists. As highlighted in Chapter 3, intersectionality refers to the “conceptualization that each person has an assortment of coalesced socially constructed identities that are ordered into inequitable social stratum” (Potter, 2015, p. 3). This perspective argues that gender inequalities are structurally and situationally produced within the context of complex relationships among a range of identities and differences, such as class, race, and sexual orientations. Basically, intersectionality argues that women are never just “women” and men are never just “men”; experiences vary dramatically based upon other overlapping and intersecting identities. As Potter (2015) emphasizes, “criminologists must at least ponder the impact of individuals’ interconnected, multiplicative identities in any research conducted involving the actions of people, whether as offenders, victims, criminal legal system agents, or lawmakers and policymakers” (p. 112). The development of feminist perspectives that focus on gender inequalities within the academy and in the broader society altered the field of criminology and criminal justice in several interrelated ways. More women began to be hired into departments of criminology and criminal justice, some scholars (mostly women, but also some men) began to focus on the lives of women and girls and, eventually, on gender—including both femininities and masculinities—as important analytic categories when examining the central issues of the field. The next three sections draw on feminist criminological research to examine how gender inequalities shape criminal offending, victimization, and work in the justice

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system. Rather than attempting to summarize the extensive research that has been conducted on these themes, this section will focus on several key questions: What are some of the ways in which gender inequalities shape criminal offending and genderbased victimization differently—and similarly—for those who identify (or are designated) as female and male? How does gender intersect with other differences and identity categories? Is criminal justice processing gendered? How do gendered inequalities shape opportunities to work in justice professions, as well as the daily practice of justice work?

Gender and Criminal Offending Without a doubt, the most important variable for explaining criminal offending and violent behavior in the United States is being male (Belknap, 2015). Whether attention is focused on street crimes, like homicide, assault, robbery, sexual assault, and burglary, or on the crimes of the powerful, such as corporate crime, white-collar crime, political crime, and state crime, men are disproportionately responsible for engaging in harmful behavior. Despite this reality, the bulk of research on gender and criminal offending to date has focused on the unique offending patterns of women relative to men, in large part because the initial focus on gender within criminology coincided with the women’s movement and calls for greater attention to the lives of women and girls. Prior to the late 1970s, women were virtually “invisible” within criminological research (Belknap, 2015). Unfortunately, much of the criminological research on gender has tended to naturalize sex differences. It is often taken as a “given” that females and males are different, so girls and boys and women and men are divided into (assumed) sex categories and compared to one another. To describe some of this research, it will at times be necessary to talk about women and men as though they are “real” categories, but simultaneously we must also attend to the social dynamics involved in producing gender differences, including the role played by the larger culture and the criminal justice system. It is also important to point out that, even when gender is considered in analysis, it is often conceptualized in a simplistic way without consideration of the way that other identities intersect with gender to shape perspectives and experiences (Belknap, 2015; Potter, 2015). The focus here will be on how and why femininities and masculinities translate into differential patterns of offending, victimization, and differential responses from the justice system. Some of the earliest research on women as offenders was conducted by two of the first female criminologists. In her 1976 book Sisters in Crime, Freda Adler argued that, as a consequence of the women’s movement, women would become more like men in their offending patterns. A similar, though slightly different claim was made by Rita Simon in her 1977 book Women and Crime; she argued that female property crime would increase as women moved into occupations previously held only by men. These ideas, which anticipated that women’s offending would increase as a consequence of the women’s liberation movement, have come to be known as the emancipation thesis (Chesney-Lind, 2006). However, subsequent research evidenced that the emancipation thesis was actually incorrect. Despite women’s gradual entrance into the workforce, the “myth of masculinization” remains just that—a myth—since there has not been a sharp increase in the use of violence by women or in their criminal offending. Although there was a modest increase in women’s involvement in property offenses during the 1970s and 1980s, research has demonstrated that “the ‘feminization of poverty,’ the increased number of women (with and without dependents) living in poverty, is a better predictor of women’s criminality – then of property crimes – than is the strength or weakness of the feminist movement” (Belknap, 2015, p. 49). In fact, one of the most striking aspects of crime in the United States is that females consistently have much lower rates of



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offending relative to males across age groups. Indeed, many criminologists argue that if this reality could be explained, much of “crime problem” could be solved! Within the United States, official criminal justice statistics and academic research suggest that girls and women constitute roughly a quarter to just under a third of all arrests, while boys and men constitute close to three-quarters of all arrests (Belknap, 2015; Mallicoat, 2015). Most researchers have found that girls’ and women’s offending tend to be relatively minor and nonviolent, with property crimes making up the vast majority of adult female arrests (Mallicoat, 2015). In contrast, offending by boys and men is both more frequent and different; boys and men are disproportionately arrested for violent and serious offenses and “the number of male arrests is twice that of the number of arrests of women for index crimes and it is almost three times greater than the number of arrests for all crimes” (Mallicoat, 2015, p. 283). It is significant to note that both females’ and males’ offending reflect gendered social roles and cultural expectations. In his early work, Messerschmidt (1986) pointed out that men tend to engage in crimes of domination, while women’s crimes are best characterized as crimes of accommodation. Offenses by boys and men are often linked to the production of masculinity and the exercise of power and control, while offenses committed by girls and women tend to reflect efforts to manage violence in their lives, as well as factors linked to a lack of economic security, such as poverty and economic marginalization. For example, using a feminist pathways approach that “seeks to show how life events (and traumas) affect the likelihood to engage in crime,” research by Belknap (2015) has “identified a cycle of violence for female offenders that begins with their own victimization and results with their involvement in offending behavior” (Mallicoat, 2015, p. 204). In recent years, the media has frequently suggested that there has been an increase in violent or “bad girls” in part because girls’ arrests have increased over the last decade; however, this has largely been driven by net-widening strategies that have redefined some harms that were previously being largely ignored as worthy of attention from the criminal justice system. Research by Chesney-Lind and Irwin (2007) demonstrates that much of the increase in girls’ arrests can be attributed to “assaults,” which almost always involve altercations with parents—a behavior that previously would not have been reported to the authorities. Chesney-Lind and Irwin (2007) argue that the heightened use of formal social control in the contemporary period has increased the criminalization of girls’ behaviors, particularly when girls attempt to exert independence from their parents. In other words, it appears that girls’ behavior has not changed; rather, what has changed is the official criminal justice response. While feminist criminological research on girls and women has sought to explain their relative lack of offending, much of the gender-focused research on boys and men has sought to explain why criminal offending, particularly the use of violence, is so closely linked with maleness (Messerschmidt, 1993, 2013, 2015). Within the United States, male gender socialization is closely linked with definitions of masculinity that valorize the exercise of power, force, and violence. Hegemonic masculinity refers to the normative values that govern the performance of masculinity in a particular time and place (Connell, 1987; Messerschmidt, 2004, 2013). Hegemonic masculinities “are culturally honored, glorified, and extolled at the symbolic level and through embodied practice, and constitute social structural dominance over women as well as over other men” (Messerschmidt, 2004, p. 43). Hegemonic masculinities tend to be linked to other categories of privilege, like race and social class; thus, not all men have access to the privilege that accompanies the performance of hegemonic masculinities. Research focused on gender and violence suggests that crime and violence in the United States are resources for “doing gender” and especially for accomplishing masculinity (Messerschmidt, 1993, 2004). Ethnographic work focused on the lives of black and Latino boys has evidenced that in poor, disadvantaged communities, aggression is

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often used to obtain “respect” and to evidence toughness in an environment where other opportunities to achieve respectability are structurally blocked (Anderson, 2000; Rios, 2011). Over the years, a large body of research has highlighted the cultural normalization of violence within U.S. culture. It is in some ways ironic that the criminal justice system punishes some of those who engage in violence given the incredibly frequent and strong cultural messaging that “boys will be boys,” that “real men” should be tough and willing to utilize force, and that the use of violence is valuable for creating “heroes” (Cavender & Prior, 2013). As Levit (2000, p. 46) notes, “we have to ask whether our culture has pathologized behavior that is simply a manifestation of the prevailing construct of masculinity.” If we are to reduce violence as a cultural problem, it will be essential to also focus on the cultural production of masculinity as a closely related problem. As Katz (2006, p. 1) writes, “the long running American tragedy of sexual and domestic violence – including rape, battering, and sexual harassment, and the sexual exploitation of women and girls – is arguably more revealing about men than it is about women. Men, after all, are the ones committing the vast majority of the violence.” Tragically, both boys and girls are socialized to accept violence engaged in by males as “normal.”

Gender-Based Violence and Gendered Victimization Although it is typical to address victimization separately from offending, research on the gendered dynamics of harm and violence has increasingly problematized this distinction. Research consistently finds that a history of childhood and familial violence is disproportionately linked to criminal offending (Belknap, 2015). This section examines some ways that victimization is gendered. Research on gender-based violence focuses attention on the relationship between hegemonic masculinities and uses of violence, as well as on the social production of femininities that reinforce vulnerability, fear, dependence, and passivity—characteristics that (by design) make it easier for boys and men to exercise power and control over girls and women (Belknap, 2015). Behavioral tendencies to use violence, as well as to exhibit vulnerability, are not a “natural” distinction between women and men; they must be produced. From a young age, girls are taught to be fearful of strangers and of public spaces. Research demonstrates that by their teenage years, many women do not feel safe enough to engage in independent actions by themselves, such as going to a laundromat, seeing a movie, or going into a bar (Gordon & Riger, 1989; Madriz, 1997). Yet, the greatest risk of harm for women is not from strangers in public spaces; instead, women are much more likely to experience violence in their own homes. It is important to emphasize that, for most street crimes, boys and men are much more likely to be victims of violence than are girls and women (Belknap, 2015). At the same time, the character of violence against females is distinctive because it is so often committed by intimates and acquaintances. “The most common crimes committed against women and girls – sexual abuse (including rape), intimate partner abuse (domestic violence), and stalking – not only are some of the most invisible and under-reported crimes, but also are some of the most abusive, fear-inducing, humiliating, and often violent and dangerous crimes” (Belknap, 2015, p. 5). Many characterize men’s violence against women within the United States as “epidemic” because it is so pervasive. In a classic essay, Sheffield (2007) argues that the use of violence toward women might best be conceived of as sexual terrorism since the intimidation and violence directed toward some women is designed to create fear in all women so that they will “stay in their place” and outside of public space. In this way, ALL women are affected by violence, just as ALL men benefit from the power and privilege that results from women’s absence from public spaces. Sexual terrorism is a power tactic that ensures



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that women will see their personal safety and freedom of movement as dependent on men. For example, women are often told that they should not “walk alone,” but the individual decision to heed this advice reduces the presence of women in public space, making the individual woman walking alone seem exceptional and out of place, thus actually increasing all women’s risk. Victims who do experience harm from gendered violence often experience victim blaming in which the person harmed is accused of not engaging in actions that might have prevented harm (Meloy & Miller, 2011; see Chapter 8). This draws attention away from the broader societal context in which male violence is normalized and in which the options victims have for avoiding harm are “limited by their position in the social structure and the resources available to them” (Meloy & Miller, 2011, p. 4). Imagine a world where ALL women felt free to walk alone in public space; the streets would then be full of women, making public spaces safer for all women. While females are being socialized to view fearfulness, dependency, passivity, and vulnerability as “feminine” qualities, males are being socialized to view toughness, aggression, and violence as central components of masculine identity (Katz, 2006; Kimmel, 2007). Violence is learned and normalized from the earliest years of life. Indeed, the use of physical punishment in the home is exceedingly common within the United States (Strauss, 2010). Thus, children learn that it is acceptable to hit—and to be hit—within the context of intimate relationships. Yet, research on neurophysiology indicates that children who are regularly subjected to violence, either directly or as a witness, experience profound fear and anxiety. When violent experiences are frequent, this “state” of anxiety and fear can become a “trait” that essentially hardwires children exposed to violence to a lifetime of internalized distress (Perry et al., 1995). Interestingly, the strong scientific evidence research linking corporal punishment with increased aggression and a long list of behavioral and health-related problems has led some countries to make the use of corporal punishment illegal and both the European Union and the United Nations have called upon all parents to prohibit its use (Strauss, 2010). More serious forms of violence in the home, such as child abuse and neglect, have also been linked to perpetuation of violence later in life, as well as significantly higher rates of arrest for both juvenile and adult offending (Widom, 1995). Research now strongly suggests that there is an intergenerational transmission of violence (Milaniak & Widom, 2014). Further, the relationship between neglect, abuse, and later uses of violence is gendered, with the link between victimization and offending being stronger for young men (Asscher, Van der Put, & Stams, 2015). In addition to the relatively high rates of corporal punishment and violence in U.S. homes, children are literally bombarded by media images, video games, and sporting events that valorize the use of violence and aggression by men, as well as those that sexualize girls and women and portray them as vulnerable, weak, and inferior to boys and men. An extensive body of research has developed that highlights the “cultural normalization” of violence. The social costs associated with the cultural support for masculine violence are borne by females and males, adults and children. Some have argued that the failure of the criminal justice system to take violence against women seriously could be considered a form of political crime (Caulfield & Wonders, 1993b). Sadly, women who do seek assistance from the criminal justice system often experience secondary victimization, which is the harm caused by unsympathetic, unfair, or sexist treatment by justice workers. Secondary victimization and victim blaming discourage women from reporting the serious harms they experience. These gendered dynamics in criminal justice responses to harm contribute to a climate that seems to condone violence against women. Given the compelling evidence that links the social construction of gender to violence, it is striking how few criminal justice and policy reforms explicitly focus on gender dynamics when seeking to address victimization. Perhaps, the most promising

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piece of legislation focused on gender-based violence is the Violence Against Women Act (VAWA) of 1994. This legislation sought to reduce violence against women by “improving criminal justice responses” and “funding services for victims of domestic violence, sexual assault and stalking” (Richie, 2012, p. 85). However, some scholars now argue that this initial intention has been largely circumvented by government agencies and (the mostly white) men who have been disproportionate recipients of federal VAWA dollars to fund research projects that frequently divert the funds to law enforcement agencies rather than to addressing the sources of gender inequality or to directly supporting women’s economic independence (Bumiller, 2010; Richie, 2012).

Gender Inequalities and the Administration of Justice One of the central debates within the scholarly work on gender and the justice system is whether gender differences exist in how people are treated within the criminal justice system by law enforcement officers, court personnel, and correctional officials. Some of the earliest work examining this question argued that there is a paternalism or chivalry within the justice system toward females that results in leniency toward girls and women at every stage of the process. However, research has demonstrated that the situation is far more complex than the chivalry perspective suggests; attention must be paid to a range of factors that mediate or intersect with gender, including cultural expectations, the type of offenses, and the way that other characteristics and socially constructed identities intersect with gender. While some research has found that girls and women are treated more leniently than boys and men at the point of arrest, leniency is most often reserved for older, white, middle-class girls and women, while poor, young, women of color are routinely excluded from chivalrous treatment at every stage of the criminal justice process (Belknap, 2015; Potter, 2015). In fact, some research has found that girls and women are actually treated more harshly for certain kinds of offenses. Women and girls who engage in behavior that violates traditional sex role expectations are sometimes treated more harshly by police than are boys and men (Mallicoat, 2015). For example, there is a long history in the United States of incarcerating women who kill their abusers. In most such cases, “these women rarely have any criminal record before the murder, they are usually the ones who notify the police of the murder, and the murder almost always occurs during an abusive incident in which the victim is acting in self-defense”; it is noteworthy that “in the past, these women typically received longer sentences than men who killed their wives” (Belknap, 2015, p. 7). These punitive sentences are closely linked to gendered stereotypes about women. Women are often blamed for their own victimization in intimate relationships, as is evidenced by the common question, “why didn’t she just leave?” Yet, women do leave abusive relationships—typically many times; it is the social construction of gender roles that creates structural pressures for women to return to abusers, even in the face of grave danger. Because women are typically paid less than men, and women who work in the home are not paid at all, exiting an abusive relationship often means significant economic hardship and it does not guarantee an end to abuse and harm (Belknap, 2015). Given the structural and economic barriers facing women, the decision to return to an abuser is often less a “choice” than an economic necessity. Contemporary research on gender and justice processing reveals that identification of sentencing disparity or differences in the way that women and men are treated by the criminal justice system does not necessarily mean that there is discrimination or unfair treatment based upon gender stereotypes and prejudice. Some lenient treatment also seems to be mediated by gender roles that do not necessarily reflect sex-based discrimination on the part of authorities. For example, in a classic study, Daly (1989) found that judges gave more lenient sentences to those who were primary caretakers of dependent children—a leniency that was extended to BOTH women and men. It is because women



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in the United States are more likely to care for dependent children that they are more often beneficiaries of this kind of judicial leniency. As this research illuminates, the impact of gender on justice processing is complicated. Gender may be more or less salient depending upon a variety of contextual factors that shape the use of discretion within the justice system, and also based on the intersection with other identity categories. Research on the gendered character of corrections and incarceration has tended to focus on sex differences between the correctional treatment of girls and women versus boys and men, with an emphasis on prisons. This literature emphasizes the way that girls’ and women’s facilities are both much fewer and also quite different from those in which boys and men are incarcerated. The use of a male/masculine norm in the design of prisons means that women’s unique needs often go unmet; for example, gynecological care is woefully inadequate in most facilities and mental health services are often minimal despite the fact that women tend to enter prison with high rates of prior victimization (Mallicoat, 2015). Since the 1970s, the dramatic growth in mass incarceration is one of most significant transformations within our justice system and society. The War on Drugs was facilitated by the adoption of harsh sentencing laws for drug offenses. In addition, many states adopted “three-strikes” legislation that required long sentences for multiple felony convictions. As Danner (1998) examines in detail, these laws had at least three gendered consequences: (1) they redirected governmental dollars away from social services and welfare protections that had provided essential social safety net protections to women, particularly poor women and their children; (2) there was a shift of jobs away from social service agencies, which had employed women, to law enforcement and correctional agencies that disproportionately employ men; and (3) the care work for families and dependent children left behind in the wake of mass incarceration fell largely upon women. As Danner (1998, p. 11) writes, “the social construction of crime and criminals and the political nature of their control are neither gender blind nor gender neutral.” The “get tough” approaches associated with the War on Drugs led to the creation of what Richie (2012) calls the “prison nation.” Since the 1980s, there been a sharp increase in the use of detention for girls and the even sharper rise in imprisonment rates of both men and women. Here, an intersectional analysis is essential since it is disproportionately African Americans who witnessed rapid increases in rates of incarceration (Alexander, 2012). Research has established clearly that drug arrests drove the rise of mass incarceration, particularly marijuana arrests; although whites use drugs more than blacks (including marijuana), African Americans have been and continue to be incarcerated at much higher rates for drug offenses (Alexander, 2012). AfricanAmerican men are disproportionately likely to be incarcerated, but African-American women from impoverished communities are among the most visible casualties of this war and their incarceration rates have increased dramatically (Mallicoat, 2015). The incarceration of women falls particularly hard on children (Chapter 17). When men are incarcerated, women in their families will typically assume responsibility for taking care of any dependent children (Belknap, 2015). However, when women are incarcerated, gendered social norms reduce social expectations that fathers will engage in care work and, as a consequence, a significant number of the children of incarcerated mothers are cared for by family members other than the father; additionally, children of mothers who are incarcerated are five times more likely to be in foster care or state care than is true for incarcerated fathers (Belknap, 2015). Women are also adversely affected by the disproportionate incarceration of men, particularly in poor communities. When men are incarcerated, it is women who must pick up the financial and familial work that men might otherwise have performed, especially given the sharp decline in the social welfare state that paralleled the rise of mass incarceration (Alexander, 2012; Danner, 1998). For this reason, it is important to

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view the gendered impacts of incarceration intersectionally and from a communitywide perspective (Richie, 2012). When discriminatory treatment based on gender has been revealed within the criminal justice system, the strategies and tactics for addressing discrimination have not always led to improved justice, especially for women. A powerful example is provided in the changed character of official responses to incidents of domestic violence. Historically within the United States, violence by men toward women was common and largely sanctioned by the nation-state, including through laws that made it legal in many states for a man to beat his wife as long as he used an object that was no bigger in circumference than his thumb (also known as the “rule of thumb”). Throughout the 1990s, several landmark court cases combined with criminological research to powerfully reveal that law enforcement responses to domestic violence were so minimal as to tacitly authorize the use of violence in intimate relationships (Eigenberg, 2000). As the women’s movement exerted pressure for change, many police departments instituted mandatory arrest policies. However, within a short period of time, the application of the principle of “equality” to situations of intimate partner violence began to translate into heightened arrest of both men (typically perpetrators of violence) and women (who were mostly those victimized by violence) (Meloy & Miller, 2011; Richie, 2012). This contradictory effect of the equal application of law and arrest policies to people who are differently situated has been characterized as equality with a vengeance (Chesney-Lind, 2006). A more promising strategy for taking gendered inequalities into account within the criminal justice system is the development of gender-responsive approaches. Typically, gender-responsive approaches treat gender as a “social fact” that is real in its consequences and, therefore, must be considered for the fair application of justice. Rather than focusing on equality or identical treatment of females and males, the priority is placed on the principle of equity, which recognizes that fair treatment may need to take “difference” into account in order to achieve justice. Gender-responsive approaches have become especially important in the field of corrections and have recently led to the implementation of programming that better addresses the differing life experiences and circumstances that girls and women bring to the justice system, particularly the frequent linkage between offending and victimization (Belknap, 2015), as well as the need to heighten capacities for independent living (Mallicoat, 2015). While gender-responsive approaches have had some positive benefits for decentering boys and men as the “norm” for correctional programming, some scholars view them as a double-edged sword since they have a tendency to further naturalize and reinforce gender binaries (Hannah-Moffat, 2010). The dilemma associated with characterizing women and men as “different” is that there is always a risk of further reinforcing gender binaries and making gender inequalities even more durable.

Gender and Justice Professions The examination of gender differences within justice-related professions has focused on several interrelated themes: the underrepresentation of women in justice-related employment and the use of law to leverage change, the privileging of masculine qualities over feminine qualities in the “doing” of justice work, and ongoing challenges surrounding gender and difference within professions. Until the 1970s, women were largely absent from professional roles in the U.S. criminal justice system. As Martin and Jurik (2007, p. 1) note, Before 1972, the number of women employed in the justice system as police officers, lawyers, judges, and correctional officers (COs) was miniscule; those women were excluded from most jobs that entailed the exercise of authority over men. Women worked only as ‘specialists,’ drawing on qualities and skills associated with their gender. For example, policewomen supervised women and juvenile arrestees and performed secretarial work.



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Women’s entrance into justice occupations was a direct consequence of the political struggle that culminated in the social movements of the 1960s and their focused attention on increased civil rights for many social groups. Once again, the coercive force of law played a crucial role in creating the conditions for this societal transformation. Among the key legal changes that facilitated women’s entrance into justice work were the Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972, both of which prohibited discrimination in employment based on protected categories, including sex. In 1968, Executive Order 11246 (on affirmative action) was amended to prohibit sex discrimination, in addition to other protected categories. Also important was the 1990 Americans with Disabilities Act that required workplaces to provide “reasonable accommodation” for qualified differences, a provision that made it possible for women to make the case that unique needs (e.g., breastfeeding) needed to be accommodated in the workplace (Martin & Jurik, 2007; Renzetti, 2013). Affirmative action policies were especially crucial for increasing the employment of women and people of color in policing; however, “the decline in court-mandated affirmative action increases the likelihood of diminished recruitment, retention, and promotion for women and persons of color in the coming decade” (Martin & Jurik, 2007, p. 56). Lawsuits were also important for creating the legal change that forced social change; for example, successful lawsuits were key to challenging police departments’ entrance requirements related to height, as well as requiring police departments to allow women to compete in promotional processes leading to patrol duties (Martin & Jurik, 2007) and also to permit the hiring of women in male correctional facilities (Renzetti, 2013). Despite these legal changes, women’s employment in justice occupations remains well under their proportion of the population. For example, although women are just over half of the U.S. population, in 2013, women working in law enforcement were just 1 in 8 of all local police officers and 1 in 10 of first-line supervisors (Reaves, 2015). In 2014, women were roughly a third of all attorneys, a third of all Supreme Court Justices, and between a third and a quarter of federal and state judges (depending upon the type of court) (American Bar Association, 2014). Women continue to experience sexism and discrimination in justice employment, as well a glass ceiling that constrains them from professional advancement into leadership and decision-­ making positions. As Renzetti (2013, p. 30) emphasizes, A large body of research over the past three decades has documented numerous obstacles to gender equality that women in all criminal justice professions continue to confront. These include: overt opposition from male co-workers who see the inclusion of women as a threat to the prestige of the occupation or to the masculinity attached to it – or to them as individual men; persistent gender stereotypes about women being weak, overly emotional, vain, or seductive – traits that not only inhibit women’s ability to fight crime and effectively control prisoners, but also endanger their male co-workers; lack of mentoring by senior co-workers; and sexual harassment.

While legal change has been crucially important for facilitating women’s access to justice employment, this research reveals that there is still a great deal of work to be done to create the social, attitudinal, and behavioral changes needed to facilitate greater gender equality in justice professions. In particular, it is important to address masculine biases and privilege in the “doing” of justice work. In an extensive investigation of ways that women and men “do gender” within criminal justice occupations, Martin and Jurik (2007) revealed the way that most justice professions tend to valorize masculine qualities over feminine qualities, especially in policing and corrections. Women working in justice professions frequently experience pressure to “act like men” and so some choose to “do masculinity” while on the job in order to fit into workplace cultures (Martin & Jurik, 2007).

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Yet, it appears that some socially constructed gender differences associated with femininities might actually lead to more effective performance in some kinds of justice work, at least from the point of view of citizens. For example, although research findings are far from uniform, various studies have found that women police officers make fewer arrests, receive fewer citizen complaints, and have better citizen relationships, in part, because they are more likely to use reason, are less likely to employ verbal threats and force, and are more likely to deescalate situations (Belknap, 2015; Martin & Jurik, 2007). This research suggests that placing a narrow value on masculinity may limit the kind of strategies and tactics used in justice work, including those historically linked with “femininity” (e.g., empathy, care, and concern) but which may be highly efficaciousness in the management of conflict and the performance of some aspects of justice work. This research suggests that all justice workers would benefit from developing and employing the full range of skills and traits associated with both femininities and masculinities if they wish to respond effectively and appropriately to the diverse circumstances they face on a daily basis in the pursuit of justice.

Globalization and Gender Injustices As discussed in Chapter 2, globalization is one of the most important economic, political, and social transformations shaping the world today. Neoliberalism is the term used to describe the contemporary globalization of the political economy and the privileging of the free market over social welfare protections and other social goals. The rise of neoliberalism and related global transformations has led a new focus on the impact of globalization on gender injustices in the United States and within an international context. Some of this new research focuses on the way that globalization has helped to produce and maintain gender differences and gendered injustices, while other research has highlighted the potential for global dynamics and international laws to reduce gender inequalities. Globalization has challenged and changed how masculinities and femininities are constructed in the United States and globally, particularly given the intercultural exposure of people everywhere to other ways of “doing gender” (Connell, 2003). Feminist criminologists working from an international perspective bring in “other axes of identity such as nationality, migratory and refugee status, postcolonial perspectives and the voices of indigenous peoples; in addition, ‘the definition of crime itself becomes broadened when an international lens is adopted’” (Barberet, 2014, p. 7). A historical understanding of the role of law in creating inequalities and protecting privilege requires that criminologists concerned with social harm in a global context consider “analogous social injuries” that exist outside of the formal legal code, including those that violate international law and human rights accords (Michalowski, 1985). Today, corporations and nation-states commit many of the most serious global harms, and these entities sometimes collude in ways that criminologists call state–­ corporate crime (Michalowski & Kramer, 2006). Unfortunately, many of the harms committed by corporations and nations are either poorly addressed or not addressed at all through national law. A great many of the gravest global harms fall disproportionately on those already most disadvantaged—they are raced, classed, and gendered (True, 2012; Wonders & Danner, 2002, 2015). Criminological analysis of a wide range of contemporary global harms has benefited enormously from the utilization of a gender lens, including research on migration, refugees, and border deaths (Gerard, 2014; Pickering, 2011), sex tourism (Wonders & Michalowski, 2001), sex trafficking (Segrave, Milivojevic, & Pickering, 2009), state–corporate crime (Wonders & Danner, 2002), mining and resource extraction (Carrington, 2015; Carrington, McIntosh, & Scott, 2010), violence in conflict and post-conflict situations (Barberet, 2014), and global climate change (Wonders &

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Danner, 2015). In general, this rapidly growing body of international feminist criminological research provides strong evidence that higher rates of gender inequality are linked to far greater levels of gender-based violence around the world (Belknap, 2015; True, 2012). This research has brought much needed attention to emerging global and international gender justice issues, as have several new books (Barberet, 2014; Carrington, 2015).

An Intersectional Approach to Climate Change Nancy Wonders Global warming poses one of most important contemporary threats to the diverse people and species residing on Earth. Scientists have now established that “warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen, and the concentrations of greenhouse gases have increased” (IPCC, 2015, p. 4). These trends are already leading to a rise in extreme weather events and an increase in environmental disasters, such as droughts and floods. Criminological attention has begun to focus on the complex links between global warming, environmental destruction, and increased harm and violence (Kramer, 2013; Kramer & Michalowski, 2012; White, 2012; Wonders & Danner, 2015). To examine the causes and consequences of climate change, it is essential to adopt an intersectional approach that considers how “socially constructed identities” are “ordered into an inequitable social stratum” that ensures that some have substantial power over resources, legal processes, and political and economic decision making, while others do not (Potter, 2015, p. 3). Climate change does not affect all people equally. Inequalities related to the social construction of difference play an important role in producing the dynamics that cause global warming, as well as in creating the vulnerabilities that put some people at greater risk of harm. Socially constructed inequalities based on social class, gender, nationality, race, age, and other differences play a central role in producing vulnerability to harm (Detraz & Windsor, 2013). Global warming poses a greater threat to those who are poor and who do not have the resources to escape volatile weather or environmental devastation, while gender inequalities ensure that women are disproportionately among the world’s poor (Agostino & Lizarde, 2012). Women’s greater vulnerability to harm is produced by a gendered division of labor in which women own fewer resources, are paid less, and have reduced representation in political and economic decision making (Heckenberg & Johnston, 2012). In most of the world, women are the majority of the world’s food providers and farmers; when droughts hit these regions, it is

women who must travel further to find food and water, and when floods come, it is women who disproportionately drown since gendered cultural norms prevent them from learning to swim (Neumayer & Plümper, 2007). Socially constructed differences based on race and nationality also produce vulnerabilities to the harm associated with global warming. People from poor nations and particular racial and ethnic groups have reduced political and economic power to draw international attention to the challenges they face due to climate change. For example, in some of the nations of Africa, violent struggles over land and scarce resources are on the increase as a consequence of climate change, with adverse impacts for many—especially for the very young (Parenti, 2011; White, 2012). Sadly, the voices of marginalized people are rarely heard by those with the greatest power to create change. Examining the profound inequalities associated with the social construction of difference is also crucial for understanding the causes of global warming. Anthropomorphic or human-caused climate change is closely related to the exercise of power and privilege by the (mostly) wealthy, white men in the Global North who control the reins of corporate power and who exert the most influence over nation-states and the global political economy (MacGregor, 2014; Nagel, 2014). The pursuit of economic growth and profit above all other priorities— what Naomi Klein (2014, p. 169) calls extractivism or “a nonreciprocal, dominance-based relationship with the Earth”—benefits a relatively small number of wealthy elites at the expense of the many. In addition, globalizing masculinities, focused on such priorities as financial risk taking, soldiering, securitization, and violence, play an especially important role in the increased global conflict that is now associated with global warming (True, 2012; Parenti, 2011). People in the Global North have benefitted disproportionately from a growth-oriented, fossil fuelbased economy that wreaks havoc on the environment. Rather than encouraging international cooperation to reduce global warming, many political and economic decision makers in the Global North are instead responding to emerging climate crises through heightened militarism (White, 2014). Yet, research suggests that militarism is one

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of the most important contributors to global warming given the heavy dependence of militaries on the fossil fuel industry and petroleum products (Clark & Jorgenson, 2012). As this brief intersectional analysis has evidenced, the social construction of difference plays an important role in producing global warming and also in producing vulnerabilities to harm. An intersectional approach suggests that addressing climate change will require focused attention on the harmful behavior of the most privileged in our society. Indeed, some criminologists have already called for global warming to be defined as a “state–­ corporate crime” (Kramer, 2013; Kramer & Michalowski, 2012). In doing so, they seek to emphasize the greater responsibility of nation-states and corporations for causing global warming, as well as their greater power to prevent or mitigate further devastation. Given that the social construction of difference plays a central role in creating the dynamics that produce global warming, as well as vulnerabilities to harm, reducing inequalities must be an important focal point for creating social change. Given the historic and contemporary legacy of socially constructed differences and inequalities, it will not be easy to build unity across our differences; yet, nothing less than the future of the planet is at stake. References Agostino, A., & Lizarde, R. (2012). Gender and climate justice. Development, 55(1), 90–95. Clark, B., & Jorgenson, A. K. (2012). The treadmill of destruction and the environmental impacts of militaries. Sociology Compass, 6(7), 557–569. Detraz, N., & Windsor, L. (2013). Evaluating climate migration. International Feminist Journal of Politics, 16(1), 127–146. Heckenberg, D., & Johnston, I. (2012). Social differences and environment-related victimisation. In R. White (Ed.), Climate

change from a criminological perspective (pp. 149–171). New York: Springer. Intergovernmental Panel on Climate Change. (2015). Fifth assessment report: Summary for policy makers. Retrieved from http://www.ipcc.ch/pdf/assessment-report/ar5/wg1/ WG1AR5_SPM_FINAL.pdf (accessed April 7, 2016). Klein, N. (2014). This changes everything: Capitalism vs. the climate. London: Allen Lane/Penguin. Kramer, R. C. (2013). Carbon in the atmosphere and power in America: Climate change as state–corporate crime. Journal of Crime and Justice, 36(2), 153–170. Kramer, R. C., & Michalowski, R. J. (2012). Is global warming a state–corporate crime? In R. White (Ed.), Climate change from a criminological perspective (pp. 71–88). New York: Springer. MacGregor, S. (2014). Only resist: Feminist ecological citizenship and the post-politics of climate change. Hypatia, 29(3), 617–633. Nagel, J. (2014). Intersecting identities and global climate change. Identities: Global Studies in Culture and Power, 19(4), 467–476. Neumayer, E., & Plümper, T. (2007). The gendered nature of natural disasters: The impact of catastrophic events on the gender gap in life expectancy, 1981–2002. Annals of the Association of American Geographers, 97(3), 551–566. Parenti, C. (2011). Tropic of chaos: Climate change and the new geography of violence. New York: Nation Books. Potter, H. (2015). Intersectionality and criminology: Disrupting and revolutionizing studies of crime. New York: Routledge. True, J. (2012). The political economy of violence against women. NY: Oxford University Press. White, R. (2012). Climate change from a criminological perspective. New York: Springer. White, R. (2014). Environmental insecurity and fortress mentality. International Affairs, 90(4), 835–851. Wonders, N. A., & Danner, M. J. E. (2015). Gendering climate change: A feminist criminological perspective. Critical Criminology, 23(4), 401–416.

Globalization has also made possible new strategies for achieving social change (Keddie, 2010). Today, feminists within and outside of criminology “argue for the building of resistance and solidarity across borders” (Mohanty, 2013, p. 267). The comparative examples provided by other countries provide a new range of policy and justice options for reducing gender inequalities within the United States. For example, Sweden has adopted legislation that criminalizes those purchasing sex, typically males with resources, rather than criminalizing those selling sex, who are more likely to be female and poor. Brazil has implemented women’s police stations—staffed by female law enforcement officers and serving only women—to better respond to violence against women. The development of international governmental and nongovernmental organizations provides another focal point for justice claims and interventions. The United Nations (UN) has played an especially important role in creating international laws and covenants to pressure nation-states to do more to ensure gender equality and gender equity (Wonders & Danner, 2002, 2015). The Convention to End All Forms of Discrimination Against Women (CEDAW) is perhaps the most



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comprehensive statement of women’s human rights to be drafted. Although it has now been ratified by the vast majority of UN member nations, “the only Western developed country not to have ratified CEDAW is the United States”; as Barberet (2014, p. 58) astutely notes, “the failure of the United States to ratify CEDAW makes many question the US commitment to women’s human rights both internally and abroad.”

Creating Gender Justice Within the field of criminology and criminal justice, a substantial body of research now exists establishing strong links between sharp gender divides, uses of violence, gender-based victimization, gender inequalities in the administration of justice and within justice professions, and gender injustices around the world. While more research on these issues remains to be done, there is an even more urgent need to translate existing research into political and policy change. In particular, it is crucial to address women’s relative lack of representation in politics given the key role legislators and judges play in crafting the laws that shape the work of the criminal justice system. As has already been emphasized, although an imperfect tool, legal change has played a crucial role in the United States and worldwide in increasing the rights of marginalized groups, forbidding discrimination, and facilitating equality of opportunity. But women remain significantly underrepresented in politics and in decision-making roles within the law (American Bar Association, 2014). “While women do not all see issues the same way, the shortage of women’s voices in national politics hinders attempts to alter the status quo and effect lasting changes in social and criminal justice legislation and policy” (Barak, Leighton, & Cotton, 2015, p. 2015). It is encouraging to note that women now constitute the majority of law students within the United States, but glass ceilings, discrimination, and resource inequalities continue to impede their movement into positions of political power. Some nations have established gender quotas to ensure fair representation of women in legislative bodies; in fact, “almost all countries with 30 percent or more women represented use some form of legal or voluntary quota system” (Peterson & Runyan, 2010, p. 109). Such changes are entirely possible to achieve when the political will exists to do so. Educational and cultural change must also be a focal point for transforming gender inequalities and also the field of criminology and criminal justice. Many parents and schools still segregate and divide boys and girls by socializing them for difference rather than for mutual and shared social experiences. Children today still see too few images of women as justice officials and men are still too frequently portrayed in the media and within popular culture as “naturally” violent. Many universities now have courses on gender and crime, women and crime, and violence against women, but attention to gender inequalities must be incorporated into all criminology courses to create real change. Students can aid this process by simply asking “and what about gender” in every criminology and criminal justice class they take. Universities must also create a welcoming environment for learning and professional advancement across gender constructions. Feminist pedagogy, which focuses on teaching in ways that are nonhierarchical, as well as respectful, and nurturing of all of our human capacities, has played an important role in the transformation of the academy from a place that reinforces gender norms to one where gendered binaries are routinely challenged. It is likely that educational change will continue to play a central role in transforming the field of criminology and criminal justice. Already, “at the graduate level, women are now a majority of degree recipients in criminology and criminal justice” and “as some observers point out, if these enrollment trends

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continue, women will constitute the majority of criminology and criminal justice faculty in the not-too-distant future” (Renzetti, 2013, p. 77). But long-lasting change can only be achieved if men play a leadership role as well; indeed, “true and lasting change will require – at a minimum – a critical and multicultural mass of men emerging to partner with women in confronting men’s violence on both a personal and institutional level” (Katz, 2006, p. 18). Achieving gender justice will also require significant structural changes in the global political economy. Neoliberal globalization, the decline of the social welfare state, and the continued perpetuation of race and class divides within the United States, and elsewhere, pose significant challenges to those who seek to reduce gender inequalities (Gottfried, 2013). “Unfortunately, many laws (and official policies) enacted in the modern era have differentially affected individuals, with the most marginalized offenders and victims having been and still being subject to the least beneficial effects of these laws” (Potter, 2015, p. 154). As has been illustrated in this chapter, laws and policies that seek to address gender without taking into account race, class, and other significant differences of power and privilege both between women and men and within each group risk imposing a new kind of “equality with a vengeance.” Self-reflection and personal transformation are also crucial if we are to liberate ourselves from the constraints imposed by socially constructed gender divides. The “personal is political” is one of the hallmark phrases of feminism. To reduce gender inequalities, change must happen not only in the political backroom, the boardroom, and the classroom but also in the living room, the kitchen, and bedroom. If gender is “accomplished,” then it follows logically that our daily choices about our personal relationships, approaches to parenting, conflict management tactics, communication styles, uses of language, and across a spectrum of everyday micropractices can shape and change how gender is constructed in each of these contexts. It is particularly crucial to give children the freedom to experience the full range of human capacities and to do so in home environments and societal contexts that are free from fear and violence. Justice professionals have a special duty to help reduce the power of gender inequalities in the administration of justice and in our workplaces. In our personal lives, we have a similar responsibility to free the children and adults in our lives—and indeed ourselves—from the constraints of gender divides. We owe it to those we love; indeed, we owe it ourselves.

Questions for Review   1. What is gender and how does it differ from sex? How are the two concepts related?   2. What is meant by the idea that gender is “socially constructed” and how is gender created, enforced, and maintained?   3. Explain how law has been used to create and maintain gender inequalities, as well as how it has led to changing conceptions of gender.   4. How does the concept of “intersectionality” help to inform consideration of gender injustices?   5. How do gender inequalities shape criminal offending and gender-based victimization?   6. Within the justice system, should females and males be treated differently or identically?   7. What are some of the gender challenges associated with justice professions?

  8. How is globalization changing the nature of gender injustices, as well as opportunities for achieving greater justice?   9. What strategies could help to reduce gender inequalities and to achieve greater justice for all? 10. Consider your own identity. Discuss how your gender identity and expression have been shaped by the larger social structure, including such features as the time and place in which you were born, soft and hard social control, and the presence or absence of sexism and discrimination in social institution, and ways you organize your daily life to reduce the risk of gendered violence. Also discuss the extent of human agency you have over your gender identity—how much power do you have to change your identity?



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Lorber, J. (2006). The social construction of gender. In D. B. Grusky & S. Szelényi (Eds.), The inequality reader: Contemporary and foundational readings in race, class, and gender (pp. 276–283). Boulder, CO: Westview Press. Madriz, E. (1997). Nothing bad happens to good girls: Fear of crime in women’s lives. Berkeley, CA: University of California Press. Mallicoat, S. L. (2015). Women and crime: A text/reader. (2nd ed.). Thousand Oaks, CA: Sage Publications. Martin, S. E. & Jurik, N. (2007). Doing justice, doing gender: Women in legal and criminal justice occupations. Thousand Oaks, CA: Sage Publications. Meloy, M. L., & Miller, S. L. (2011). The victimization of women: Law, policies, and politics. New York: Oxford University Press. Messerschmidt, J. W. (1986). Capitalism, patriarchy and crime: Toward a socialist feminist criminology. Lanham, MD: Rowman & Littlefield. Messerschmidt, J. W. (1993). Masculinities and crime: Critique and reconceptualization of theory. Lanham, MD: Rowman & Littlefield. Messerschmidt, J. W. (2004). Flesh & blood: Adolescent gender diversity and violence. Lanham, MD: Rowman & Littlefield. Messerschmidt, J. W. (2013). Crime as structured action: Doing masculinities, race, class, sexuality, and crime. Lanham, MD: Rowman & Littlefield. Messerschmidt, J. W. (2015). Masculinities in the making: From the local to the global. Lanham, MD: Rowman & Littlefield. Michalowski, R. (1985). Order, law and crime. New York: Random House. Michalowski, R., & Kramer, R. C. (2006). State–corporate crime: Wrongdoing at the intersection of business and government. New Brunswick, NJ: Rutgers University Press. Milaniak, I., & Widom, C. S. (2014). Does child abuse and neglect increase risk for perpetration of violence inside and outside the home? Psychology of Violence, 5(3), 246–255. Mohanty, C. T. (2013). Transnational feminist crossings: On neoliberalism and radical critique. Signs, 38(4), 697–991. Perry, B. D., Pollard, R. A., Blakley, T. L., Baker, W. L., & Vigalente, D. (1995). Childhood trauma, the neurobiology of adaptation, and ‘use-dependent’ development of the brain: How ‘states’ become ‘traits.’ Infant Mental Health Journal, 16(4), 271–291. Peterson, S. V., & Runyan, A. S. (2010). Global gender issues in the new millennium. Boulder, CO: Westview Press. Pickering, S. (2011). Women, borders and violence: Current issues in asylum, forced migration, and trafficking. New York: Springer. Potter, H. (2015). Intersectionality and criminology: Disrupting and revolutionizing studies of crime. New York: Routledge.

Reaves, B. A. (2015). Local police departments, 2013: Personnel, policies, and practices. U.S. Department of Justice, Office of Justice Programs. Washington, DC: Bureau of Justice Statistics. Renzetti, C. M. (2013). Feminist criminology. New York: Routledge. Richie, B. E. (2012). Arrested justice: Black women, violence, and America’s prison nation. New York: New York University Press. Rios, V. (2011). Punished: Policing the lives of black and Latino boys. New York: New York University Press. Segrave, M., Milivojevic, S., & Pickering, S. (2009). Sex trafficking. Cullompton, UK: Willan. Schwendinger, J., & Schwendinger, H. (1983). Rape and inequality. Newbury Park, CA: Sage Publications. Sheffield, C. J. (2007). Sexual terrorism. In L. L. O’Toole, J. R. Schiffman, & M. L. Kiter Edwards (Eds.), Gender violence: Interdisciplinary perspectives (pp. 111–130). New York: New York University Press. Simon, R. (1977). Women and crime. D.C. Health Canada Limited. Stanko, E. (1986). Intimate intrusions. London: Routledge & Kegan Paul. Strauss, M. (2010). Prevalence, society causes, and trends in corporal punishment by parents in world perspective. Law and Contemporary Problems, 73(1): 1–30. True, J. (2012). The political economy of violence against women. New York: Oxford University Press. Van Gundy, A., & Kappeler, V. (2009). Feminist theory, crime and social justice. Amsterdam: Elsevier. Weigman, R. (2012). Object lessons. Durham, NC: Duke University Press. West, C., & Zimmerman, D. H. (1987). Doing gender. Gender & Society, 1(2), 125–151. West, C., & Fenstermaker, S. (1995). Doing difference. Gender & Society, 9(1), 8–37. Widom, C. S. (1995). Victims of childhood sexual abuse— Later criminal consequences. Research in Brief, National Institute of Justice, U.S. Department of Justice. Wonders, N. A. (1999). Postmodern feminist criminology and social justice. In B. Arrigo (Ed.), Social justice/ criminal justice: The maturation of critical theory in law, crime, and deviance. Belmont, CA: Wadsworth. Wonders, N. A., & Danner, M. J. E. (2002). Globalization, state–corporate crime, and women: The strategic role of women’s NGOs in the new world order. In G. W. Potter (Ed.), Controversies in white collar crime (pp. 165–184). New York: Anderson. Wonders, N. A., & Danner, M. J. E. (2015). Gendering climate change: A feminist criminological perspective. Critical Criminology, 23(4), 401–416. Wonders, N. A., & Michalowski, R. (2001). Bodies, borders and sex tourism in a globalized world: A tale of two cities—Amsterdam and Havana. Social Problems, 48(4), 546–572.

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Sexual Orientation, Gender Identity, and Justice Lynn Jones and Sarah Prior

Chapter Objectives • Examine the relationship between sexual orientation, gender identity, crime, and justice. • Analyze how sexual orientation and gender identity (and gender expression) are socially constructed, and how these socially constructed differences are maintained or challenged through law, norms, and justice practices. • Identify the ways in which sexual orientation, gender identity, and gender expression intersect with other socially constructed differences to create unequal patterns of victimization. • Consider the ways in which laws and justice practices serve to criminalize sexual orientation and gender identity for sexual minorities and gender nonconforming individuals. • Describe the experiences of offenders, victims, and justice professionals that reflect sexual orientation and gender identity difference. The social construction of sexual and gender identities has changed historically and continues to evolve within the United States and around the world. Nevertheless, sexual and gender identities impact the experiences that individuals have within the justice system as offenders, victims, and workers. Cultural norms and institutional practices shape what is viewed as “normal,” while regulating the “other,” and this means differential victimization risks for sexual and gender minorities. Research evidences that lesbian, gay, bisexual, transgender, and queer1 (LGBTQ) individuals continue to experience mistreatment and criminalization by the criminal justice system and in society (Herek & McLemore, 2013). Social events and legal changes continue to alter victimization rates, legal challenges, and the criminalization of sexual orientation and gender identity and expression in the United States and around the world. Gallup polling suggests that the percentage of adults in the United States who selfidentify as lesbian, gay, bisexual, or transgender remains relatively small at about 4% nationally (Williams Institute, 2015). Twenty-five years ago, there were lower rates at which men self-identified as gay (2.8%) or women self-identified as lesbian (1.4%), though measurement instruments varied (Laumann, Gagnon, Michael, & Michaels, 1994, as cited in Black, Gates, Sanders, & Taylor, 2000). Younger people aged 18–29 are more likely (about 8%) than older people to self-identify as LGBT, and because non-whites tend to be younger than 1 In this chapter, we will use both LGBT and LGBTQ as ways of describing individuals who are lesbian, gay, bisexual, transgender, and queer as a reflection of how these terms are used in the relevant research. While there remains some debate over the most appropriate “letters” to use, “LGBT” is the most common in academic literature and media standards, whereas “LGBTQ” is thought to reflect a more critical view and experience (such as for people of color), and inclusion of “queer” can mean anything outside the dominant narrative of sexual orientation and gender identity (Grisham, 2015). While it is best to use terms in the same way that individuals first identify themselves, in this chapter we use the more widely accepted LGBT abbreviation.

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whites, we also see a disproportionate representation of racial and ethnic minorities who consider themselves LGBT (Williams Institute, 2015). Slight increases demographically in the self-identification of sexual minorities in recent years may reflect growing public support for and understanding of difference associated with sexual orientation and nonconforming gender expression (Norton & Herek, 2013). For example, a 2014 survey of registered voters found that 63% favor federal legal protections of LGBT people from employment discrimination. Gallup research also shows a change over time in whether people view gay and lesbian relations as morally acceptable or morally wrong: in 2015, 63% responded morally acceptable (versus 34% saying morally wrong) compared to 2001 data when 40% responded morally acceptable versus 53% saying morally wrong (Gallup, 2015). Such measures of public opinion may provide some insight into how people define and give meaning to sexual orientation, gender identity, and related issues of rights and inequality.

Constructing Sexual Orientation and Gender Identity Typically, the concept of sexual orientation refers to the enduring romantic, physical, or sexual attraction to individuals of the same or other sex, and we use terms like gay, lesbian, bisexual, and heterosexual or straight to define this characteristic reflecting whom you love or your sexual interests. Sexual orientation, like gender, is socially constructed; it is not an automatic reflection of biological sex organs or characteristics. Much like the gender system that privileges being male and masculinity while constructing female and femininity as different and therefore “othered” and disadvantaged, the construction of heterosexuality as the normal or preferred sexual orientation—or heteronormativity—means that “homosexuality” becomes “other.” Heteronormativity refers to the “mundane, everyday ways that heterosexuality is privileged and taken for granted as normal and natural” (Myers & Raymond, 2010, p. 168). This is a form of normative privilege, as described in Chapter 2. With heteronormativity, we normalize behaviors and societal expectations that presume heterosexuality to be the only sexual orientation, with a view that one’s “natural” role in life reflects a strict division of gender (or gender binary of men and women), and that sexual relations and attraction align with biological sex. It is a combination of cultural, legal, and institutional practices that “maintain normative assumptions that there are two and only two genders, that gender reflects biological sex, and that only sexual attraction between these ‘opposite’ genders is natural and acceptable” (Schilt & Westbrook, 2009, p. 441). In this context, anyone who deviates from this standard such as by performing gender differently is challenging the strict gender binary, and those who act according to predominant gender and sexual expectations are reinforcing heteronormativity. Institutions and cultural norms privilege heterosexual relationships, and characterize individuals who are lesbian, gay, bisexual, transgender, or queer as different; efforts to enforce and maintain this socially constructed divide create bias and discrimination in the workplace, and in the justice system as victims and offenders, as well as in broader society with the valuing of certain family types. Heteronormativity is perpetuated in and through a number of social institutions in the United States and around the world, including educational institutions, legal institutions, and through popular media. Even a socially constructed meaning of a sexual orientation binary as heterosexual and “homosexual” can further marginalize other sexualities such as bisexual, in which a person is attracted to both men and women, or pansexual in which a person is attracted to any sex or gender identity (Valentine, 2016). In other words, self-expressions and sexual attractions that are fluid or otherwise do not conform to the norm tend to be stigmatized. Research has evidenced that negative attitudes toward transgender people are correlated with endorsement of a binary conception of gender (Norton & Herek, 2013). Further, the



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norms and laws that implement the concept of hegemonic masculinity2 limit nonconforming expressions of masculinity (Kurtz, 2008) such as by failing to include protections for gay and transgender individuals who express masculinity “differently.” It is important to point out that though there are some general qualities about hegemonic masculinity as a “form of social power,” it takes on different meanings based on historical and social–spatial modalities (“in terms of class, ethnoracial, sexual, and age variations”) (McGuffey & Rich, 1999, p. 608). Such ideas about sexual orientation also ignore the important way in which intersectional identities matter for understanding individual’s experiences of sexuality. Homophobic, sexist, and racist stereotypes overlap as social interactions create strict enforcement of conformity to a gendered sexual dichotomy (Valentine, 2016). The gendered sexual binary or dichotomy is perpetuated through both heteronormativity and hegemonic masculinity (Connell & Messerschmidt, 2005; Myers & Raymond, 2010). The preferred terms to use when describing individuals who are attracted to members of the same sex are gay (for men) or lesbian (for women). Advocates and some leading media outlets limit use of the term “homosexuality” or place it in quotation marks because of the historic—and now discredited—meaning associating gay people with a psychological disorder (GLAAD, 2016). Similarly, the term sexual orientation is preferred over sexual “preference” or “gay lifestyle” (which are viewed by some as examples of microaggressions) due to the implication with “preference” that being lesbian, gay, or bisexual is a choice and should be “cured” or brought into line with heteronormative expression. However, individuals may describe their own sexual orientation in terms of preference and/or choice, which is often a means of preserving their own human agency. Importantly here, similar to gender identity pronouns, there are general ways in which we talk about individuals that may differ from the ways they identify or describe their own experiences. Some use the term gender and sexual minorities as an inclusive umbrella concept for all people whose behavior is not heterosexual; similarly, the term queer describes anyone “whose behavior or expression challenges notions of binary gender and/or heteronormative constructs” (Buist & Lenning, 2016, p. xviii). It is important to remember that homophobia reflects a construction of “other” sexual orientations as inferior and therefore “inappropriate” performances of sexuality (Perry, 2003). Michael Kimmel (2007) characterizes homophobia and the use of anti-gay name calling as a building block of masculinity: it is a fear that someone will think you are not a real man, and acting tough and violent is often the way to prove that you are not a sissy or gay. This impacts how boys and men do gender or present their maleness in social interactions; as well, they police each other with jokes, teasing, and physical punishments for appearing stereotypically feminine or gay. Kimmel explains homophobia as the fear of being perceived as gay, which leads heterosexual men to exaggerate their masculinity, including by not acting emotionally weak and with constant demonstration of sexual interest in every woman they meet (2007, p. 88). Pascoe (2007) further described this concept when discussing the ways in which boys and men use the “fag discourse” as a means of policing the borders of masculinity through sexualized homophobic discourse. For Pascoe (2007), when boys and men utilize this kind of “fag discourse,” or throw around similar terms, it is not necessarily about sexual orientation, but rather about critiquing the other boy for not fitting appropriate gender expectations or not being man enough. Similarly, women and girls who step outside perceived femininity, such as by 2 Hegemonic masculinity exists at the top of a hierarchy of other types of masculinity (subordinate, complicit, oppositional, and marginalized masculinities) and in relation to “emphasized femininity” (Connell & Messerschmidt, 2005) as the “subordinated position of women to men that involves accommodating men” (Potter, 2015, p. 22). Subordinate masculinities may reflect norms more typically associated with femininity, or represent racialized caricatures of gender norms within subordinated social groups. Complicit masculinity is the benefit that men receive from hegemonic masculinity without actually participating in those dominant forms of masculinity. Oppositional masculinities are those that are constructed by men who are not able to accomplish culturally acceptable forms of masculinity, so instead rework hegemonic masculinity to an achievable goal, and marginalized masculinities can be a variety of things including the way marginalized people attempt to pass within dominant construction of masculinity or the way marginalized people commodify their marginality into masculine performance (Connell, 2002).

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playing sports or serving in the military, may be labeled lesbians. Historically, the pejorative use of such labels enforced and maintained the gender binary, while also restricting human agency and choice over sexual expression. Here, we see the strong overlap between normative pressures and stereotypes that are both sexist and anti-gay. Gender identity refers to individuals’ self-concept and beliefs about whether they are male, female, a combination of both, or neither; one’s gender identity can be the same or different from one’s assigned sex. Transgender refers to people who express and identify their gender as different from cultural and social expectations associated with their biological or birth sex. A transgender woman is a woman who was born with sex characteristics historically classified as male, and a transgender man is a man who was born with female sex characteristics. The terms gender variant and gender nonconforming are other ways in which transgender people might choose to describe their gender identity or gender expression—these terms highlight the public performance of masculinity or femininity (Meyer, 2009). Among Native Americans, different tribal languages identified third genders that encompassed both the masculine and the feminine or were thought to be cross-gender, and the term “two spirit” originated in 1990 at a Native American/First Nations gay and lesbian conference as a way to encompass Native American LGBTQ individuals and Native American ideas about gender (Jacobs, Thomas, & Lang, 1997; Pullin, 2014). The social media site Facebook evolved by allowing its users to self-identify as something other than male or female, and it includes “two spirit” as one of its dozens of options (Weber, 2014). Cisgender is a recently used term that refers to those individuals whose gender identity is consistent with the gender they were assigned at birth (Brydum, 2015; Buist & Lenning, 2016); this is often used to connote the opposite of transgender, or not transgender. Some challenge this term as labeling and recreating a binary view of gender, even though a different one from the male–female binary. Others feel that the usage of phrases such as “cisgender lesbian” tends to denigrate someone who is not transgender (Tannehill, 2014) and suggest saying “non-transgender” as needed. Being transgender does not mean a person has a particular sexual orientation (Forbes, 2014, p. 388). A transgender person might identify as lesbian, gay, bisexual, heterosexual, asexual, or pansexual. Some may wonder why a transgender identity is often discussed along with lesbian, gay, bisexual, and queer (LGBQ) as “LGBTQ” even though gender identity is not necessarily related to sexual orientation. Gender expression and sexual expression are often conflated as one. While the two are related, they are by no means the same. Transgender refers to the external expression of one’s gender identity, so why include it with other sexual orientation identities rather than in a chapter on gender or discussions about the male/female binary? In part, researchers and activists include transgender with LGBQ because of the shared experience of stigma and discrimination associated with the fact that transgender individuals sometimes express gender identity in ways that may not conform to the socially accepted meaning of male or female. The history of gay rights has long included transgender or gender variant individuals and their experiences, particularly because of historic practices and enforcement of laws that targeted gender transgressive behavior along with same-sex sexual behaviors (Buist & Stone, 2014). At the level of everyday experience, the violence and anti-gay language thrown at individuals often does not distinguish gender identity and sexual orientation, such as when a transgender person is called an anti-gay slur. While some advocates of LGBT rights suggest that gay and transgender issues are different and perhaps should be separated, most national advocacy organizations are multi-issue in emphasis and have embraced the continued inclusion of transgender concerns due to the historical shared experience among LGBTQ individuals. Many also point out that in spite of the political gains and increased social acceptance for lesbian, gay, and bisexual individuals, transgender people still experience lack of inclusion in cultural norms and face barriers to equal rights and protection under law.



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While this chapter focuses on the experiences of those individuals that are marginalized due to their sexual orientation and/or gender identity expression, we also recognize that legal and criminal sanctions have historically been applied to those in heterosexual partnerships as well. However, those sanctions were based not on sexual expression, but rather on other intersecting identities. For example, until 1967 it was illegal for interracial heterosexual couples to marry. The landmark case of Loving v. Virginia struck down anti-miscegenation laws that prohibited interracial marriage. Additionally, many states that had sodomy laws or “crimes against nature” laws were not solely limited to homosexual sex acts. Rather, many of these states included any non-penile/vaginal intercourse (i.e., oral and/or anal sex) that can be applied to both homosexual and heterosexual individuals. Additionally, while homosexual couples have been discriminated against historically in terms of marriage rights and all of the legal benefits that correspond with being married (as will be further discussed below), those same benefits are denied to heterosexual couples who are not married (by choice or necessity). Inheritance rights, guardianships, and other benefits are not guaranteed to unmarried heterosexual partners. One main difference between the experiences of legal regulations between heterosexual and homosexual couples is that, historically, heterosexual couples have not experienced the same kinds of violence as their nonheterosexual counterparts.

The Status of LGBTQ Individuals in Criminology and Under Law Historically, the field of criminology was quite limited in its focus on LGBT people’s experiences of crime as offenders or victims (Woods, 2014). While more recent research has included LGBTQ individuals, it has tended to focus narrowly on a few forms of victimization, such as intimate partner violence or hate/bias crimes (Herek, Cogan, & Gillis, 2003; Perry, 2001, 2003). While these forms of victimization are worthy of attention, a limited view of LGBT individuals’ victimization further marginalizes their experiences with justice and often reinforces stereotypes regarding gender and sexual norms. More recently, criminologists have placed greater emphasis on the range of victimization experiences of LGBT people. There has been scholarly attention to the different contexts in which LGBT people commit crimes or become criminalized (Buist & Stone, 2014), how they interact with police and other justice professionals (Dwyer, 2011, 2014; Holsinger & Hodge, 2016; Myers, Forest, & Miller, 2004), and what their varied experiences are when incarcerated (Belknap, Holsinger, & Little, 2014; Jenness & Fenstermaker, 2014; Swan, 2014). Every society has particular normative expectations regarding sexual relationships between people, and evidence from cross-cultural and historical research suggests that sexual “deviance” is a relative concept and of greater concern to Western societies, which work at enforcing “normality” (Davis & Whitten, 1987). In many cultures and throughout human history, there has been acceptance of a wider range of sexual partnerships and gender identity/expression. Some examples include Japanese Samurai warriors in homosexual relationships, cross-gender behavior among twospirit people and indigenous groups in Latin America and the Philippines, and samesex mentoring relationships between adults and adolescents in many African and Asian countries—which are culturally and criminally forbidden in the United States—that have sexual and economic/social functions (Davis & Whitten, 1987). This cross-­ cultural evidence of the varied meanings of sexual and gender variation contrasts with the more narrow view of sexual orientation and gender expression in the United States. Prior to the 1970s, the common socially constructed view of LGBT people in the United States included terms like perverts or deviants, or sinners under religious rules (Woods, 2014, p. 17). In the fields of sociology, psychology, and criminology,

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researchers defined LGBT people with theories about deviance, or classifications as a “sociopathic personality disturbance” such as in the 1952 American Psychological Association Diagnostic and Statistical Manual of Mental Disorders (DSM-I). Psychologists removed homosexuality from the DSM in 1973 amid the awareness and changing sociopolitical context supporting activism in the gay rights movement, as well as growing research evidencing that homosexuality was a “normal” and common variation of human sexual behavior—not a pathology (Katz, 2007). While scientific research increased understanding of different sexual identities and relationships, the socially constructed and distorted meanings of such differences reflected persistent stereotypes and homophobia. Legal and religious prohibitions of sexual acts other than intercourse between a man and a woman sustained this view of the “unnatural” sexual activity of gay men, lesbians, and bisexuals. The law has contributed to the social construction of LGBT identities and shaped experiences of LGBT individuals while creating heterosexual identities as normative. In fact, there are many examples of uses of law to create—and also to challenge— “difference”; this turn toward law evidences the political struggle that is at the heart of controversies over sexual and gender identities and rights. As noted earlier in Chapter 2, law maintains difference as it categorizes people according to perceived “natural” differences, thus reinforcing the value of one set of individuals over another through political struggle. At the same time, the law can be the tool and location of changes that help to redefine and reconstruct difference by extending rights or addressing previous discrimination. Since the 1990s, political efforts by conservatives aimed at state legislatures created a set of primarily discriminatory state laws related to sexual orientation, such as with states defining marriage in heterosexual terms only (one man/one woman). Some suggest that the AIDS panic would function as “a pretext for a social backlash against the civil rights of gays” (O’Neill, 1990), and it seems that “unsafe sex”—while a real health concern—became a way for conservatives to politicize their concerns about family and religious values in the context of burgeoning gay activism. State sodomy laws, which criminalized sexual acts other than intercourse, were selectively enforced only against gay people even though these laws also banned sexual activity other than intercourse for heterosexual couples as well. Such laws were upheld by the Supreme Court decision in Bowers v. Hardwick (1986), which reinforced sexual orientation inequality by narrowly defining the legal issue as one about “homosexual” sodomy as against morality and “a crime not fit to be named” (Hardwick, 478 U.S. at 194, cited in Calhoun, 1995, p. 249). In spite of, and perhaps because of, this ruling that highlighted the inherent selective enforcement of such laws and the protection of heterosexual couples from prosecution, many states began to repeal their laws. In 2003, the Lawrence v. Texas decision by the Court declared any such remaining laws as unconstitutional under the right to liberty under the Due Process Clause of the Fourteenth Amendment, thus protecting adult consensual private activity. While many hail this as an important decision that removed previous criminalization of gay individuals, there remained a persistent challenge to full acceptance and tolerance of LGBTQ individuals (and other criminalization will be discussed below in the section on offending). In the wake of the horrific execution-style deaths of Matthew Shepard and James Byrd, the 2009 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act expanded federal hate crimes law to include protections for sexual orientation, gender, and gender identity. Matthew Shepard was tortured and murdered in 1998 near Laramie, Wyoming, because he was gay. The assailants in the crime used the “gay panic” defense (Lee, 2008). The law was also named for James Byrd Jr., an African American, who was tied and dragged behind a truck, thus leading to his decapitation, by two white supremacists in Jasper, Texas, in 1998. The Violence Against Women Act Reauthorization in 2013 included targeted attention to be more inclusive in prevention



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and services for LGBT victims; this law explicitly bars discrimination on the basis of actual or perceived gender identity or sexual orientation in service delivery to victims of dating and domestic violence, sexual assault, and stalking. Beyond laws aimed at victimization protection, some hate groups are monitored and challenged by the Southern Poverty Law Center, which engages in legal efforts to protect the rights of the LGBT community. The kinds of legal cases they have worked on reflect efforts to remove barriers to equality under law, such as ensuring parental and adoption rights of LGBT people, protecting the right to medical treatment and safe housing for transgender prisoners, protecting LGBT children from violence and harassment at school, and challenging as fraudulent businesses that promote “conversion therapy” to change a person’s sexual orientation and address their “mental disorder” (Southern Poverty Law Center, 2016). While these efforts are important for securing legal rights, they also offer important symbolic value as they reconstruct the meaning of sexual orientation difference in a more positive way, with a focus on equal rights. There is significant variation within the United States at the state and local levels. In general, states with proportionally larger LGBT populations tend to have legal climates supportive of LGBT individuals and rights, such as laws that prohibit discrimination based on sexual orientation and gender identity (Gates & Newport, 2013). Until the mid-1990s, gay rights activists were not focused on marriage because they did not think it was even a remote possibility due to the dominance of the religious right and its cultural claims against same-sex marriage (Dorf & Tarrow, 2014; Fetner, 2008). Marriage equality became one of the dominant legal issues for LGBTQ activists during the period following the Lawrence decision, when activists saw a legal opening and the voting public began to refuse the religious conservatives’ limited view of marriage and sexual orientation (Dorf & Tarrow, 2014). Massachusetts became the first state to allow same-sex marriage in 2003, with other attempts to issue gay marriage licenses in California, Oregon, New York, and New Mexico ultimately invalidated under law. In the period between 2004 and 2006, voters in 21 states approved constitutional amendments banning same-sex marriage (Pew Research Center, 2015). Arizona in 2006 became the first state to reject such a constitutional amendment; yet in 2008, voters in both Arizona and Florida approved bans on same-sex marriage. In 2012, widespread efforts by marriage equality activists targeted state legislatures and courts to strike down marriage bans or change state constitutional language, building on the apparent opportunity evidenced by a few favorable court outcomes in Iowa and California. Popular vote approval of same-sex marriage was achieved in Maine, Maryland, and Washington, and the Supreme Court ruling in Windsor v. United States (2013) struck down some of the Defense of Marriage Act (DOMA) as an unconstitutional denial of Fifth Amendment due process protections. In this case, Edie Windsor had petitioned for legal recognition of her marriage after her spouse died and left her a significant inheritance, in which legal marital status would exempt any estate taxes. The ruling in Windsor required recognition of same-sex marriages from the states where they are legal, and was seen by many as an important shift in the legal and socially constructed status of LGBTQ people. By 2014, about two-thirds of the states permitted gay marriage or same-sex unions. Yet, state laws remained inconsistent and contradictory, and the federal Circuit Courts of Appeals disagreed on state bans on same-sex marriage; thus, it was not surprising that the U.S. Supreme Court agreed to hear another case related to the constitutionality of these bans on gay marriage. In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment to the Constitution requires states to allow same-sex couples to marry on the same basis as heterosexuals, which effectively legalized same-sex marriages and ended the bans that remained in 14 states. Also with this legal ruling, states cannot restrict marriage based on gender, so transgender people should be able to marry unless other barriers prevent them from doing

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so. Some religious organizations criticized this decision, and a few local government officials made headlines for refusing to issue marriage licenses on the basis of their religious beliefs. Some political actors continue to defy the U.S. Supreme Court decision, such as Alabama’s Chief Justice ordering that state law be followed and that lower court judges be banned from issuing marriage licenses to same-sex couples (Edelman, 2016). In 2015 and early 2016, a number of “religious liberty” laws were proposed in about a dozen states, arguably as a direct response to legal changes that favor lesbian and gay people’s right to marry and be free from discrimination. It is important to note that the fight for marriage equality is not just about marriage, particularly given that many non-heterosexual couples have no desire to get married. However, the fight for marriage equality encompasses broader issues such as parental rights, inheritance, and medical benefits, among others, and the continuing controversy is about the political struggle over who has the power to define law and rights. Even though the Court’s decision brought marriage equality to all 50 states, there is legal variation and inconsistency across states regarding protections from discrimination for LGBTQ individuals, such as being denied housing or losing one’s job. Introduced in Congress in 2015, the proposed Equality Act would amend the 1964 Civil Rights Act to include sexual orientation and gender identity, thus creating “explicit, permanent protections against discrimination based on an individual’s sexual orientation or gender identity in matters of employment, housing, access to ­public places, federal funding, credit, education and jury service” (Human Rights Campaign, 2015). Many view 2015 as the year in which transgender people achieved greater acceptance due to increased public awareness with the proliferation of positive Hollywood fictional portrayals including Transparent and The Danish Girl, reality television shows I Am Jazz, Becoming Us, and I Am Cait, and celebrities such as Laverne Cox and Caitlyn Jenner making news. Laverne Cox is a Hollywood transgender actress and vocal transgender advocate who stars on the hit Netflix series Orange is the New Black, based on the popular memoir of the same name. Caitlyn Jenner is the star of the reality TV show I Am Cait and was a former Olympic gold medalist, who is father and stepfather to the Jenner and Kardashian children, respectively. Jenner’s transition made headlines given her previous reality show stardom and famous family. However, in both 2015 and 2016, we have seen 44 anti-transgender bills introduced in 16 states, with dozens more in the works and a few that have been signed into law (Human Rights Campaign, 2016). Mississippi’s new law allows workers, on the basis of their religious beliefs, to deny services to gay, lesbian, bisexual, and transgender individuals. In the controversial “bathroom bill” law enacted in North Carolina, individuals can use only the public bathroom facilities that match the sex on their birth certificate. In other words, transgender people can use bathrooms based on their gender identity only if they are able to change the biological sex on their birth certificate. Some critics have identified the old, yet redeployed, fears and stereotypes associated with “different” sexual and gender identities, in this case a narrative that we are all at risk of the sexual predator who can “turn gay” (Dennis, 2014) or transgender and victimize women and children in bathrooms. These laws are not in response to any evidence-based real threat; in fact, evidence suggests that heterosexuals are more often charged with sex offenses. Such laws are about lingering perceived and socially constructed meanings regarding sexual and gender identity “deviance.” Some question whether they will be enforced much like anti-immigration laws (see Chapter 14), in which individuals are required to prove their sex identity by showing papers such as a birth certificate. Very similar to the use of “sexual terrorism” of women as discussed in Chapter 6, media reports suggest that transgender people are terrified and have stopped using public restrooms (Michaels, 2016); this real creation of fear can be contrasted with imagined threats that led to such laws.



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In 2016, both of these laws faced public backlash by those who criticized them as anti-LGBT discriminatory laws, and the media reported numerous boycotts by large companies and celebrities who canceled their planned activities in the state (e.g., Bruce Springsteen and Ringo Starr canceled concerts in North Carolina; Sharon Stone canceled plans to film on location in Mississippi). Some transgender legal advocates expect these laws to be overturned due to this economic and political pressure, and also because federal laws and guidance under Title IX have held that legal protections against sex discrimination include discrimination against transgender people for gender nonconformity (Weiss, 2016). The U.S. Department of Justice warned that laws limiting access to bathrooms for transgender people are in violation of federal law under Title VII, which prohibits discrimination on the basis of sex (Lichtblau, 2016). In response to the debate regarding laws undermining LGBT rights, the retailer Target publicly supported the federal Equality Act protecting LGBT individuals from discrimination, stating that transgender individuals (employees and shoppers) “deserve to be protected from discrimination, and treated equally” and are welcome “to use the restroom or fitting room facility that corresponds with their gender identity” (Target, 2016). For transgender and gender nonconforming individuals, the bathroom has always been a scary place. Bathrooms are one of the many places where gender is explicitly policed—and often violently (Antony, 1998; Halberstam, 1998). The Human Rights Campaign, an organization that works for LGBT rights and legal reform, notes that 2015 also saw increased anti-transgender violence, particularly against transgender women of color (2016, p. 1), as discussed more thoroughly in the textbox. Even as public awareness and acceptance appears to be shifting toward a positive reconstruction of transgender difference, there remain persistent opposing views that drive anti-LGBT bias victimization and continued anti-LGBT legal efforts by many state legislatures. Across the globe, LGBT activists challenge the discrimination, violence, and criminalizing of gay, lesbian, and transgender individuals by describing themselves as a “planetary minority” that is being denied equal human rights (Amnesty International, 2001). Even as Ireland voted to legalize same-sex marriage in 2015, there are still about 75 countries that punish people simply for being gay, engaging in same-sex sexual behaviors, or expressing gender nonconformity (see Erasing 76 Crimes, 2016). Such punishments, which occur in countries mostly in Asia and Africa, include forced psychiatric treatment, life terms in prison, death sentences, or public deaths, such as by stoning. In 2013, Russia enacted legislation prohibiting “gay propaganda.” In Africa, countries such as Uganda have enacted and enforced laws criminalizing homosexual acts, with police being tasked with physical examinations of male individuals to determine whether they had engaged in gay sex. Consequences for violating these acts have resulted in significant violence, even death. Many countries around the world include constitutional protections for individuals based on race and gender, but—like in the United States—the addition of protections for gender identity/expression and sexual orientation is newer and still evolving. Without full human rights legal protections, LGBTQ individuals around the world continue to experience harassment, bias-motivated violence, and abuse by the very justice officials who could be protecting them. Given the violence directed toward LGBTQ individuals in many countries, those who occupy positions of privilege often play an essential role as allies in the struggle for equal rights and social change. Further legal contexts related to victimization are discussed below.

Victimization: Sexual Orientation, Gender Identity, and Gender Expression Over the life course, some of the earliest types of victimization experienced by individuals who are lesbian, gay, bisexual, or transgender are bullying and harassment in schools, with middle school years reflecting the highest frequencies of such

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victimization. Existing research demonstrates that more rigid adherence to traditional sex roles and gender stereotypes correlates with negative perceptions of gays and lesbians, and violent behavior toward them (Meyer, 2009). In other words, the socially constructed meaning of femininity and masculinity, along with heteronormativity, and the ways these ideas play out in school settings are central to much anti-LGBTQ bullying and harassment behavior. A significant majority of LGBTQ students routinely hear anti-LGBT language at school, including homophobic slurs (e.g., “dyke” or “faggot”) and negative comments about gender expression such as not appearing sufficiently masculine or feminine. Using sexist and heterosexist language, gender stereotyping, and assuming abnormality are all examples of microaggressions toward gay, lesbian, bisexual, and transgender individuals (Nadal, Rivera, & Corpus, 2010; Sue, 2010a, 2010b). School sexual education programs that promote abstinence only and neglect or discourage any expression of sexuality beyond the heterosexual normative create negative impacts for young people who do not identify as heterosexual or who wish to explore or experiment with same-sex sexuality or desires (Fields, 2008; Garcia, 2009; Irvine, 2004). In findings from the 2013 National School Climate Survey, students who are LGBT experienced verbal harassment because of their sexual orientation and gender expression (74.1% and 55.2%, respectively), encountered physical harassment (36.2% and 22.7%) and assaults (16.5% and 11.4 %), and 49% of LGBT students experienced cyberbullying via text messages or Facebook postings (Kosciw, Greytak, Palmer, & Boesen, 2014). Yet, it is concerning that more than half of students who were harassed or assaulted in school did not report the incident to school officials, and of those who did report, nearly two-thirds said that school staff did nothing in response (Kosciw et al., 2014). The consequences of harassment based on sexual orientation and gender expression are more severe than other bullying or harassment not associated with anti-LGBT bias. LGBT students who are harassed are at high risk for academic difficulties (e.g., missing school, lower grades), drug and alcohol abuse, dropping out of school, depression, and suicide (Meyer, 2009). There has been a fair amount of media coverage of suicides of LGBT youth, sometimes with evidence of the apparent links to peer-based policing of gender and sexual norms (Meyer, 2009; Ware, 2011). Societal devaluing of the “other” associated with feminine performance means that nonconforming boys face greater bullying and harassment in schools than nonconforming girls. Transgender students face more hostile school climates and higher victimization when compared to lesbian, gay, and bisexual students (Kosciw et al., 2014). Bias related to gender identity and gender expression persists even among those LGB people who do not identify as transgender: “gender nonconformity has been found to be a predictor of both ‘every day discrimination’ and violence” (Gordon & Meyer, 2008, as cited in Mogul, Ritchie, & Whitlock, 2011, p. 122). The persistence of gendered and heteronormative expectations for boys and girls in our schools creates a hostile environment in which anti-LGBT victimization persists and is often ignored, minimized, or condoned by adults. Even if not directly targeting LGBT individuals, anti-gay harassment takes the form of heterosexist microaggressions that convey the constant message that LGBT “difference” is inferior to the more valued heterosexuality, which further perpetuates and shores up the privilege and power of heteronormativity (Nadal et al., 2010). An intersectional lens shows us how LGBT youth of color are more likely to be homeless, more likely to experience compounded victimization, and more likely to experience criminalization by teachers and justice officials (Hanssens, Moodie-Mills, Ritchie, Spade, & Vaid, 2014). While most states explicitly address bullying and harassment of students in schools, half of the states do not enumerate categories or characteristics of individuals frequently targeted, and fewer than half of states include sexual orientation and gender identity in anti-bullying statutes (see Human Rights Campaign website for current status). When laws do include specific categories such as gender identity and ­sexual



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orientation, students in those states report less bullying and teachers are better able to intervene (Warbelow & Cobb, 2014). When a teacher responds positively, such as an intervention that stops homophobic comments, students then reported less name calling and stronger feelings of school safety (California Safe Schools Coalition, 2004; Meyer, 2009). Further, when schools have a gay–straight alliance (GSA) or similar supportive club for students, the overall school climate is thought to improve: LGBT students at such schools report lower levels of anti-LGBT verbal harassment and other victimization, fewer report feeling unsafe at school, and more report that teachers or staff intervene to stop homophobic language (Kosciw et al., 2014). The good news is that LGBT-related resources and policy changes appear to be having a positive effect on reconstructing the school environment for LGBT students. Compared to earlier surveys conducted, anti-LGBT physical assaults have been declining since 2007, and verbal and physical harassment are at their lowest levels since 2001 (Kosciw et al., 2014). Beyond the school setting, adult individuals who self-report their sexual orientation as lesbian, gay, and bisexual have an equal or higher prevalence of being victims of sexual violence, intimate partner violence (IPV), and stalking compared to heterosexuals (Walters, Chen, & Breiding, 2013). LGBT people often experience sexual violence at an earlier age than heterosexuals, so the increased attention to sexual violence on college campuses should include the reality of sexual violence that happens to LGBT individuals in their early teens during middle school and high school. Bisexual women are particularly at risk of these forms of violence, experiencing higher lifetime prevalence than either lesbian or heterosexual women (Walters et al., 2013). For men, those who identify as bisexual or gay are about twice as likely as heterosexual men to experience sexual violence (Centers for Disease Control, 2013). Transgender people are also particularly vulnerable to intimate partner abuse from partners who punish a lack of gender conformity and reinforce gender norms through violence (Goodmark, 2013; Transgender Law Center, 2016). Outside of intimate relationships, violent bias or hate victimization, often labeled “gay bashing,” is rooted in heterosexism and “plays the dual role of reaffirming the perpetrator’s ability to ‘do gender,’ while simultaneously punishing the victim’s propensity to ‘do gender inappropriately’” (Perry, 2001, p. 106). By rejecting homosexuality as nonconforming and acting aggressively according to masculine norms, male perpetrators of anti-gay hate crimes are reinforcing heterosexual masculinity and norms governing sexual orientation (Bell & Perry, 2015; Bernstein, 2004; Kelley & Gruenewald, 2014). Existing research shows that anti-gay hate incidents are most likely to be perpetrated by individual males or groups of males rather than by mixed sex groups or female perpetrators (Stotzer, 2015). Anti-LGBT bias-motivated crimes are more violent than non-bias-motivated crimes, and they are more likely to be perpetrated in public and by strangers (Stotzer, 2014). Gay men are more likely than lesbians to be victims of bias crimes, and there is some evidence that “stereotypical” gay men who more visibly express their sexual orientation in ways that are more feminine are at greater risk of violent victimization (Stotzer, 2014). Violence against transgender women is characterized by their visibility as different and a “perception of gender transgression that motivates the attack” (Perry & Dyck, 2014b, p. 7). In other words, those who are discovered or publicly found out to be “not really female” are seen as failing to do gender appropriately and, thus, violence is used as a form of hard social control to enforce cultural norms. There is some evidence that perpetrators of such violence hold views that deeply align with a traditional gender binary, and they react violently to being “duped” by someone who is “both abandoning masculinity and choosing femininity” (Schilt & Westbrook, 2009, p. 461, as cited in Perry & Dyck, 2014b, p. 7). The majority of offenders of anti-LGBT hate crimes are white (NogaStyron, Reasons, & Peacock, 2012), which seems to underscore the importance of an intersectional view of such violence. Transgender women are aware that they are under

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greater scrutiny and at risk of ongoing verbal microaggressions and physical violence in their daily lives, so they become hypervigilant about their safety. Unfortunately, many transgender women, as they attempt to avoid certain locations and situations to remain safe, come to realize that they “don’t know where it is safe” as their families reject them, institutions exclude them, and people in public locations harass them (Perry & Dyck, 2014a, 2014b). In addition to the interpersonal violence described above, individuals who are LGBT also experience victimization as they interact with justice officials and institutions. The National Coalition of Anti-Violence Programs (NCAVP), a network of local LGBT advocacy organizations, compiles data on LGBT experiences with victimization and interactions in the justice system. LGBT victims who report to police are often faced with homophobic or transphobic verbal and physical attacks by the very police officers who are supposed to be protecting them and investigating their victimization (NCAVP, 2008). LGBT people of color also face the additional stereotyping by police associated with their perceived racial or ethnic status and suggest that police would treat them differently if they were white. Some police officers refuse to take anti-LGBT victimization seriously or file reports, and when reports are taken, officers often do not include the intimate partner dynamics or anti-LGBT motivation for the violence (Mogul et al., 2011). Advocacy organizations regularly report examples of LGBT individuals who report statements made by police that minimized their victimization experience, such as by profiling gender nonconforming people as masculine and “unable” to be victims, so they are arrested as perpetrators. Additionally, while police no longer victimize LGBT people as much as in the past, homophobia and heterosexism persist among many police organizations; thus, it is not surprising that LGBT victims of intimate partner violence are hesitant to go to police for help (Dwyer, 2011; NCAVP, 2015). Thus, even though federal law includes protections for LGBT victims, official police-reported data, such as in hate crime statistics through the FBI Uniform Crime Reports, likely underreport the full extent of the victimization experienced by LGBT individuals. Human rights organizations fill in some of the details: 15% of transgender individuals report being sexually assaulted while in police custody or jail, and this more than doubles to 32% for African-American transgender people. Five to nine percent of these sexual assaults were by police officers (Grant et al., 2011, footnote 4). Transgender women also report that they commonly experience homophobic and transphobic verbal abuse by police officers (Amnesty International, 2006). Transgender rights groups, such as the Sylvia Rivera Law Project (SRLP), argue that hate crime legislation—rather than protecting victims or preventing hate crimes—seems to “expose our communities to more danger—from prejudiced institutions far more powerful and pervasive than individual bigots” (as cited in Buist & Stone, 2014, p. 4). Outside of the United States, on a global scale, individuals claiming links to terrorist groups, or offering other political and religious motivations, have perpetrated recent violence against LGBT people. For example, in 2016, several journalists advocating for LGBT rights were stalked and killed in Bangladesh. Increased attention by researchers to the different social, cultural, and legal contexts for LGBT people in countries around the world, as well as the global reach of media and transnational social movements, is creating an informed response to sexual and gender inequalities. LGBT persons in prisons and in immigrant detention centers also are at risk of victimization by detention officers and other immigrants. Further, some research evidence suggests that heightened political rhetoric and maneuvers to prevent LGBT rights create a climate that motivates increased anti-LGBT bias crimes (Mogul et al., 2011). Similarly, for immigrants who are LGBT, and LGBT people of color, a racist and anti-immigrant climate puts these individuals at greater risk of violent hate victimization. Undocumented transgender individuals are at particular risk of intimate



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partner violence because their partners can threaten to contact police who may involve immigration officials; thus, victims avoid seeking help or medical care (NCAVP, 2015). The Violence Against Women Act (VAWA) Reauthorization in 2013 provided clear federal legal protection against discrimination based on sexual orientation and gender identity. With this change and additional federal guidelines for agencies, justice organizations and victim service agencies have greater clarity about creating more inclusive and nondiscriminatory practices (NCAVP, 2015). Yet, even though federal law has enacted improvements to the classification and data collection of hate crimes including anti-gay violence, there remains significant fear, distrust, and underreporting by LGBT victims. In fact, some suggest that the law’s focus on punishing individual criminal acts of hate is an insufficient response that ignores larger systemic and institutional norms and policies that help to create and sustain anti-gay prejudice and hate actions. Some recommend broader efforts to change normative practices and policies to benefit LGBT persons, including training teachers to better recognize and intervene against microaggressions, to include restorative justice programming in schools, to move away from policing deviance in schools or law enforcement, and to increase recruiting of LGBT persons into educational and justice positions (Hanssens et al., 2014). Using an intersectional approach to understand the impacts of legal and normative changes for LGBT persons will also point to the range of different experiences deserving further attention (Buist & Lenning, 2016).

Offending: Policing and Criminalizing Sexual Orientation and Gender Expression There is no single “gay” experience with the criminal justice system since race, class, and gender will also influence these interactions (Mogul et al., 2011); however, a focus on LGBT experiences in the justice system reminds us to disrupt heterosexual assumptions when discussing policing, victim advocacy, or court experiences. As noted earlier in the chapter, a stereotype-laden emphasis on the deviance of LGBT persons characterized early research, and more recent critical scholars have called for a queer criminology that involves “recognizing and highlighting the construction of Queer identities as deviant and criminal, questioning the state’s role in criminalizing sexual orientation and/or gender identity, or exploring the role of the criminal legal system as a mechanism for the social control of Queer identities” (Buist & Lenning, 2016, p. 4). Much criminological and sociological research has evidenced a criminalization of LGBT individuals and their behavior, both in terms of the socially constructed nature of “crime” and in the discretionary and discriminatory practices of police, judges and juries, and prison officials (Majd, Marksamer, & Reyes, 2009). A queer criminology shifts our attention from the “rule breakers to the rule makers” (Buist & Lenning, 2016, p. 4, referencing Woods, 2014). At times, police discretion occurs when crimes are reported, as LGBT victims find their concerns dismissed or ignored by police, or even turned against them, as they become the person arrested. LGBT youth often experience family situations in which they are not supported or perceive such lack of support for their different sexual or gender identity, such as with conflicts around gender presentation. At a minimum, youth may hide their gender identity or sexual orientation by dressing in a more feminine or masculine way, or by going along with heteronormative assumptions about having a boyfriend (if female) or girlfriend (if male). LGBT youth also experience lives characterized by homelessness or unstable living situations. Family rejection and homelessness are the most significant predictors of whether a young person comes into contact with the justice system; unsafe and hostile school environments can further perpetuate the school-to-prison pipeline for LGBT youth as they are given harsh school sanctions (Hanssens et al., 2014; Mitchum & Moodie-Mills, 2014). Unfortunately, early contact with the criminal

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justice system, which may reflect victimization or family dynamics due to difference, often creates a path to further criminal involvement as a person comes to be defined by a past record. Non-heterosexual youth are estimated to comprise about 5–7% of the total youth population, yet they are overrepresented in the criminal justice system with about 13–15% coming into contact with police and juvenile justice institutions (Hanssens et al., 2014). These justice interaction numbers are even higher when describing LGBT youth who are black, Latino/a, or Native American (including two spirit) (Hanssens et al., 2014). Despite the disproportionate number of LGBT individuals involved in the criminal justice system, the institutional structures, practices, and services fail to address the unique needs and, therefore, tend to further punish their difference (Majd, Marksamer, & Reyes, 2009). Some research on offending and sexual orientation focuses on investigating risk or protective factors for delinquency among gay and lesbian youth involved in the justice system (Conover-Williams, 2014). By including an explicit focus on sexual minority status in terms of a potential deviant label, researchers found that the ways in which lesbian and gay youth “do gender” as either more masculine (lesbians) or less masculine (gay males) than their heterosexual counterparts can impact being labeled as delinquent—with lesbian youth more at risk than nonsexual minority girls of being offenders (Belknap et al., 2014, p. 215). Strain theoretical approaches investigate drug and alcohol substance abuse as a response to negative feelings associated with particular strains in one’s life, such as the common rejection from families that gender nonconforming youth experience. Researchers have evidenced that gay and lesbian youth report higher rates of using drugs or alcohol compared to heterosexual youth (Garofalo, Deleon, Osmer, Doll, & Harper, 2006; Wilsnack et al., 2008), and bisexual youth are more likely to report substance use and abuse than heterosexual, lesbian, or gay youth (Belknap et al., 2014). By investigating these sexual orientation differences in early justice system experiences, researchers find that sexual minority youth more than heterosexual youth have greater mental health needs—largely related to family and societal rejection of their sexual or gender identity—as well as higher rates of previous victimization. Thus, programming during and following time spent in delinquency facilities should work to incorporate support for different sexual and gender identities, with particular attention to mental health needs to prevent further offending or selfharm behaviors among these youth. Policing tactics that emphasize sexual orientation or gender identity for LGBT youth of color, and particularly transgender women of color, reflect socially constructed stereotypes about race, gender, and fears of LGBT individuals rather than actual increased illegal behavior. For example, LGBT people of color experience prostitution arrests based on possession of condoms as evidence of prostitution, yet heterosexual white men similarly carrying condoms are not likely to be arrested for such sex offenses (Hanssens et al., 2014, p. 5). Policing sexual orientation and gender identity often means arrests for minor offenses, including sex offenses, which can lead to a lifetime of sex offender registration for acts that would not necessarily be criminalized if the person were heterosexual and gender conforming, or acting in the privacy of their home. Outside of the United States, justice officials often police public space in ways that prevent LGBT individuals from advocating for their rights, and police target LGBT bars, parks, or other public locations and threaten to “out” individuals to their families (Amnesty International, 2001). LGBT youth learn from their interactions with police encounters about the need to avoid “looking queer” to minimize any police harm (Dwyer, 2014). Following from criminalization of gay and gender nonconforming individuals for sex-related offenses, the court experience for these individuals also further reflects and reinforces the meaning of difference. Some prosecutors describe transgender people as inherently deceptive and guilty when they say, for example, “how



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can you trust this person? He tells you he is a women; he is clearly a man” (Mogul et al., 2011, p. 76). When compared to heterosexual sex offenders, LGBT individuals face coercive plea situations, as well as disproportionate sentences. Old stereotypes about LGBT individuals as sexually predatory, psychologically deviant, and generally nonconforming to traditional gender and sexual expectations in society lead the courts to demand psychiatric evaluation or treatment, pretrial detention, and longer sentences upon conviction for LGBT sex offenders than for heterosexual sex offenders (Mogul et al., 2011). In cases involving the death penalty, prosecutors sometimes use narratives about difference that appeal to racist, sexist, and homophobic views as a way to characterize an offender as deserving of death. In cases in which a lesbian faced homicide charges, narratives of a “man-hating lesbian” or describing her as “the man in the relationship” were used to sway a jury against the accused (Pasulka, 2016). In research on the incarcerated population, which is disproportionately male and persons of color, there tends to be little attention to sexual orientation other than to sensationalize, such as with the “voyeuristic examinations of the sexual behaviors amongst incarcerated women and girls” (Belknap et al., 2014, p. 209). There is limited national data on the prevalence of incarceration of transgender women, but one study puts that figure at 19.3% having ever been incarcerated (Reisner, Bailey, & Sevelius, 2014). Black and Native American/Alaskan Native transgender women are more likely to report a history of past incarceration. These transgender women experience disproportionately high rates of victimization while in prison (47%), and black, Latina, and mixed race transgender women were more likely to report victimization during incarceration (Reisner et al., 2014). U.S. prisons developed historically along gender lines and remain one of the most sex segregated of institutions (Jenness & Fenstermaker, 2014). This provides the context for understanding how transgender prisoners experience gender and sexuality while in prison, such as when individuals are housed according to their birth sex rather than their preferred gender identity. Fifteen percent of transgender individuals report being sexually assaulted while in police custody or jail, and this more than doubles to 32% for African-American transgender people. Five to nine percent of these sexual assaults were by police officers (Grant et al., 2011—see footnote 4). Transgender women face heightened risks of sexual and physical assaults when incarcerated in male prisons by male inmates and guards (Amnesty International, 2001; Bassichis & Spade, 2007). It is rare that such guards are disciplined; many are simply transferred to other facilities. Transgender women also report that they commonly experience verbal abuse by police officers. In one study, 17 of 29 police departments surveyed had no policy on the detention of transgender people, and fewer than 25% of the departments had policies regarding strip searches of transgender individuals (Amnesty International, 2006).

Justice Work and Sexual Orientation Recent attention to sexual orientation and gender identity difference in justice professions has focused on law enforcement recruitment and inclusion of sexual minorities, the experiences of LGBT people as they do justice work and whether they “do difference,” and training justice workers to be more sensitive to the unique experiences and needs of LGBT victims and offenders. Police agencies strive to achieve diversity and a better reflection of the communities they serve, yet a diverse workforce does not always prevent discrimination or a culture of exclusion for certain workers. As discussed in Chapter 6, justice professions have been historically male dominated, and characterized by masculine organizational cultures. Some research has shown that homosexuals are the group “most disliked” by police (Myers, Forest, & Miller, 2004);

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Transgender Individuals and the Criminal Justice System Sarah Prior Definitions As GLAAD describes, transgender is a term used to describe individuals whose gender differs from the sex marked on their birth certificate. Gender identity is a person’s internal, personal sense of being a man or a woman (or someone outside of that gender binary). For transgender individuals, the sex they were assigned at birth and their own internal gender identity do not match. As discussed in Chapter 6 and this chapter, gender identity and sexual identity are regularly conflated, and while they are often related, the two are distinct. Individuals who are transgender have a sexual orientation (transgender is not their sexual orientation). The distinction of gender occurs in many different spheres and affects the political, familial, religious, educational, social, and environmental arenas and intersects with race, ethnicity, sexuality, and class, among other pertinent identities. These value-laden distinctions are embedded in the gender binary and thus influence and perpetuate discrimination, at the institutional as well as individual level; take, for example, “one man, one woman” marriage laws or male/female bathrooms. This discrimination has previously been described as sexism but is now also being classified as genderism, which takes into account that discrimination is no longer solely based on physical bodies (i.e., traditionally sexed men are “better” than traditionally sexed women) but also includes social and cultural factors. This again, unfortunately, perpetuates the distinctions that sex is purely biological and gender is purely social. Additionally, genderism is based on the idea that everyone’s gender expression should match their sex and that there are, and should be, only two genders to match the only two sexes. While often discussed under the larger “transgender” category, gender nonconformity also includes other types of gender transgression, such as passing, impression management, and cross-dressing (McGuffey & Rich, 1999; Rosenfeld, 2009). Gender nonconformity is often linked directly to sexual orientation, where those who do not fit traditional social expectations of gender expression are “read” as non-heterosexual. Gender transgression is described as any activity that is outside the “gender-appropriate” boundaries, what McGuffey and Rich (1999) call the “gender transgression zone.” Within this zone, “hegemonic notions of gender are challenged and defended” (McGuffey & Rich, 1999, p. 610). Transgender individuals blur the dichotomy of male versus female, masculinity versus femininity, and man versus woman. Transgender is a term used to describe “individuals who exhibit gender-nonconforming identities and behavior, or in other words, those who transcend typical gender paradigms” (Grossman & D’Augelli,

2006, p. 112). The umbrella term “transgender” can encompass transsexuals, cross-dressers, and gender benders/blenders. Experiences in the Criminal Justice System While individuals who are transgender are growing in visibility in the United States because of high-profile cases such as Caitlyn Jenner and television stars such as Laverne Cox, they continue to experience significant disadvantage in the criminal justice system. In one example of a justice response that seemed to ignore apparent hate victimization, Cece McDonald, a black transwoman, was sentenced to 41 months in prison (the minimum sentence for her conviction of second-degree manslaughter) when she defended herself from a violent attack. McDonald’s case made headlines in 2012 when she killed Dean Schmitz with fabric scissors, after Schmitz and others used racist and transphobic slurs and initiated an attack. McDonald and friends were accosted outside a bar in Minnesota after patrons of the bar verbally attacked them. One individual, Molly Flaherty, threw a glass at McDonald causing damage to her face. The resulting brawl left both McDonald and Schmitz’s girlfriend Molly Flaherty bloody. After McDonald retreated, Schmitz ran after her and attacked her. In self-defense, McDonald grabbed her scissors from her purse and the ensuing altercation left Schmitz dead. McDonald was charged with intentional second-degree murder and, after attempting to argue self-defense, accepted a plea of second-degree manslaughter, which meant she had to drop the selfdefense claim. For the many who view McDonald as a survivor of a transphobic attack, the felony conviction and prison sentence demonstrate criminalization and obvious difficulties faced by transgender victims in the justice system. McDonald’s case also highlights compounded victimization given her attack not just as a transwoman, but as a black transwoman. In addition to the bathroom issues discussed in this chapter, transgender individuals, particularly non-white transgender individuals, encounter a wide variety of problems, which include classification of their gender for incarceration, potential violence from justice professionals and other offenders, access to health care, and potential stereotyping by legal decision makers (Giresi & Groscup, 2006). Legal institutions typically place inmates and offenders based on their birth and/or biological genitalia, for example, Littleton v. Prange, Meriwether v. Faulkner, and Powell v. Shriver. Though the Supreme Court ruled in Farmer v. Brennan that violence against transgender inmates by prison officials violates an inmate’s Eighth Amendment, this does not negate the experience of violence.

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In addition to the fictionalized accounts and “true story” accounts of experiences of violence of transgender individuals, such as Boys Don’t Cry and The Crying Game, real-world statistics depict a harrowing state of affairs for transgender individuals. Data collected for 2013 national report on hate violence by the National Coalition of Anti-Violence Programs (NCVAP) highlights that the majority of victims of hate violence homicides (73%) were transgender women. In addition to their increased mortality rate, transgender women were more likely to experience sexual violence when compared to other survivors. Additionally, transgender people were more likely to experience police violence and physical violence from law enforcement. Transgender people of color were six times more likely to experience police violence than their white cisgender counterparts. Throughout this chapter and this textbook, authors have highlighted the need to understand how individuals experience the criminal justice system through an intersectional lens. Transgender individuals of color provide an important example of how multiple identity categories

overlap and intersect to influence experiences. For these individuals, it is not just about the color of their skin, their gender identity expression, or their class status. Rather it is about how all of these categories coincide to produce disadvantage, particularly within the criminal justice system. References Giresi, M., & Groscup, J. (2006). Incarcerated transgender people: More research on transgender inmates is needed to help the forensic system. Judicial Notebook, 37(3), 43. Grossman, A. H., & D’Augelli, A. R. (2006). Transgender youth: Invisible and vulnerable. Journal of Homosexuality, 51(1), 111–128. McGuffey, C. S., & Rich, L. (1999). Playing in the gender transgression zone: Race, class, and hegemonic masculinity in middle childhood. Gender & Society, 13(5), 608–627. National Coalition of Anti-Violence Programs (NCAVP). (2013). Hate violence against transgender communities. 2013 Report. Rosenfeld, D. (2009). Heteronormativity and homonormativity as practical and moral resources: The case of lesbian and gay elders. Gender & Society, 23(5), 617–638.

thus, LGBT workers may not be welcomed or included. For LGBT individuals working as police officers, in courts, or in jails and prisons, institutional expectations often create pressure to perform heterosexual masculinity (Miller & Lilley, 2014). Due to limited research on other justice professions or on transgender justice workers, the ­discussion below uses police work to illustrate the inequalities associated with sexual orientation. Historically, police officers were tasked with regulating homosexuality by enforcing laws against sodomy and solicitation (Bernstein & Kostelac, 2002). Openly gay, lesbian, and bisexual police officers often experience differential treatment, including harassment and discrimination as well as a hostile environment characterized by microaggressions such as “jokes” related to sexual orientation. In policing, there is a privileging of normative expressions reflecting hegemonic masculinity, and a devaluing of feminine and subordinated masculine expressions (Bernstein & Kostelac, 2002; Buhrke, 1996; Miller, Forest, & Jurik, 2003). In one study of police leadership in Texas, respondents evidenced resistance to inclusion of LGB people as officers, with a majority describing homosexuality as “perversion” or “moral turpitude” (Lyons, DeValve, & Garner, 2008, p. 110). Police organizations denied employment to lesbians and gay men through policies banning homosexual conduct as unfitting an officer (Bernstein & Kostelac, 2002). The prevalence of homophobia within the police culture has led some officers to refuse to backup fellow officers due to their sexual orientation (Miller & Lilley, 2014). Many gay police officers hide their sexual orientation due to these characteristics within police organizational culture (Miller et al., 2014); this “closeting” is further evidence of the impacts of anti-LGBT microaggressions (Nadal et al., 2010). While there is moderate acceptance of lesbian officers compared to gay male officers, lesbian officers are judged as less effective in ways that reflect their devalued status as women in police organizations (Bernstein & Kostelac, 2002). Thus, LGB police officers face constant scrutiny and must work harder to demonstrate the “correct” performance of policing work, which is directly linked to both “doing masculinity” and “doing heterosexuality” (Myers, Forest, & Miller, 2004). Due to recent attention to the harms associated with aggressive policing, particularly against people of color, many police departments are seeking more

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positive connections to the communities they police. Some suggest that these changes to police practices, which allow for more diverse expressions of policing, may create more inclusive organizational cultures for LGB police officers (Miller & Lilley, 2014) and improved service to communities due to their acceptance in the police officer role (Colvin, 2014).

Conclusion Individuals who are LGBTQ experience the justice system differently based on a variety of different social locations. Legal culture, social practices, and institutions have historically perpetuated a hostile environment for LGBTQ individuals, particularly for their interactions with the justice system. Throughout this chapter, we have provided examples from the research that highlight “the ways in which laws and attitudes surrounding sexuality and gender are used as weapons of the state to control the behavior of those who do not fit the societal norm” (Buist & Lenning, 2016, p. 112). Laws continue to criminalize LGBTQ individuals in ways that their heterosexual counterparts do not experience. Sexual minorities who are also class or racial minorities are at higher risk of victimization in society and within the criminal justice system. While we have seen a significant increase in the overall acceptance (legally, politically, and socially) of LGBTQ persons, transgender people of color continue to experience very high rates of victimization and criminalization. Their very existence seems to be criminalized. Instead, our justice institutional policies and the actors implementing them should recognize and accommodate the different ways of self-identifying, including culturally specific forms of gender identity and expression (Hanssens et al., 2014; Jenness & Fenstermaker, 2014). While we recognize that laws are changing rapidly in the area of LGBT rights and protections, we also would like to remind the reader to consider the dynamics of the socially constructed language and identity terminology for lesbian, gay, bisexual, transgender, and queer individuals. While enhanced legal protections are valued, we must also be careful that categorization may be the very label that continues to divide or disempower LGBT persons as different (Buist & Lenning, 2016). Moving beyond old stereotypes about LGBT persons and strictly binary classifications is needed within the criminal justice system, but also among researchers who often maintain a limited focus on sex crimes or bias crimes. We hope that our focus on microlevel interactions, such as with microaggressions and teacher/police interactions, as well as the broader structural context of law and justice institutions has broadened the understanding of inequality related to sexual orientation and gender identity/ expression.

Questions for Review 1. What is meant by the idea that sexual orientation and gender identity are “socially constructed” and how are sexual orientation and gender identity created, enforced, and maintained? 2. What is heteronormativity, and how does it perpetuate particular understandings of sexual orientation and gender identity/expression? What is homophobia? 3. What are some examples of how the law has been used to create and maintain inequality related to sexual orientation and gender identity? What are some ways in

which activities in the legal arena evidence the changing and contested meaning of “difference” related to sexual orientation and gender identity? 4. How do norms about masculinity and femininity, and heteronormativity, help us explain policing and criminalization of LGBTQ individuals, and their victimization? 5. What are some challenges experienced by LGBTQ individuals working in justice professions?



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responses. In D. Peterson & V. Panfil (Eds.), Handbook of LGBT communities, crime, and justice (pp. 405–427). New York: Springer. Ware, W. (2011). Rounding up the homosexuals: The impact of juvenile court on queer and trans/gender-nonconforming youth. In E. A. Stanley & N. Smith (Eds.), Captive genders: Trans embodiment and the prison industrial complex (pp. 77–84). Oakland, CA: AK Press. Weber, P. (2014). Confused by all the new Facebook genders? Here’s what they mean. Slate, February 21, 2014. Retrieved from http://www.slate.com/blogs/lexicon_ valley/2014/02/21/gender_facebook_now_has_56_­ categories_to_choose_from_including_cisgender.html. Weiss, J. (2016). Federal law dooms transgender bathroom bans: Column. USA Today, April 13, 2016. Retrieved from http://www.usatoday.com/story/opinion/ 2016/04/13/north-carolina-transgender-bathroom- law-discrimination-lgbt-column/82872840/. Wilsnack, S. C., Hughes, T. L., Johnson, T. P., Bostwick, W. B., Szalacha, L. A., Benson, P., . . . Kinnison, K. E. (2008). Drinking and drinking-related problems among heterosexual and sexual minority women. Journal of Studies on Alcohol and Drugs, 69(1), 129–139. Williams Institute. (2015). Video: “How gay is America?” with Gary Gates. Retrieved from http://williamsinstitute. law.ucla.edu/datablog/video-how-gay-is-america/. Woods, J. B. (2014). Queer contestations and the future of a critical “queer” criminology. Critical Criminology, 22(1), 5–19.

Suggested Websites for More Information GLAAD, formerly the Gay & Lesbian Alliance Against Defamation, in 2013 changed the name to just GLAAD and now includes advocacy for transgender people: http://www.glaad.org/about. Human Rights Campaign works for lesbian, gay, bisexual and transgender equality, and includes maps of state laws and policies related to LGBT issues: http://www. hrc.org. The Southern Poverty Law Center is a legal advocacy organization that fights hate and bigotry, including

advancing LGBT rights, tolerance, and justice to challenge anti-gay discrimination, bias, and hate: https:// www.splcenter.org. Campus Pride Index at http://www.campusprideindex.org. For U.S. and global issues, visit Human Rights Watch at https://www.hrw.org/topic/ lgbt-rights. Amnesty International at http://www.amnestyusa.org/ our-work/issues/lgbt-rights.

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Victimization in the Context of Difference Brooke de Heer and Lynn Jones

Chapter Objectives • Describe the perception of the “ideal” victim and its relationship with social constructions of difference. • Based on National Crime Victimization Survey (NCVS) data, provide an explanation of a typical victim. • Summarize the problems associated with the NCVS and measurement of victimization of marginalized groups. • Explain the unique attributes of violence against women and identify the limitations associated with the perception of males as aggressors and females as victims. • Compare and contrast the theories of victimization. • Discuss the formal and informal roles of the victim within the criminal justice system. Provide examples of actions/events typically associated with the victim’s formal role as well as things that contribute to revictimization in the victim’s informal role. • Analyze campus sexual assault within the context of difference. • List examples of victims’ rights and some of the barriers to receiving them. Typically, we think of a victim in the context of the criminal justice system as an individual who has been harmed physically, emotionally, or psychologically by another person. We tend to associate victims with crimes, such as the victim of a robbery or a rape victim. While this chapter will focus largely on a discussion of specific types of crime victims, a more comprehensive understanding of victimization as a result of social forces is imperative. More broadly defined, a victim can include someone who is exposed to maltreatment or discrimination by a person or an entity. For example, historically, females and African Americans have often been the victims of discriminatory policies and practices such as having their voting rights restricted and having limited educational opportunities. As a society, we have structurally reinforced this differential treatment of specific groups, particularly women, people of color, and the poor, through adverse policy initiatives, access to services, media portrayal, and everyday language. Throughout this chapter, we will discuss crime victims generally as well as the experience of marginalized groups as crime victims, including the impact structural influences and social forces have had on the victimization of these groups both past and present. We will start with an explanation of the relationship between victimization and difference, which will provide a framework for the rest of the chapter. Then, we will cover crime victim statistics and measurement issues for marginalized groups. We will move on to victimization theories that incorporate influences of gender and power that will transition into a discussion of the victim’s role in the criminal justice system. Next, 113

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we will consider the role of the criminal justice practitioner and the importance of understanding difference. Lastly, we will illustrate gendered injustice through an indepth analysis of campus sexual assault and conclude with the current status of victims’ rights legislation.

Understanding The Role of Difference in The Victimization Experience Victimization is patterned by difference characteristics, though it should also be understood according to the socially constructed meanings of both victimhood and difference. The same ways in which we think about the normative characteristics by which we compare those who are different, there are also socially defined characteristics associated with “victim” that allow some and not others to acquire this label. The “ideal victim” that evokes sympathy and a justice response is like the fictional Little Red Riding Hood victim who is a “young, innocent female out doing good deeds who is attacked by an unknown stranger” (Walklate, 2007, p. 144). This view of the ideal victim who is deserving of attention thus creates others who are seen as undeserving victims, or not victims at all. This construction of a hierarchy of victimization means that there is a “normal” to which a victim may not sufficiently compare, resulting in many victims becoming hidden from view or otherwise rejected as not “real” victims. Variables such as race and ethnicity, class, gender, and age and the related social stereotypes all affect the degree to which they align with victimhood and impact the justice experience victims encounter. In other words, the same way we see social construction of difference in society generally is also evident in the socially constructed views and experiences of victims. For example, images of victims might center on images of violence, or images of women or children as victims, when it is much more likely that victimization experiences are nonviolent property crimes, and male victims of violence. The  elderly have high rates of fear of victimization, and media images and the multibillion-dollar industry of home security reinforce this notion that they are at risk of home invasions or door-to-door peddlers in fraud. The reality: elderly, as discussed in Chapter 18, are more likely to be victimized by caretakers, not strangers, and overall their victimization risks are quite low compared to other age groups. Socially constructed images of who victims are and what type of victimization they experience both contribute to people’s beliefs about the meaning of victimization— real or not. Whether a victim’s characteristics fit those of the ideal victim, such as being female, can result in other attempts to socially construct a victim’s actions that impact justice responses. For example, in cases of violence against women through intimate partner violence or rape, views that women should call for help can create victim blaming. Gendered emotional expression rules mean that a woman experiencing shock after being raped might be doubted by police or in the courtroom for failing to seem emotional enough. Men who are raped might fail to report to family or police due to socially constructed meanings of masculinity and the failure to see themselves in the ideal victim characteristics. Similarly, young people may minimize bullying as “drama,” which distances them from adults and policy definitions in ways that mean teens fail to report it as victimization (Marwick & Boyd, 2014). As victims distance themselves through self-blame, or as they and others define their experience as less worthy, victims fail to engage in the justice system or seek help through victim services. This then has the potential to acutely impact their victim experience, starting with the decision to report the crime whether that is formally to police or through a victimization survey.



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NCVS and Victimization Statistics The National Crime Victimization Survey (NCVS) is a nationwide survey that gathers data on the prevalence and types of victimization in the United States. The NCVS surveys households across the United States and includes information from anyone 12 years or older. It is administered via telephone or in-person every six months and once a household has been selected to be a part of the survey, they will be surveyed every six months for the next three years. Due to the self-report nature of the survey, the NCVS is able to collect statistics on reported and unreported victimizations. On average, the NCVS collects data from over 90,000 households and includes interviews with more than 155,000 individuals. In 2014, the NCVS reported 20.7 million victimizations in the United States (Truman & Langton, 2015). This included 5.4 million violent victimizations and 15.3 million property victimizations. Violent victimizations include rape/sexual assault, robbery, or assault, and property victimizations include general theft, household burglary, or motor vehicle theft. While those numbers sound discouraging, when compared to population estimates, only 1.1% of people were violently victimized (Truman & Langton, 2015). Similar to overall crime trends in the nation, victimizations are decreasing when compared to past years. Generally speaking, young males have the highest rates of victimization, although the NCVS reports a very small difference between male and female rates of victimization with 1.2% of males being victimized in 2014 compared to 1.1% of females (Truman & Langton, 2015). A comparison between 2005, 2013, and 2014 shows that while victimization rates for males and females have remained stable through the last two years, in 2005, males were significantly more likely to report being the victim of violent crime. African Americans have the highest prevalence rate of serious violent victimization among the various ethnic groups (Truman & Langton, 2015). Additionally, the group categorized as “other,” which includes American Indians, Alaska Natives, Asians, Native Hawaiians, and Pacific Islanders, has reported the highest rates of violent crime victimizations. Latinos have also experienced a higher rate of serious violent victimizations when compared to whites (Truman & Langton, 2015). Through these statistics, we can understand the prevalence of victimization across the United States and see a clear overrepresentation of particular groups as crime victims.

Biases Against Marginalized Groups in NCVS As demonstrated in many chapters in this book, there is disproportionate representation of certain racial, ethnic, gender, and other cultural identities in offending and victimization statistics. Socially constructed meanings link certain racial and ethnic groups with the role of offender, yet racial misconceptions persist about victims in that we do not “see” the prevalence of people of color as victims. Victims are assumed to be white, wealthy, women, the elderly, and the very young: all images that correspond with perceptions that victims are innocent, weak, or helpless against the criminal offender “other.” Again this “ideal” victim is at odds with actual accounts of victimization. As evidenced above, statistics show that victimization rates are high for black males and Latinos, and Native American women have the highest rates of violence against women, followed by individuals who are LGBTQ, but none of these groups fall in line with the perception or stereotype of the “ideal” victim. Clearly, difference matters in patterns of victimization, even if it defies the social construction of who and what a victim is. Numbers or statistics associated with victimization can never provide a complete picture of the victimization experience, but we often rely on them for general information. The next section will detail some of the methodological issues with victimization statistics gathered through the NCVS and how those methodological flaws impact our understanding of victims and highlight difference.

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While the NCVS is one of the most relied upon resources for accurate victimization statistics, it is by no means a perfect measure. In particular, data pertaining to victimization rates may be underrepresented due to methodological issues with the survey. For example, when a person experiences repeat victimizations and cannot remember details for each, typically only the most recent victimization is recorded (Daigle & Muftic, 2015; Truman & Langton, 2015). A phenomenon known as proactive interference, which is when information is forgotten because new information that has similarities to the original information interferes with the original memory, helps to explain this. When an individual is victimized more than once, the events can begin to overlap in memory, resulting in lost details of the earlier victimizations. When a person cannot recall each victimization individually and in a detailed manner due to proactive interference, the NCVS only counts the most recent event, while classifying it as series victimization. While this is a common methodological practice for the NCVS, it is noted that recording each incident individually, which the NCVS does not do, would result “in large increases in the level of violent victimization . . .” (Truman & Langton, 2015, p. 12). Thus, recording events in series fashion underrepresents victimization. Additionally, we are limited in our understanding of the relationship between series victimizations because details are only reported on one of the incidents (Addington, 2008).1 When using NCVS data that group repeat victimizations together, we are working with an underestimate of overall victimization. Generally speaking, this can be seen as problematic, but when we consider who is the most likely to suffer from repeat victimizations, it changes from problematic to biased. Research has shown that victims of repeat violent offenses compared to victims of one-time violent offenses are more likely to be poor and to be minorities (Buss & Abdu, 1995; Outlaw, Ruback, & Britt, 2002). Additionally, females who are the victims of domestic violence are well documented as suffering repeat victimizations because “. . . partner violence is often frequent and chronic” (Farrell, Phillips, & Pease, 1995, p. 2; Websdale, 1999). The poor, minorities, and women are therefore being underrepresented in our understanding of national victimization rates. One of a number of crimes that is grossly underreported is rape and sexual assault. This represents a large limitation to the NCVS because the data collection method underreports an already underreported crime. The reasons for not reporting a rape are well documented and include feelings of shame or embarrassment, fear of not being taken seriously by police, and persistent rape myths and misunderstandings about what constitutes rape. The NCVS explicitly asks if an individual has been the victim of a rape, which research has documented as extremely problematic because many women refuse to label their sexual victimization without their consent as rape (Kahn, Jackson, Kully, Badger, & Halvorsen, 2003). Legal definitions and definitions used in sexual assault research alike identify this labeling issue and instead measure the sexual victimization without using the word “rape” or “sexual assault.” Due to the explicit wording in the NCVS, victims may not believe or understand that the definition represents their victimization, thus leading to lower prevalence estimates (Lonsway & Archambault, 2012). Additionally, research indicates that two of three individuals who have been sexually victimized in the past will experience revictimization in the future (Classen, Palesh, & Aggarwal, 2005). The underreporting of rape/sexual assault coupled with the likelihood of rape/sexual assault being a repeated crime causes a massive underrepresentation in prevalence rate estimation by the NCVS. 1 The Uniform Crime Report (UCR), which provides information on crimes reported to police, has a similar issue with ­reporting only the most serious crime incident when there may be repeat incidents, thus underreporting the prevalence of a given crime.



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Outside of the methodological classification of series victimizations and rape definition, there are other flaws in the way the NCVS records victimizations. Two specific types of crimes are not included in the NCVS. Murder is not included in the NCVS because it gathers information from crime victims, and murder victims can obviously not provide information about the crime. Public order crimes, such as prostitution or drug offenses, are also not included in the NCVS because they are considered to be victimless crimes (Daigle & Muftic, 2015). Minorities are disproportionately represented as murder victims as well as those incarcerated for drug offenses, and women comprise the overwhelming majority of those who suffer victimization due to prostitution (Daigle & Muftic, 2015). For example, the U.S. Department of Health and Human Services estimated that African Americans made up 14% of drug users in 2006, yet they comprised 45% of drug offenders in prison (The Sentencing Project, 2008). By not including any of these offenses in overall victimization statistics, we again are discounting and underrepresenting some marginalized groups. Another issue with NCVS data is that because it is collected from U.S. households through phone interviews, it strategically does not include information from individuals who are homeless or in prison. According to the National Coalition for the Homeless (2009), African Americans comprise 41% of the homeless population compared to 11% of the population nationally, and generally speaking, people of color are substantially overrepresented as homeless. Similarly, African-American males are six times more likely and Hispanic males are 2.4 times more likely to be imprisoned when compared to white males in the United States, indicating that yet again minority victimization rates are underrepresented in the NCVS because of incarceration (Bonczar, 2003). The NCVS is a useful tool in providing a general understanding of victimization rates for both reported and unreported crimes, but it has flaws much like any largescale survey instrument. While it can be used to determine a more accurate measure of crime outside of what is reported to law enforcement, it should not be used as the only indicator of crime and victimization rates in the United States. Due to the methodological flaws discussed above, the NCVS underestimates victimization rates for the general population and may particularly underrepresent victimization experienced by marginalized groups. One of the examples of a methodological issue with the NCVS that specifically affects women revolves around the definition of rape. Outside of the NCVS, data collected on crimes against women can provide a picture of a subset of victims that have a unique experience of victimization. Violence Against Women Statistics

As was highlighted above, crimes such as sexual assault and rape are highly underreported crimes. This subsection of crimes, commonly referred to as violence against women, which typically includes intimate partner violence, rape/sexual assault, and stalking, primarily victimizes females. There is clear evidence that there is a gendered pattern to victimization in the context of these crimes. While men can be the victims, perpetrators of these crimes tend to target women overwhelmingly. It is estimated that 9% of rape and sexual assault victims are male (Planty, Langton, Krebs, Berzofsky, & Smiley-McDonald, 2013). In 2009, the Bureau of Justice Statistics found that women were 5.4 times more likely than men to be the victim of intimate partner violence and 4.7 times more likely to be raped/sexually assaulted (Catalano, Smith, Snyder, & Rand, 2009). Similar to victimization patterns in general, most crimes against women negatively affect women of color more than their white counterparts. Physical violence by an intimate partner is highest among women who are multiracial (50.4%), American Indian or Alaskan Native (45.9%), and black (40.9%), though about one-third of Latinas and white women experience such violent victimization (Black et al., 2011).

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Catalano et al. (2009) report that black female victims of interpersonal violence are two times more likely than white females to be murdered by a spouse and four times more likely to be killed by a boyfriend/girlfriend. Additionally, black women were subject to sexual assault victimization at a rate of 2.9 per 1,000 females compared to 1.2 per 1,000 for white females; black women are almost 2.5 times more likely than white women to be sexually assaulted (Catalano et al., 2009). Also, it is estimated that 34% of Native American women, or one in three, will be raped during their lifetime, which is significantly higher than the one in five probability for non-Native women (Tjaden & Thoennes, 2000). One of the most alarming and well-documented dynamics concerning violence against women is the likelihood of male offenders. Research indicates that in intimate partner violence situations, males are more likely to injure females and that approximately 80% of rapes are perpetrated by men against women (Catalano et al., 2009). Similarly, 67% of females were stalked by a male (Carney, Buttell, & Dutton, 2007; Catalano et al., 2009). At the same time, the public perception of males as aggressors and females as victims can have real impacts for victims who do not fit these typical patterns, such as with same-sex intimate partner violence or rape. These victims may not see themselves in typical programming or discussions of male-perpetrated violence. Additionally, teen victims of dating violence may experience something similar, feeling somewhat isolated because they cannot recognize how their experience aligns with an “adult” problem structured by marriage. In other words, the difference from the normative understanding of marriage and heterosexual relationships creates an “othering” of same-sex or youthful relationships that excludes them from visibility as victims. The gendered and intersectional nature of victimization related to certain crimes implores further investigation into the male/female dynamic and the social forces that have promoted traditional gender roles and racial/ethnic stereotyping.

Victimization Theories: A Focus on Gender And Power Nothing is more frightening to the general public than the thought that crime and victimization is random. In an effort to quell that fear, experts have sought explanations for why and how one may become the victim of crime, or to distinguish the victim from the non-victim. Some of these theoretical explanations take into consideration categories of difference, such as gender, and the role of power. Opportunity theorists postulate that certain predictable activities can put people at increased risk for victimization. For example, there was a dramatic increase in residential burglary between 1960 and 1970, and one study identified increased opportunity to commit this type of crime during this time period because women were becoming members of the workforce leaving homes vacant (Cohen & Felson, 1979). Opportunity theories, which incorporate the well-established routine activities theory, have ventured to further explain victimization risk through a gendered approach. As we discussed earlier, certain crimes are much more likely to have female victims and male offenders. Rape and sexual assault, interpersonal violence, and stalking are three crime types where females are the predominant victims, while men are more likely to be the victims of homicide, robbery, and aggravated assault. These apparent differences in victimization rates have prompted researchers to apply a gendered lens to the traditional routine activities theory, which argues that certain “. . . lifestyles and routine activities facilitate crime opportunities” (Fisher, Reyns, & Sloan, 2015, p. 65). Routine activities theory focuses on variables such as exposure, guardianship, target attractiveness, and proximity to potential offenders to explain increased likelihood of victimization. In other words, people who engage in risky lifestyle behaviors increase their risk of victimization by exposure to environments that make them attractive targets and put them in contact with potential offenders.



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Gendered routine activities theories investigate the role that gender2 plays in explaining the differential victimization rates between men and women. It has not been determined whether the different lifestyles/routine activities that men and women engage in are solely responsible for the different types of victimizations or whether there is an interaction between routine activities and gender that is causing the differential victimization. For example, it is possible that men’s routine activities, such as involvement in team sports, put them at greater risk of victimization for an aggravated assault compared to women who tend to not have the same type of routine activity (Mustaine & Tewksbury, 1998). Alternatively, it is conceivable that alcohol use may increase the likelihood of victimization, but that this effect is unique to women (interaction effect; Tillyer, Wilcox, & Gialopsos, 2010). Another gendered routine activities approach considers victim vulnerability from the perspective of a motivated offender. This method for understanding victimization contends that perpetrators see increased opportunity to commit crimes against female victims because they are perceived as vulnerable and thus a more attractive target. This approach is deeply rooted in an understanding of the real power differentiation between males and females, as well as the socially constructed meanings attached to sex differences. We have long classified males as the dominant figures in all forms of social life: in the home, in the workforce, and in politics. This theory exemplifies men as the dominant aggressors and females as the passive recipients of violence and has been applied to explain the disproportionate amount of females who represent victims of rape/sexual assault. Additionally, explanations about the perceived vulnerability are so pervasive that females may internalize them, thus contributing to victim self-blame and failure to report. Another contribution to the commonly held association between females and vulnerability is the reliance on social scripts that accompany rape situations and promote the power differentiation between genders. Behavioral or social scripts in the psychological literature typically refer to behavior that is expected from certain situations. When we contextualize this around sexual assault, we can see that the common social script is one that depicts women as objects and promotes the “normalization” of rape. For example, current advertising campaigns for Dolce & Gabbana feature three men watching as another man holds down a scantily clad glamorous female in heels. These types of examples, which we see not just in advertising, but also in social media, music, television, and daily discourse, perpetuate the idea of women as acceptable targets for sexual violence and make sexual violence seem like a regularly occurring act that women are partially responsible for and need to fear. Feminist routine activities theory also considers victimization within the context of lifestyles and routine activities, but adds the component of patriarchy to explain gendered victimization. A patriarchal society is one in which males have a disproportionate amount of power and privilege, thus rendering women to a lower social status. This is typically applied to the sexual victimization of women in that opportunities to victimize women are more prevalent in a society that condones and supports a patriarchal structure (see Chapter 6 for more on gender-based violence). Much of the feminist routine activities approach has focused on campus sexual assault of college women. Schwartz and Pitts (1995) provide a thorough explanation of how the college environment promotes the sexual exploitation of women through the development of strong male peer groups that endorse this mentality, thus creating motivated offenders. Additionally, college campuses provide limited guardianship because, historically, sanctions that punish sexual assault offenders at the university level are rare (Schwartz & 2 Literature on gendered routine activities theories regularly uses the term “gender” to mean sex or the differentiation between males and females. Current uses of the word “gender” typically denote the spectrum of masculinity/femininity and gender identity expression, which is very different from the biological differences between males and females.

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Pitts, 1995). It has also been found that exposure and variables related to target attractiveness, such as increased time spent partying and alcohol consumption, may contribute to an increased risk of sexual victimization for females on college campuses (Franklin, Franklin, Nobles, & Kercher, 2011; Schwartz & Pitts, 1995). While the above explanations of victimization are theoretical in nature, one can see aspects of these various theories in practice within our justice system. The roles of power and privilege, which shape perceptions of victims, are deeply embedded within our social structure and affect not only who is victimized but also how those victims are treated in the system. For instance, research demonstrates an association between attributing blame to rape victims and acceptance of traditional gender roles. In fact, victim blaming is more likely to occur when a woman is perceived as behaving against the traditional gender role or cultural stereotype of a “good girl,” such as with assumptions that the way she dressed or “flirted” brought on the assault (Grubb & Turner, 2012). Such evaluations of the victim shift attention away from the violent behavior of the perpetrator, while also reinforcing stereotypes about what behavior is appropriate and condoned for women and men. The following section will discuss both the official and unofficial roles that victims are given in the system, the problematic tensions that exist because of stereotypical perceptions of a typical victim, and the impact of these experiences on reporting victimization.

The Victim’s Role and Experience Within The System: Revictimization Through the sixteenth century, the victim held the responsibility of seeking justice informally, such as through a family seeking retaliation via “an eye for an eye” or through compensating for a stolen object. By the early 1900s in this country, the focus on crime shifted away from the victim to mean a violation against the state rather than against the victim. Since then, being a victim has meant a position of powerlessness or exclusion within our criminal justice system. Victims are usually considered to be vulnerable and sometimes weak, and are at the behest of practitioners within the system. They regularly are required to respond to directives from various entities such as police officers who need them to identify the perpetrator from a lineup or the judge overseeing their case who has delayed a hearing yet again. We have even coined terms such as “victim empowerment” that highlights the lack of power experienced by victims. While this passive positioning of victims is widespread across crime types, it is particularly prevalent for our more marginalized groups. Deep-seated benevolent discrimination of people of color and women permeates the criminal justice system including treatment of victims. An important concept to understand when analyzing the relationship between the criminal justice system and the victim is the attrition process. The attrition process explains how many cases divert from the system (Mawby & Walklate, 1994). A small proportion of crimes are actually reported by the victim or someone else to police, and an even smaller proportion are prosecuted. It is estimated that 42–50% of crimes went unreported between 1994 and 2010 and that roughly 52% of violent crimes are likely not prosecuted because the cases were not cleared by arrest or other means (Langton, Berzofsky, Krebs, & Smiley-McDonald, 2012; United States Department of Justice, 2010). This significantly limits the interaction time any victim may have at any stage of the system and makes reparation to the victim, either symbolically or legally, a rarity. Attrition rates are particularly problematic when we refer to crimes against women. Given the methodological concerns of the NCVS and the decreased estimates of how often sexual assault occurs, most experts agree that only 5–20% of sexual assault cases are reported to officials (Lonsway & Archambault, 2012). Additionally, sexual assault cases are notoriously difficult to prosecute given the typical “he said, she

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said” dispute. Of that 5–20% that are reported, significantly less than half of those result in prosecutions (Lonsway & Archambault, 2012). While attrition explains that most crimes will never make it through the criminal justice system, advocates for victims’ rights have strived to increase their role in the cases that do. Since the Victims’ Rights Movement emerged in the late 1970s, victims have become more active participants in the criminal justice process. Their participation has become more valued by professionals in the field, and, with new laws and the help of victim advocates, victims now have a more official role in proceedings related to their case. Technically speaking, a victim’s formal role within the system involves interactions with law enforcement, a victim advocate, the prosecutor, and the court (if the case goes to trial; see Table 8.1). The Victims’ Rights Movement pushed victims’ needs to the forefront of the criminal justice system. It assisted in establishing victim compensation programs (for more information see Victims’ Rights section on p. 128), developing victim-oriented organizations like Mothers Against Drunk Driving (MADD), and most importantly advocating for better treatment of victims by criminal justice professionals. As a result, the victim’s official role within the system was heightened and, in theory, they receive more support throughout the process. While the Victims’ Rights Movement advanced the victim’s formal role and rights in the criminal justice process, there are still many aspects of involvement with the system that are problematic for victims. At times, victim interaction with the system creates perceived or experienced revictimization, referred to as secondary victimization. Secondary victimization involves negative interactions between victims and individuals within the criminal justice system or processes associated with the system. This often involves a form of victim blaming by service providers that can traumatize a victim after the actual traumatic event. Victim blaming can take place at any stage of the criminal justice process but is often referenced in relation to negative interactions with police officers when reporting crimes or in subsequent interviews, or in the courtroom if the victim is asked to testify against the accused individual. Secondary victimization can also TABLE 8.1  The Victim’s Official Role in the Criminal Justice System Criminal Justice Interaction

Victim’s Official Role

Law enforcement

• Report crime to police and provide cooperation with subsequent statements/interviews as needed (i.e., as a “witness” to the crime) • Participate in identification procedures once suspect has been detained (e.g., lineup)

Victim advocate

• Typically referred to a victim advocate by police • Work with advocate to obtain any needed services (e.g., counseling or victim compensation) • Advocate helps to navigate the court process

Prosecutor (if charges are brought against the suspect)

• Discuss case and charges with prosecutor • May be able to provide input on preferred charge in relation to harm done • Discuss willingness and likelihood of providing testimony in court

Court (includes pretrial hearings and trial if case goes to trial)

• Option to attend all pretrial hearings and trial • Provide testimony in court (if previously agreed upon with prosecutor) • Option to provide victim impact statement at sentencing hearing if defendant is convicted

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involve justice officials making statements suggesting they do not believe a victim, or a general insensitivity to a victim’s needs, thus creating further emotional distress. For example, the litigation process can be lengthy and inconvenient for victims often requiring the victim to take a substantial amount of time off from work or school, which can have negative repercussions. Feelings of revictimization often occur within four domains: interaction with law enforcement, invasive medical exams, interactions with the courtroom workgroup, and events in the aftermath of a trial or plea bargain (see Table 8.2). Issues associated with the victim’s unofficial role, or revictimization, within the criminal justice system are extremely problematic for victims generally because they create an environment of distrust between victims and the system. This is particularly pronounced in adverse interactions with law enforcement and courtroom personnel. Police reactions to reports of crime are unavoidably influenced by perceptions of “ideal” or “worthy” victims, reflecting stereotypical views that “real” victims are innocent and experience victimization in socially acceptable ways. When difference enters into justice interactions, victim experiences can be further challenged. Characteristics of victims, such as their age, race, class, and gender, tend to influence how closely they TABLE 8.2  Revictimization in the Criminal Justice System Criminal Justice Interaction

The Reality of Revictimization: Victim’s Unofficial Role

Law enforcement

• Numerous interviews that force the victim to relive the crime • Speculation about victim accounts of the crime/ negative interactions with police • Pressure to identify perpetrator from possible suspects • Not being informed about the status of the investigation

Medical exams (applies to sexual assault victims)

• Invasive procedure to collect physical evidence • Further medical appointments due to injuries from the crime

Courtroom workgroup

• Aggressive or indifferent interactions with the prosecutor regarding charges or course of action (e.g., push for a plea bargain over a trial) • Prosecutor fails to consider a victim’s wishes, or “uses” the victimization scenario for political or policy purposes • Failure to pursue cases of acquaintance rape as “difficult to prove” • Delays or cancellations of hearings, causing lost wages and wasted time for the victim • Adversarial interactions with the defense attorney during cross-examination (if victim testifies) • Judge fails to acknowledge or enforce victims’ rights • Judge ignores victim impact statement and provides a lenient sentence

After the trial/plea bargain

• Feelings of betrayal by judge/jury or system in general if perpetrator is acquitted • May not be informed of perpetrator’s release from prison



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conform to the “ideal” meaning of victim (Spalek, 2006). For example, police officers may associate certain low-income minority communities with high crime, thus grouping all individuals within that community as offenders, not victims. On New Year’s Day 2009, an unarmed 22-year-old African-American male by the name of Oscar Grant was shot and killed at a subway station in Oakland, California, by Bay Area Rapid Transit police officers. The death of Grant incited unrest and protests in the Oakland community after word spread that Grant was in handcuffs on his stomach when he was fatally wounded. Oakland law enforcement has a long history of problematic relations between civilians and police dating back to the 1960s civil rights era, with most of the issues focusing on tensions between the city’s lower-income black population and law enforcement (Harris, 2011). It is well documented, as illustrated by the above example, that minorities report less satisfaction with police interactions and have less trust in the police compared to whites (Posick, Rocque, & McDevitt, 2013; Reisig & Parks, 2000). It should not surprise us if persons with “different” characteristics or from communities experiencing strained relationships with police hesitate to report their victimization or fail to trust that justice will be served in the criminal justice system. Women, the elderly, and children often receive sympathetic responses to their victimization because they meet the typical expectations of an “ideal” victim. Yet female victims of sexual violence in particular have their behavior scrutinized to a degree unlike any other victims for their role in the rape or for not conforming to gender role expectations (Grubb & Turner, 2012). Stereotypes about “ideal” victims often reflect the social construction of difference. In the case of females who are sexually victimized, we see a tendency to fault the victim for her role in the attack particularly when there is alcohol or drug use involved or a reputation of risky behavior. These superficial negative attributes of the victim (alcohol use and/or risky behavior) deviate from the perception of an “ideal” female victim and therefore open the door to unfair judgment and ridicule, not only by the public generally, but also by practitioners within the system. Female victims of sexual assault often explain that they hesitate to report the crime because they fear poor treatment by police. Research often points to a police culture “whereby disbelief of rape cases has become entrenched in many aspects of the criminal justice system” (Kelly, 2010; Loftus, 2008; Sleath & Bull, 2012, p. 648). Attorneys and judges can also have contentious interactions with victims of color and female victims. Judicial sentencing decisions have been found to favor white victims in that offenders who perpetrate against minority victims receive lower sentences (Kansal, 2005). Additionally, rape shield laws, which protect rape victims from inflammatory questions regarding their past sexual behavior in trial, were developed in response to defense attorney tactics to attack the victim’s account of the rape and turn the jury against the victim. Prior to changes implemented with the Violence Against Women Act of 2005, justice officials often required victims of sex offenses to submit to polygraphs before any further investigation or prosecution of the offense would occur (Lisak, Gardinier, Nicksa, & Cote, 2010). This practice can both reflect and reinforce the rape myth that women often falsely “claim” rape if they regret sexual encounters, even though research puts the rate of false rape reports at just 5.9% (Lisak et al., 2010). Stereotypes that false allegations are common have real consequences for victims who believe their report of rape will be challenged or met with suspicion, with sexual violence victimization persistently one of the most underreported types of crime (Fisher, Daigle, & Cullen, 2010). Marginalized groups who experience crime victimization may be at particularly high risk of revictimization by the system because of their structural disadvantage within society. As noted in the earlier edition of this book, when justice workers label a victim as “different” from himself/herself, then it becomes more likely that they “distance themselves from the victims, blame them for their plight, and subsequently, fail to meet expectations of justice” (Jones, Morgan, & Perry, 2009, p. 271). Justice

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Compassion Fatigue and Self-Care Among Victim Advocates: Transcending SelfSabotage Through Aggressive Self-Love Myra Ferell-Womochil, Executive Director of Victim Witness Services for Coconino County Vicarious trauma, which is sometimes referred to as compassion fatigue, is what “. . . happens when we accumulate and carry the stories of trauma—including images, sounds, and resonant details—we have heard, which then come to inform our world view” (Joyful Heart Foundation, 2016). When experiencing vicarious trauma, our individual responses are vastly different but do reflect a similar impact on the emotional, physical, psychological, behavioral, and relationship spheres in our lives (Lipsky, Burk, & Conte, 2009, p. 47). In other words, people who work with victims of crime are at heightened risk of this impact because of their regular exposure to others’ victimization. The words “Advocate for Victims of Crime” do not really illustrate the work an advocate does. An advocate attempts to bring options, understanding, and closure to situations that have no logic. We work with victims of severe child sexual abuse, with dads whose daughters were just raped and beaten, with mothers whose children jumped in front of a moving train, with women whose husbands slashed their faces with a box cutter. We work with 1,200+ of these types of stories a year. Every day there is a new and horrible situation. This type of work, if left unchecked, can dramatically and negatively impact an advocate or any first responder. Vicarious trauma is the transformation in the “self” of a trauma worker. It is the disruption of meaning and hope, it is the introduction to self-medication, and it is the shift from an optimistic to negative world view. Vicarious trauma leads to burntout unempathic staff, unhealthy caseworkers, and unkind and angry first responders. It is the most damaging neurosis a first responder can develop because advocates and first responders depend upon a compassionate and hopeful disposition to simply do their work effectively. It was 2:30 in the morning on a Tuesday, and I was looking at the mirror. I was slightly drunk, and I had gained 50 pounds. I was just coming inside from smoking several cigarettes, a habit I recently picked up after several years of being a successful non-smoker, and that’s when I realized that I was experiencing vicarious trauma. I had spent over a decade listening, witnessing, and working with people of all ages who have experienced severe violence, death, and tragic accidents. I was swimming in the images of various crime scenes and bodies. Without realizing it, I had absorbed trauma in the very core of my being affecting my physical, emotional, and psychological health, my relationships, my world view, and my ability to continue doing work that I was so passionate about. For me, I was self-medicating with alcohol, coping with stress with nicotine and junk food. I was no longer sleeping well or exercising regularly. I

adopted a very skeptical and negative world view and was losing my ability to be optimistic or compassionate. I had several symptoms of vicarious trauma. Like so many advocates before me, I was clearly impacted by the work that I was doing in a very negative way. Something had to change. The mission of Victim Witness Services for Coconino County, Arizona, is to provide compassionate support and resources to victims, witnesses, and survivors of crime and crisis through effective response and community outreach. We do that through 24/7 onscene crisis response including death notification ­s ervices. We also provide court advocacy, case management, aftercare through support group, and other cutting-edge techniques and we work with offenders. When I was offered the position as Executive Director, I was pleased because I was already feeling a bit “burnt-out” with frontline client work in the field of domestic violence. “Burnout” is a term used to describe various consequences that result from job stress. In the context of working in the criminal justice system, burnt-out staff can be highly problematic. Compassion, patience, understanding, and empathy are essential traits for any profession exposed to victims of crime and/or crisis. Burnt-out staff lose their abilities to work compassionately with clients, thus leading to secondary victimization of victims and further compassion fatigue among staff. Here was my chance to continue work in a field I had grown to love, but in a systems capacity. The work was fascinating and at the end of most days, I went home feeling like I made difference. This position was why I went to college in the first place. When I really acknowledged that I was experiencing vicarious trauma, it was problematic for me individually, and also a concern for the whole agency. It was up to me to institutionalize the practice of self-care to prevent vicarious trauma or compassion fatigue, and I was not doing a good job. On an individual level, I began aggressively pursuing high levels of self-care and self-love. I shifted my eating habits, increased my water intake, quit alcohol, quit smoking (again), started a yoga practice, and started to paint and hike. I immediately started to feel better and a year later I lost that 50 pounds. On an institutional level, I began to look at practices that hindered staff members’ ability to practice selfcare. I identified vicarious trauma as an issue and recruited support from the leadership team. We sought and received funds that enabled us to implement our “Vicarious Trauma Prevention” program. Here are some of the different strategies we have accomplished:

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• We increased salaries by 16%, and continue to seek more funds to further increase the salary base. • We absorbed 100% of the cost of health benefits for staff. • We increased staff’s ability to take time off and fully utilize their vacation/sick time. • We implemented the ability to bank or flex hours if individuals work beyond 40 hours. • We established a budget line item that allows us to pay for “self-care” incentives; for example, if a staff member responds to a dead baby, we can pay for a massage. • We established free counseling services for staff and volunteers. • We established free weekly yoga class for staff and volunteers. • We have quarterly contests centered on self-care. • We added questions to the client intake form to address vicarious trauma prevention strategies. • We make it a point to “notice” and “reward” high levels of self-care.

As I embarked on the creation of a Vicarious Trauma Prevention program, I realized that it is difficult to institutionalize it because of the diversity in staff and volunteers. What is self-care to one is torture to another; I love yoga, but not everyone does. It has been two years since I really took my own self-love into consideration and in those two years my entire life has dramatically become better. I am suddenly so full of joy and my passion is revitalized. More importantly, the entire Victim Witness Services staff is happier and healthier; thus, our clients are getting better services from a team who is not burnt-out. References Joyful Heart Foundation. (2016). Vicarious trauma. Retrieved from http://www.joyfulheartfoundation.org/learn/vicarioustrauma (accessed April 1, 2016). Lipsky, L., Burk, C., & Conte, J. (2009). Trauma stewardship: An everyday guide to caring for self while caring for others. San Francisco, CA: Berrett-Koehler Publishers, Inc.

workers blame victims for being “uncooperative,” when it is the workers’ judgment of victims’ behavior or “difference” that often alienates victims from seeking help or participating in justice processes. The following section on campus sexual assault highlights some of the problematic relations between sexual assault victims and both criminal justice practitioners and college/university officials responsible for handling these cases. Issues of difference largely influence not only who is the victim of campus sexual assault, but the initial and ongoing contact with the justice system and campus officials as well. The way that sexual assault on college and university campuses has been historically overlooked and negligently handled provides a clear illustration of system failures and oversights due, in part, to perceptions of difference.

Contemporary Issue: Gendered Injustice in Campus Sexual Assault Media coverage of sexual assault on college and university campuses has exploded since 2010, but campus sexual assault is not a new phenomenon. There has been a recent “rediscovery” of the crime that has encouraged significant media coverage, policy changes, and public discourse on the topic. In 2015, the documentary The Hunting Ground was released detailing gripping stories of sexual assault cases on university campuses across the United States. The film highlighted misconduct on the part of university administration by detailing cases in which reports of campus rape were ignored or downplayed to avoid negative publicity for the university. The film identifies lax standards of reporting and investigating, along with a pervasive rape culture that includes acceptance of sexual assault as normal, excessive alcohol consumption, and fraternity life as precipitators of the sexual victimization of women on college campuses. A campus climate that condones and reinforces sexual violence against women by ignoring reports and not punishing offenders simply feeds into the larger structural forces that have promoted violence against women in society. In a 2014 presidential address, Barack Obama said, “It is estimated that 1 in 5 women on college campuses has been sexually assaulted during their time there—1 in

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5.” The “1 in 5” statistic is grounded in research that estimates that nearly 20% of college women and 6% of college men will be victims of attempted or completed sexual assault (Fisher et al., 2010; Krebs, Lindquist, Warner, Fisher, & Martin, 2007; “Dear Colleague Letter” Fact Sheet). Research also indicates that only 12%, or one in every eight, of campus sexual assault cases actually get reported to authorities and females in the age range of 16–24 years are four times more likely to be sexually assaulted than other women (Kilpatrick, Resnick, Ruggiero, Conoscenti, & McCauley, 2007; Sampson, 2000; White House Council on Women and Girls, 2014). Another study of one university found that approximately 63% of college men who previously responded that they had engaged in acts that met the standards of rape or attempted rape admitted to repeating the crime (Lisak et al., 2010). College-aged women are prime targets for sexual assault victimization. These disturbing statistics and the realization that universities are not the “safe havens” we once believed them to be have prompted lawmakers and politicians to take action. In 2014, Senator Kirsten Gillibrand (New York) used the word “epidemic” to describe the current situation of campus rapes across the United States and President Obama established the White House Task Force to Protect Students from Sexual Assault. Additionally, in response to the White House Task Force report, numerous groups sought to develop sexual assault climate surveys for college campuses, which would assess the prevalence of campus rape and the universities’ responses to it. Rutgers University and the Association of American Universities (AAU) were at the forefront of these campuswide surveys, and results from both confirm that one in five college females will be sexually assaulted and most university administrators are ill-equipped to handle these cases. In 2014, the U.S. Department of Education released its first report identifying 55 colleges that were under investigation for the mishandling of sexual assault cases on their campuses (United States Department of Education, 2014). As of January 2016, there were 197 ongoing investigations at 161 colleges or universities for possible violations of Title IX related to students’ reports of rape on campus (Title IX: Campus Sexual Assault Under Investigation, n.d.; see http://projects.chronicle.com/titleix/ for current Title IX investigation information). There is a general understanding that women are overwhelmingly overrepresented as victims of campus sexual assault, but more current research has identified that within the LGBTQ population, campus sexual assault may be experienced at an alarmingly high rate. Results from the 2015 AAU climate survey indicate that women and individuals who identify as LGBTQ have the highest rates of campus rape (Cantor, Fisher, & Chibnall, 2015). In regards to the race/ethnicity of victims of campus sexual assault, and due to the fact that many college campuses remain predominantly white, there is very limited research regarding racial or ethnic difference and campus sexual violence. Across various studies with mixed results, Native American women, African-American women, and white women were all found to experience sexual assault victimization at higher rates than the other ethnic groups (Gross, Winslett, Roberts, & Gohm, 2006; Koss, Gidycz, & Wisniewski, 1987; Mohler-Kuo, Dowdall, Koss, & Wechsler, 2004). Clearly, this is an area that requires further investigation to understand and clarify prevalence rates among different racial and ethnic groups on campus. Outside of gender and race, research has identified other factors that increase risk of sexual assault victimization on college campuses. Fisher, Cullen, and Turner (2000) found that prior sexual assault victimization led to an increased risk of future sexual assault victimization among college females. Drinking is also a considerable risk factor for college women with high levels of intoxication leading to increased risk for sexual victimization (Fisher et al., 2000; Mohler-Kuo et al., 2004). Additionally, academic year, residential status, and sorority membership are also related to sexual victimization. Studies have found that females are most likely to be victimized if they are in their first four semesters, if they live on campus versus off campus, and if they are in



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a sorority (Fisher et al., 2000; Gross et al., 2006; Mohler-Kuo et al., 2004; Tyler, Hoyt, & Whitbeck, 1998). As noted earlier, theoretical approaches that investigate the routine activities on college campuses underscore the importance of campus climate and normative culture along with exposure of women to motivated offenders in explaining such patterns of sexual violence. The reporting of victimization should be understood in the context of the characteristics of victims and offenders, as well as the social meanings associated with rape myths and difference. The self-definition by victims of sexual violence that what happened to them is “real rape” deserving a justice response is linked to social meanings that stranger rape is “more serious.” Campus sexual victimization is more likely to involve offenders known to the victim, and this means many victims do not identify their experience as “worthy” of a legal or an administrative response. Rape culture on college campuses ref lects and perpetuates stereotypical ideas about masculinity, heterosexism, and whiteness, and therefore “otherness” and victim blaming impede attention to differential risks and reporting needs of certain groups (Jones, de Heer, & Prior, 2016). College women do not frequently report their sexual victimization to police, yet they are more likely to do so when their offender is of a different race or ethnicity. Previous research shows mixed results about how race impacts reporting of sexual victimization, as some studies show that white women are more likely to report, while others show that African-American women are more likely to report (Fisher et al., 2010). If African-American women do show increased likelihood of reporting to police, then this provides a positive contrast to evidence that the relationship between nonwhites and justice officials is necessarily negative or one of resistance. While college campuses work to improve the reporting and support for student victims, they likely need to give further attention to the dynamics associated with reporting and different identities. In addition, the social contexts in which rapes occur matter for reporting behavior, and the general demographics on college campuses along with any culturally sensitive programming become important dynamics in the reporting and help-seeking behavior by victims. The rediscovery of campus sexual assault has led to requirements for more research on the prevalence and incidence of sexual violence, using more detailed definitions, and to capture the experiences of victims. Campus prevention programming that aims to be more inclusive of the diverse characteristics of its students is needed. For example, suggested programming includes scenarios and images of male and LGBT victims of sexual assault and victimization of Native American students. Campus climate surveys, while not yet mandated, are intended to provide a campus with more accurate information about the realities of sexual assault, victim experiences, and perceptions of safety and support on campus (White House Task Force to Protect Students from Sexual Assault, 2014). Universities should be careful to use newer gender-neutral definitions of rape in both climate surveys and campus policies so that victimization of male or LGBT students is measured. Campuses might also further integrate culturally appropriate programming with victim advocacy in recognition of the additional biases and barriers to reporting faced by victims with overlapping marginalized identities. Due to the growing concern over the prevalence of campus sexual assault and the negligent responses by university officials, there have been increased initiatives and legislation aimed at positioning the victim in a more active role. The White House Task Force and other federal and state legal actions are creating new requirements for colleges and universities to handle campus sexual assaults. In April 2011, the Department of Education’s Office for Civil Rights released its “Dear Colleague” letter to explain the enhanced protections under Title IX, the federal gender-equity law barring discrimination in education, for sexual violence victims on campus. Under

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Title IX, schools must report and investigate gender-based issues of sex discrimination and violence such as harassment or sexual violence, including incidents based on sexuality or gender identity expression. This new application of an existing law helped redefine and recognize the gendered injustice of campus sexual assault while providing another tool to encourage victims to report on campus and improve the university response to victims. As noted earlier in the book, law can shape and define difference or identities, and the use of Title IX appears to be one such example of an attempt to positively frame and legislate a justice response to campus sexual assault around difference.

Victims’ Rights and Difference While Title IX mandates have strengthened the role of victims’ rights in the context of sexual assault in higher education currently, historically, victim-centered legislation has been slow to develop. Throughout our country’s recent history, the criminal justice system and its processes have marginalized crime victims, their participation often limited to that of a witness to the prosecution who cannot otherwise participate (Twist & Williams, 2015). Prior to the 1990s, victims had few legal rights to participate, and advocates of crime victims’ rights began to challenge the ways in which victims were excluded or their stories and experiences manipulated in the name of “justice.” Even as some raised concerns that including victims would create bias or interfere with defendants’ rights, it was clear that police and prosecutors were already using images and narratives about victims of violence to justify punitive policies and outcomes for offenders. A national Victims’ Rights Movement along with activism and victim advocacy at the state level led to important changes to support victims’ participation in justice processes. As of this writing, 33 states have amended their state constitutions to include crime victims’ rights (Twist & Williams, 2015), and all other states have statutes defining some rights for victims (Garvin & Beloof, 2015). While there have been political efforts to amend the U.S. Constitution to include victims’ rights, currently the federal protections for crime victims are defined under laws passed by Congress, such as the Crime Victims’ Rights Act in the Justice for All Act enacted in 2004. Some argue that the constitutional protection of victims’ rights provided symbolic significance comparable with the rights of the accused, while also providing greater strength and enforceability to these rights (VictimLaw, n.d.). Typical legal rights for victims include the right to be heard and participate in criminal justice processes, the protection from harassment, the right to court-ordered financial restitution from the offender, and the right to submit victim impact statements during the sentencing phase. Often victims will hear about their rights from a victim advocate who is called to the crime scene, or from police officers who may refer them or give them a card or pamphlet with victim services information. Victim advocates provide more detailed information about how and when victims can participate in justice processes. Advocates also explain the rules and process for victim compensation, which is a government source of funding available via application to cover medical expenses, lost wages, or funeral costs. States and counties have also worked on outreach to raise awareness and communication about victims’ rights with the creation of websites and mobile phone applications that include information about the rights of victims and available victim services. Phone apps also have been targeted at the social context of young people in acquaintance rape scenarios at parties or on campuses as a quick way to reach out for help. The mobile phone app examples in the figure on p. 129 include (from left to right): Circle of 6, On Watch On Campus, and Here for You (top row); Safety Siren, Panic Guard, and My Force (second row); and War Against Rape, bSafe, and Companion (bottom row).



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I’M HERE FOR YOU LET’S TALK

Even though police and victim advocates typically inform victims of their rights and the availability of support like victim compensation, many victims do not fully understand or take advantage of these rights. Victims sometimes do not report to police and fail to exercise their rights because they do not believe their victimization was “serious enough” or because they blame themselves. Some victims might think their harm or injuries are not worth the additional steps of reporting, whereas others might downplay what happened to them based on assumptions that “real” victims are more deserving. In other words, some might minimize a robbery if very little money was stolen, or they might minimize an attempted rape because it was thwarted. While some police and prosecutors portray victims as “uncooperative,” past research has shown that victims are often overwhelmed or confused by their role in justice processes, such as where or when to participate or the inconvenience of doing so (Kelly, 1984). It is also important to consider the ways in which difference plays a role in whether victims report or seek services or rights. Both victims and service providers may evaluate whether an experience is “deserving” of response, and victims imagine how justice officials may judge their “worthiness” according to how closely they match “ideal victim” characteristics of young, old, white, or female. So, the same barriers that prevent identification with the victim role will also prevent the delivery of services and rights to victims. Victims’ rights include money that comes from government compensation funds, and victims can apply for these funds to help cover hospital bills from injuries, or to compensate for lost wages associated with missed work due to the victimization itself or related time spent in court. Some victims find the process of applying for

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compensation time-consuming, or just “one more thing” negatively associated with a victimization experience they want to forget. Even though compensation may reimburse victims for expenses such as time off work, some victims may find it difficult to take time off work if their families are relying more immediately on that income or they fear losing their jobs. Language barriers, or the time and geographic distance required to access services, can also prevent victims from exercising their right to compensation. Mistrust of justice agencies, such as the well-documented mistrust of police by communities of color (noted in other chapters in this book), is also reflected in victim services and applications to compensation funds. For instance, even as the federal September 11th Victim Compensation Fund was explicit about including undocumented immigrants for monetary payments, many did not search for lost relatives at hospitals or apply for compensation because they feared questions about their immigration status or could not “prove” their presence at the workplace (Delano & Nienass, 2014). When such difference creates barriers, improved victim service delivery requires additional community outreach that builds on existing trusted ties or organizations in the community to help bridge the distance between victims and justice officials. Throughout this chapter, we have discussed victimization within many different contexts. We have presented information on how victimization is characterized using statistics from the NCVS, through theories of victimization, from the perspective of  the victim’s formal and informal roles within the justice system, and through legislation on victims’ rights. Throughout each of these subsections, we have acknowledged the intersection between victimization and difference and focused on the impact that difference can have on victim experiences. We further situated the social construction of difference in the context of the socially constructed meanings of victimhood; both matter for the victim experience in seeking help or support in society and through the justice system. We have used the example of campus sexual assault to illustrate how difference may manifest itself in a victim experience and how it may influence responses to and outcomes associated with a victimization of this kind. In closing, difference is embedded in our understanding and conceptualization of victimization and impacts everything from the public’s perception of “real” victims or “appropriate” victim behavior, to the practitioner and justice system responses to victimization, to how the victim views himself or herself. We should be more careful to acknowledge and respect difference, not use it as a tool to further disenfranchise those who have already been victimized.

Questions for Review 1. Define victimization both broadly and as it is discussed throughout the chapter. 2. What is the problem with the perception of an “ideal” victim in terms of difference? 3. Generally speaking, who are the most common victims of crime, and how does this reality compare to perceptions about the “ideal” victim? 4. What are the methodological concerns and flaws associated with the NCVS, and what groups do these particularly affect? 5. How are women of color depicted in violence against women statistics? 6. What is meant by the terms gendered routine activities and feminist routine activities?

  7. What is the importance of attrition in understanding crimes against women?   8. What is secondary victimization? Provide an example.   9. Who are victims of campus sexual assault, how have universities/colleges responded to this crime historically and recently, and how might universities/ colleges improve their response to this crime (i.e., suggestions for programming). Should difference play a role in campus prevention and response to victims? 10. What are some examples of compensation provided to victims and what are some reasons why victims do not always take advantage of programs like victim’s compensation?



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References Addington, L. A. (2008). Current issues in victimization research and the NCVS’s ability to study them. Washington, DC: Bureau of Justice Statistics. Black, M. C., Basile, K. C., Breiding, M. J., Smith, S. G., Walters, M. L., Merrick, M. T., . . . Stevens, M. R. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention. Bonczar, T. (2003). Prevalence of imprisonment in the U.S. population, 1974–2001. Washington, DC: Bureau of Justice Statistics. Buss, T. F., & Abdu, R. (1995). Repeat victims of violence in an urban trauma center. Violence and Victims, l0, 183–194. Cantor, D., Fisher, W. B., & Chibnall, S. (2015). Report on the AAU campus climate survey on sexual assault and sexual misconduct. Association of American Universities. Carney, M., Buttell, F., & Dutton, D. (2007). Women who perpetrate intimate partner violence: A review of the literature with recommendations for treatment. Aggression and Violent Behavior, 12, 108–115. Catalano, S., Smith, E., Snyder, H., & Rand, M. (2009). Female victims of violence (NCJ 228356). United Stated Department of Justice, Bureau of Justice Statistics. Classen, C. C., Palesh, O. G., & Aggarwal, R. (2005). Sexual revictimization: A review of the empirical literature. Trauma, Violence, and Abuse, 6, 103–129. Cohen, L. E., & Felson, M. (1979). Social change and crime rate trends: A routine activity approach. American Sociological Review, 44, 588–608. Daigle, L. E., & Muftic, L. R. (2015). Victimology. Los Angeles, CA: Sage Publications. Delano, A., & Nienass, B. (2014). Invisible victims: Undocumented migrants and the aftermath of September 11. Politics & Society, 42(3), 399–421. Farrell, G., Phillips, C., & Pease, K. (1995). Like taking candy: Why does repeat victimization occur? British Journal of Criminology, 35(3), 384–399. Fisher, B. S., Cullen, F. T., & Turner, M. G. (2000). The sexual victimization of college women (NCJ 182369). National Institute of Justice, Bureau of Justice Statistics. Fisher, B. S., Daigle, L. E., & Cullen, F. T. (2010). Unsafe in the ivory tower: The sexual victimization of college women. Thousand Oaks, CA: Sage Publications. Fisher, B. S., Reyns, B. W., & Sloan, J. J. (2015). Introduction to victimology. New York: Oxford University Press. Franklin, C. A., Franklin, T. W., Nobles, M. R., & Kercher, G. (2011). Risk factors associated with women’s victimization. Huntsville, TX: Crime Victims’ Institute, Criminal Justice Center, Sam Houston State University.

Garvin, M., & Beloof, D. E. (2015). Crime victim agency: Independent lawyers for sexual assault victims. Ohio State Journal of Criminal Law, 13(1), 67–88. Gross, A. M., Winslett, A., Roberts, M., & Gohm, C. L. (2006). An examination of sexual violence against college women. Violence Against Women, 12(3), 288–300. Grubb, A., & Turner, E. (2012). Attribution of blame in rape cases: A review of the impact of rape myth acceptance, gender role conformity and substance use on victim blaming. Aggression and Violent Behavior, 17(5), 443–452. Harris, P. (2011, October 26). Oakland police: Controversial history sets tone for city’s discord. The Guardian. Retrieved from http://www.theguardian.com/world/ blog/2011/oct/26/oakland-police-department- black-community. Jones, L., de Heer, B., & Prior, S. (2016). Campus sexual assault: Conceptualizing vulnerable groups in an unfolding legal context. In M. Paludi (Ed.), Campus action against sexual assault: Needs, policies, procedures, and training programs. Praeger/ABC-CLIO. Jones, L., Morgan, P., & Perry, B. (2009). Irreconcilable differences? Understanding the crime victim/justice worker relationship. In The Criminology and Criminal Justice Collective of Northern Arizona University (Eds.), Investigating difference: Human and cultural relations in criminal justice (2nd ed., pp. 268–284). Upper Saddle River, NJ: Prentice Hall. Kahn, A. S., Jackson, J., Kully, C., Badger, K., & Halvorsen, J. (2003). Calling it rape: Differences in experiences of women who do or do not label their sexual assault as rape. Psychology of Women Quarterly, 27, 233–242. Kansal, T. (2005). Racial disparity in sentencing: A review of the literature. The Sentencing Project. Kelly, D. P. (1984). Victims’ perceptions of criminal justice. Pepperdine Law Review (Victims’ Rights Symposium), 11(5), 15–22. Retrieved from http:// digitalcommons.pepperdine.edu/plr/vol11/iss5/4 (accessed February 15, 2016). Kelly, L. (2010). The (in)credible words of women: False allegations in European rape research. Violence Against Women, 16, 1345–1355. Kilpatrick, D. G., Resnick, H. S., Ruggiero, K. J., Conoscenti, L. M., & McCauley, J. (2007). Drugfacilitated, incapacitated, and forcible rape: A national study (NCJ 219181). Charleston, SC: Medical University of South Carolina, National Crime Victims Research & Treatment Center. Koss, M. P., Gidycz, C. A., & Wisniewski, N. R. (1987). The scope of rape: Incidence and prevalence of sexual aggression and victimization in a national sample of students in higher education. Journal of Consulting and Clinical Psychology, 55, 162–170. Krebs, C. P., Lindquist, C. H., Warner, T. D., Fisher, B. S., & Martin, S. L. (2007). Campus Sexual Assault (CSA)

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study. Washington, DC: U.S. Department of Justice. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/ grants/221153.pdf. Langton, L., Berzofsky, M., Krebs, C., & Smiley-McDonald, H. (2012). Victimizations not reported to the police, 2006–2010 (NCJ 238536). Special Report. United States Department of Justice, Bureau of Justice Statistics. Lisak, D., Gardinier, L., Nicksa, S. C., & Cote, A. M. (2010). False allegations of sexual assault: An analysis of ten years of reported cases. Violence Against Women, 16, 1318–1334. Loftus, B. (2008). Dominant culture interrupted: Recognition, resentment and the politics of change in an English police force. British Journal of Criminology, 48, 756–777. Lonsway, K. A., & Archambault, J. (2012). ‘The justice gap’ for sexual assault cases: future directions for research and reform. Violence Against Women, 18(2), 145–168. Marwick, A., & Boyd, D. (2014). ‘It’s just drama’: Teen perspectives on conflict and aggression in a networked era. Journal of Youth Studies, 17(9), 1187–1204. Mawby, R. I., & Walklate, S. (1994). Critical victimology: International perspectives. London: Sage Publications. Mohler-Kuo, M., Dowdall, G. W., Koss, M. P., & Wechsler, H. (2004). Correlates of rape while intoxicated in a national sample of college women. Journal of Studies on Alcohol, 65, 37–45. Mustaine, E. E., & Tewksbury, R. (1998). Predicting risks of larceny theft victimization: A routine activity analysis using refined activity measures. Criminology, 36, 829–858. National Coalition for the Homeless. (2009). Minorities and homelessness. Bringing American Home Campaign. Washington, DC: Author. Outlaw, M., Ruback, B., & Britt, C. (2002). Repeat and multiple victimizations: The role of individual and contextual factors (NCJ 194055). National Institute of Justice. Planty, M., Langton, L., Krebs, C., Berzofsky, M., & Smiley-McDonald, H. (2013). Female victims of sexual violence, 1994–2010 (NCJ 240655). Special Report. Washington, DC: U.S. Department of Justice. Posick, C., Rocque, M., & McDevitt, J. (2013). One scale fits all? Assessing racial differences in the measurement of attitudes toward the police. Race and Justice, 3(3), 190–209. Reisig, M. D., & Parks, R. B. (2000). Experience, quality of life, and neighborhood context: A hierarchical analysis of satisfaction with police. Justice Quarterly, 17, 607–630. Sampson, R. (2000). Acquaintance rape of college students. Center for Problem-Oriented Policing. Schwartz, M. D., & Pitts, V. L. (1995). Exploring a feminist routine activities approach to explaining sexual assault. Justice Quarterly, 12(1), 9–31. Sleath, E., & Bull, R. (2012). Comparing rape victim and perpetrator blaming in a police officer sample: Differences between police officers with and without

special training. Criminal Justice and Behavior, 39, 646–665. Spalek, B. (2006). Crime victims: Theory, policy, and practice. New York: Palgrave Macmillan. The Sentencing Project. (2008). Racial disparity in the criminal justice system: A manual for practitioners and policymakers. Retrieved from http://www.sentencingproject. org/doc/publications/rd_reducingracialdisparity.pdf. Tillyer, M. S., Wilcox, P., & Gialopsos, B. M. (2010). Adolescent school based sexual victimization: Exploring the role of opportunity in a gender-specific multilevel analysis. Journal of Criminal Justice, 38, 1071–1081. Title IX: Campus Sexual Assault Under Investigation. (n.d.). The Chronicle of Higher Education. Retrieved from http://projects.chronicle.com/titleix/about/. Tjaden, P., & Thoennes, N. (2000). Extent, nature, and consequences of intimate partner violence: Findings from the National Violence Against Women Survey (NCJ 181867). Washington, DC: U.S. Department of Justice. Truman, J. L., & Langton, L. (2015). Criminal victimization, 2014 (NCJ 248973). United States Department of Justice, Bureau of Justice Statistics. Twist, S. J., & Williams, K. E. G. (2015). Twenty-five years of victims’ rights in Arizona. Arizona State Law Journal, 47, 421. Tyler, K. A., Hoyt, D. R., & Whitbeck, L. B. (1998). Coercive sexual strategies. Violence and Victims, 13(1), 47–61. United States Department of Education. (May 2014). U.S. Department of Education releases list of higher education institutions with open Title IX sexual violence investigations. Retrieved from http://www.ed.gov/news/ press-releases/us-department-education-releases-listhigher-education-institutions-open-title-i (accessed February 15, 2016). United States Department of Justice, Federal Bureau of Investigation. (September 2010). Crime in the United States, 2009: Offenses cleared. Retrieved from https:// www2.fbi.gov/ucr/cius2009/documents/clearancetopic. pdf (accessed October 25, 2015). VictimLaw. (n.d.). About victims’ rights. Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice. Retrieved from https://www.victimlaw.org/ victimlaw/pages/victimsRight.jsp. Walklate, S. (2007). Men, victims and crime. In P. Davies, P. Francis, & C. Greer (Eds.), Victims, crime and society (pp. 142–153). London: Sage Publications. Websdale, N. (1999). Understanding domestic violence. Boston, MA: Northeastern University Press. White House Council on Women and Girls. (January 2014). Rape and sexual assault: A renewed call to action. Washington, DC. Retrieved from https://www. whitehouse.gov/sites/default/files/docs/sexual_assault_ report_1-21-14.pdf. White House Task Force to Protect Students from Sexual Assault. (2014). Not alone. Retrieved from http://www. nsvrc.org/publications/reports/not-alone-first-report- white-house-task-forceprotect-students-sexual-assault.

PART THREE ▪ ▪ ▪ ▪ ▪

Categories of Difference: Class and Race

As we discussed in the introduction, the categories of difference provided throughout the rest of the text are by no means exhaustive. Rather, they serve as broad examples of how socially constructed identity categories become normalized and the consequences of that normalization. In this section, the chapters depict broad discussions of how class and race influence interactions in the justice system. Each of these chapters represents part of a larger discussion and reflects our attempt to emphasize the importance of understanding identities as they overlap, intersect, and interlock with one another. Chapter 9 opens the discussion of class and race. Given that this is the only chapter devoted specifically to social class and there are multiple class categories, this chapter is expansive and broad in its discussion. Michalowski updates and revises the chapter from the second edition and brings to light the ways social class is understood (or misunderstood) in the context of criminal justice. This chapter explores how social class inequality, as one of the central factors shaping the social meaning of identity and difference in the United States, ensures that certain groups and classes of people are criminalized while others are not. Michalowski discusses how crimes committed by the elites are rarely punished while, simultaneously, those in the poorest segments of society are almost always tried, convicted, and imprisoned for their crimes. He provides an understanding of social class beyond just the terms “upper class,” “middle class,” “lower class,” “working class,” and “underclass” and shows how class is more than just about how much money someone has. Rather, it reflects a myriad of characteristics such as access to social, cultural, and lifestyle resources and the opportunity (or lack thereof) to use those resources to increase one’s well-being. He describes economic resources, social resources, political resources, cultural resources, and lifestyle resources to illustrate the relationship of class to other social locations. In looking at class, this chapter investigates how social class shapes the definition of crime, how class influences patterns of law enforcement, how the neoliberal era has intensified the criminalization of the poor and has increased impunity for the wealthy, and, lastly, how the discipline of criminology has contributed to the misperception that lower classes cause the greatest harm to society. To begin our discussion of racial categories, the next chapter in this section (Chapter 10) is a newly written chapter on whiteness and the construction of crime. In this chapter, Maniglia highlights the way whiteness has been normalized in the United States and has therefore constructed those who are not white as “others.” The normalization of whiteness often means that the term “white” is missing from discussions about criminal justice policy and practice. In the chapter, Maniglia points out the way that white privilege manifests itself, often to mean that white people have no race. Those who are not white are identified racially while those who are white are not. Those who are white define race and its influence in the United States. In the criminal justice system, this can become particularly problematic. Given that the vast majority of law enforcement, judges, prosecutors and defense attorneys, and correctional officers, among other justice professionals, are white, this means that one 133

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racial group dominates and makes justice policy decisions about those who are not white. This explains why we often see policies that are beneficial to whites and discriminatory to other racial groups. Maniglia discusses the history of whiteness in the United States and reinforces the notion that race is a social construction with tangible consequences. She deconstructs the idea of white privilege and describes how the unearned advantage of whiteness provides white people (and those who can pass as white) with inherent advantages in the U.S. criminal justice system. She provides data on white offending and victimization and also discusses that whites comprise the majority of criminal offenders and victims of crime—which makes sense given their proportion of the population. However, when news media depicts criminal behavior, such portrayals frequently are not depicting white people. In concluding the chapter, Maniglia points out that the criminal justice profession is largely comprised of white individuals, mostly white males. As such, understanding racial privilege, particularly in the criminal justice context, is important when discussing difference categories and how difference matters. In Chapter 11, Nielsen and Robyn revised and updated their previous chapter to highlight the experiences of Native Americans/American Indians within the criminal justice system. They provide an overview of the historical disadvantage this population has experienced. Despite social movements and national attention to increase the selfdetermination of Indigenous people, Native Americans are still greatly affected by historically discriminatory laws, ongoing efforts by the government to diminish their sovereignty and expand power over them, and the many criminogenic conditions that Native Americans are not legally empowered or structurally able to prevent. After thoroughly detailing the historical context of Native American experiences, particularly as they relate to the government and justice systems, Nielsen and Robyn discuss American Indians as offenders. They emphasize the fact that crime rates for Native Americans are extremely unreliable due to questionable crime data collection methods and stereotypes that justice professionals often have of these communities. The authors then discuss Native Americans as victims of crime and describe how, for example, Native American women are at a disproportionately high risk of being sexually victimized. The authors further highlight the ineffectiveness of the justice system when working with Native communities. The chapter concludes with a discussion of Native Americans as justice service providers and offers insights as to how and why the justice system has failed Native communities. The authors discuss strategies about how to create a justice system that is culturally competent and to help decrease the underrepresentation of Native Americans as service providers. Following Nielsen and Robyn’s discussion of Native American communities, Williams provides a newly written chapter (Chapter 12) on African-American experiences in the criminal justice system. In the previous edition of this text, Smith highlighted the historical discrimination African Americans have faced in dealing with the justice system. In this new chapter, Williams builds on that historical discussion and uses modern-day examples of how and why there is such an overrepresentation of African Americans, particularly African-American males, within the criminal justice system. Williams provides an overview of justice policy and practice and the culpability U.S. laws and policy have in the criminalization of African Americans. She provides historical context to this criminalization and describes the current post-Civil Rights context. As she describes, even in our current post-slavery, post-Jim Crow era, African Americans continue to face disparate treatment by the justice system. Much of this disparate treatment has to do with policies such as the War on Drugs and policing practices including both over- and underpolicing of minority neighborhoods. Williams describes offending rate for African Americans and discusses issues such as driving while black, stop-and-frisk policies, and the militarization of police, among others, that contribute to African Americans as both real and imagined offenders. This chapter is



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important to consider in relation to Chapter 10 because African Americans are considerably more likely to be arrested and incarcerated for their crimes, which gives the American public the idea that they must commit the most crime. However, as was discussed in Chapter 10, whites are the most likely criminal offender but the least likely (depending on other identities categories such as class) to be arrested and incarcerated for their crimes. Williams illustrates that African Americans are at a statistically greater risk of violent victimization than are other populations. She additionally describes hate crime victimization and other types of victimization experiences for African Americans. She concludes the chapter with a discussion of possible ways to bridge the police– community divide in African-American communities in order to prevent the kinds of violence we are frequently seeing between police officers and members of the AfricanAmerican community. The last chapter in this section (Chapter 13) is a newly envisioned chapter on the experiences of Asian Americans in the criminal justice system. Nguyen provides a theoretically rich and historically thorough depiction of the experience of Asian Americans. He provides an overview of Asian migration to the United States and how systematic discriminatory practices and punitive laws have served to racialize the experience of Asian Americans. These experiences have ranged from entry denial, citizenship exclusion, social alienation, and hostility to political disenfranchisement and internment. Nguyen provides discussion of Asian Americans as victims including stereotyping, the perpetuation of negative imagery, and hate crime victimization. He discusses the internment of Asian Americans during World War II and the lingering consequences of that internment. Nguyen then moves to a discussion of Asian Americans as offenders and discusses the model minority myth and gang activity as well as the fact that Asian Americans typically have the lowest crime rates of any other social group. Like other chapters within this section, this chapter concludes with a discussion of Asian Americans as service providers and justice professionals. He describes successful ­justice-oriented service organizations such as the Japanese American Citizens League (JACL) and others that have helped Asian-American communities. The chapters in this section provide readers with a historical overview of the experiences of many different communities of color. Historical processes plus ongoing human interaction and negotiation all reflect how difference is constructed. These chapters highlight how certain groups of difference have historically and contemporarily experienced the justice system. They show the many ways that stereotyping, ­discrimination, and fear perpetuate problematic policies and practices that disproportionately affect non-white communities. As we know, class and race remain some of the main ways we categorize individuals and communities in the United States. This racialization and categorization can have significant consequences for inequality or for achieving justice.

9

▪ ▪ ▪ ▪ ▪

Social Class, Crime, and Justice Raymond J. Michalowski

Chapter Objectives • Discuss the origins of social class divisions in the United States. • Discuss the differences and relationship between wealth and income. • Discuss how social class dynamics influence the definition of what is crime. • Discuss how social class dynamics influence which crimes will receive the greatest attention from the justice system. • Discuss how social class dynamics increase the likelihood that certain class and racial groups will receive closer scrutiny from the justice system, and other class and racial groups will receive relatively little justice system scrutiny.

5 Big Banks Expected to Plead Guilty to Felony Charges, but Punishments May Be Tempered. New York Times, May 13, 2015

Phoenix woman sentenced to 2 years for coupon counterfeiting. Arizona Republic, 2013

On June 16, 2015, five of the largest banks in the world1 agreed to plead guilty to felony price fixing for manipulating the value of dollars and euros in foreign currency markets (FBI, 2015). This was no mere technical violation of some obscure financial regulation. It was a serious crime that stole billions of dollars from hundreds of millions of people by making the cost of borrowing and purchasing more expensive (Andreou, 2012; Douglas, 2012). As punishment for their financial felonies, the banks agreed to pay a total of 5.6 ­billion dollars in penalties (Viswanatha, 2015). No individuals, however, were charged in this corporate price-fixing scam. To the majority of Americans, 5.6 billion dollars might sound like a staggering penalty. For these banks, however, it represented just a small fraction of the total global wealth they control. The fines were expected to have little impact on their profitability. As New York Times reporters Protess and Corkery (2015) observed, For most people, pleading guilty to a felony means they will very likely land in prison, lose their job and forfeit their right to vote. But when five of the world’s biggest banks plead guilty to an array of antitrust and fraud charges, life will go on, probably without a hiccup. 1

Citicorp, JPMorgan Chase & Co., Barclays PLC, The Royal Bank of Scotland, and UBS AG.

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No natural person was held responsible for this theft. No one went to prison. No bankers lost any rights. Why? Because the legal systems in capitalist countries are designed to allow wealthy corporate criminals to engage in harmful acts behind the legal façade of corporate structures (Pierce, 2015). As Sen. Elizabeth Warren (D-Mass.) said of this impunity for the wealthy wrongdoers, “it is business as usual, and it stinks” (Warren, 2015). Several weeks after the sweetheart deal for felony banks and bankers, a Phoenix, Arizona woman pleaded guilty to buying counterfeit manufacturer’s coupons overseas, and then selling them online. Customers who purchased the coupons could use them to buy products from manufacturers and, in some cases, could get additional money if the value of the coupon exceeded the price of the item. For her involvement in this scam, the woman was sentenced to two years in prison and ordered to pay 5 million dollars in restitution. Unlike the price-fixing bankers, she will live behind bars for two years of her life and will suffer the loss of many rights, including the right to vote. Long after she is released from prison, she will find herself faced with a crushing restitution debt. What do these two cases tell us about criminal justice? First, wrongdoing that facilitates corporation profit-making is less likely to be treated as criminal than wrongdoing that hurts corporate profits. Second, criminal justice systems in capitalist countries are structured in ways that protect established class structures by focusing on the identification, prosecution, and punishment of crimes committed by less advantaged members of society, while ensuring that economic and political elites are relatively free to accumulate wealth and power even when their strategies for doing so cause avoidable death, injury, sickness, or impoverishment. This may sound like a harsh indictment of the well-meaning men and women who work in the justice system. But if we think about the justice system as an expression of wider political–economic ­processes that determine what will be defined as crimes and what justice system workers will be asked to do, the class-based and class-biased realities of crime and punishment become more apparent. This chapter explores how social class, as one of the central factors shaping the social meaning of identity and difference in the United States, ensures that the most harmful crimes committed by elites will rarely be punished, while simultaneously ensuring that most of those who are victims of street crimes and nearly all those who are arrested, go to court, and find their way to America’s currently overcrowded prisons and jails will come from the poorest segments of the U.S. class structure (Beck & Glaze, 2004; Pastore & Maguire, 2007; Roberts, 2012; Sykes & Pettit, 2014; Western, 2007). In doing so, it considers (1) how social class shapes the definition of crime, (2) how social class influences patterns of law enforcement, (3) how the neoliberal era has intensified criminalization of poor, and increased impunity for the wealthy, and (4) how the discipline of criminology has contributed to the misperception that lower classes cause greatest harm to society.

What is Social Class? Social class is a component of social difference in the United States that both reflects and shapes the unequal allocation of life options and social worth among various groups of people. Social class combines with other elements of identity such as gender, race, sexual orientation, and age to create multifaceted social identities. No man or woman ever appears on the street or in the U.S. justice system as just a man or a woman, or as nothing more than a rich person or a poor person. Every person is a composite of their class, race, gender, ethnicity, and other markers of social differentiation that make up their identity. We might encounter white working class men, Native American middle class women, or affluent African-American doctors, but we will

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never encounter someone who is just their economic standing, their gender, their race, or their occupational identity. As social beings, everyone is the living intersection of the socially meaningful markers assigned to them by their wider society. Among the many elements that constitute an individual’s social identity, social class position is a powerful shaper of life chances. Markers such as gender, race, and sexual identity also play critical roles in shaping life outcomes. However, the negative consequences of being a woman, homosexual, or belonging to some devalued racial minority, while not eliminated, are often mitigated for those in advantaged social class positions. Being an affluent African-American Harvard college professor, for instance, did not keep Professor Henry Louis Gates from being arrested on the porch of his own home. However, his social class position gave him the economic and social resources to defend himself and seek redress in ways that would not have been possible if he had been a young black man living in a low-income neighborhood (Goodenough, 2009). Similarly, income from a professional occupation and a trust fund will not ensure that an upper-class woman will never be the target of domestic violence, but her options for ending the relationship and building a new life will far exceed those of women who must depend on their abusers for the income that supports them and their children (Goetting, 1999; Koustuv, 2011). When people talk about social class, they frequently use terms like “upper class,” “middle class,” “lower class,” “working class,” and “underclass.” These terms signify more than just the money people have. Social class labels refer to a constellation of characteristics that reflect not only the size of one’s bank account, but also access to social, political, cultural, and lifestyle resources, and the opportunity, or lack of ­opportunity, to use those resources to increase one’s well-being. Economic resources consist of the income and wealth controlled by different social groups. Income refers to what people earn each year in the form of wages or dividends from investments. For most of us, our income is what we see in our paychecks at the end of a week or month. Wealth, by contrast, refers to the total value of everything someone owns, minus his or her debts. This wealth is often termed “net worth.” The distribution of wealth and income in the United States is highly unequal, as will be discussed in detail further on. Social resources refer to the ability of group members to benefit from relationships with others who can advance their interests by doing helpful things like providing references to employers or landlords, co-signing loans, providing insider stock market tips, fixing tickets, or even just offering a couch to sleep on after an eviction. Social resources also include the authority granted to certain professionals such as politicians, corporate managers, law enforcers, educators, clergy, or medical practitioners to make decisions that affect the lives of others. Political resources take both direct and indirect forms. Some members of dominant social classes are able to exert direct influence over government actions by holding positions as political leaders or governmental functionaries. Others have the ability to influence governmental action indirectly. At the upper end of the social spectrum, indirect political power is utilized through such things as large donations to political candidates and parties, kickbacks to government contractors, or belonging to the same social circles, country clubs, and churches as those with direct political power. Less affluent and less directly connected social groups can sometimes exert indirect influence over government actions through social movements (Piven & Cloward, 1977; Tilly & Wood, 2012). In June 2015, for instance, in the aftermath of the murder of nine African-American members of a bible study group in Charleston, South Carolina, African Americans and their supporters successfully pressured the state’s governor to support removing the Confederate battle flag from flying over government buildings because the murderer, Dylan Roof, had used the flag to symbolize his hatred of black people (Barbaro & Martin, 2015). In this case, a social movement by people



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outside elite circles exerted indirect pressure on government decision making. The important difference between elite and non-elite influence over government, however, is that elites as individuals can have significant impact on political decision making, while non-elites can usually only influence government activities when many of them are able to come together to create a social movement. Cultural resources refer to the ability of social groups to mold popular consciousness by influencing the content of mass media, education, or other platforms of public communication (Garland, 2002; Ritzer, 2007). The rise of the Internet and digital communications has created new opportunities for both dominant and subordinate classes to insert their message into the broad stream of popular culture. The conflict that emerged in 2014 over whether or not the U.S. government would support “net neutrality,” a policy designed to keep wealthy corporations from privileged access to Internet bandwidth, represents a current, ongoing element of class struggle over the content of culture (Wu, 2013). Despite the potential of net neutrality to democratize access to communications, however, the current reality is that the most far-reaching mass media voices come from the large, profit-driven corporations that remain in control of the bulk of the mass-mediated messages received by people both in the United States and around the world (Bagdikian, 2004). Finally, lifestyle resources refer to the degree to which group-based patterns of learned behavior and belief are valued or devalued within a society. These include such things as modes of speech, style of dress, expressed attitudes and values, and preferred and/or available pleasures. As a number of studies of ghetto youth of color have shown, the less individuals look, talk, dress, and act in the approved middle-class manner, the less likely they are to be hired, even when they have the necessary skills for the jobs they seek, and the more likely they are to be suspected of criminal activity (Anderson, 2000; Bourgois, 1995; Muñiz, 2015; Wilson, 1987). In 2014 and 2015, high-profile killings of unarmed black men by police and the rise of the Black Lives Matter movement were a vivid demonstration of how appearance and demeanor that does not comport with dominant norms increase the chances that someone will be the victim of excessive and possibly lethal police violence (Kang, 2015). As a recent study by the Washington Post revealed, as of December 24, 2015, even though black men make up only 6% of the population, they are 40% of all the unarmed people killed by police that year (Kindy, Fisher, Tate, & Jenkins, 2015). This demonstrates the ways in which our culture prepares police to perceive erratic, unarmed black men as more threatening than erratic unarmed white men. When thinking about social class, it is important to recognize that membership in a social class is not as much a position in society as it is a relationship with those in different social locations. If the annual wealth produced in a society were shared equally among its members, there would be neither wealthy people nor poor people. It is the poverty of some people that makes the wealth of others possible. Of equal importance, the specific distribution of wealth among the haves, have-somes, and have-nots is not a mechanical reflection of natural differences and/or hard work among people, as neoliberals are inclined to argue (Hagopian, 2011). It results from deliberate decisions about how to organize societies, arrange markets, and divide the wealth produced within that society among its members. Consider the case of the minimum wage in the United States. In 2015, the minimum wage was $7.25, 35% lower in buying power than the minimum wage of workers in 1968 (Bureau of Labor Statistics, 2015). At $7.25 an hour, a minimum-wage worker in 2015 earned $15,080 for full-time, year-round work. This was not enough to afford a two-bedroom apartment in any state in the United States. It was so low that full-time, minimum-wage workers qualified for food stamps. After payroll deductions, full-time minimum-wage workers fell below the official poverty level in most states, and all this for working at what are often the dirtiest and most dangerous jobs in country (NLIHC, 2014; U.S. Food and Nutrition Service, 2015).

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LOW-WAGE WORKERS ARE FAR MORE EDUCATED THAN THEY WERE IN 1968 46%

79%

48%

17%

1968

2012

COLLEGE EXPERIENCE

1968

2012

HIGH SCHOOL DIPLOMA/GED

BUT WE’RE PAYING THEM LESS From 1968 to 2013, the federal minimum wage has decreased:

23%

FIGURE 9.1  Wages and Education Note: Data for bottom fifth of wage earners. “College experience” means went to “some college” or had college or advanced degree. Source: EPI analysis of education attainment from March CPS for 1968 and 2012.

The low rate of return to workers at the bottom of the U.S. wage scale has little to do with their qualifications. Nor are these workers primarily high school students earning spending money. Minimum-wage workers in 2013 were older, more experienced, and more educated than their counterparts in 1968. Overall, 79% held high school degrees as compared to only 48% in 1968, and 46% had a college degree or some college education as compared to only 17% in 1968 (Mishel, 2014) (see Figure 9.1). The minimum wage, like most other factors that shape the social class structure in the United States and around the world, is the outcome of political decisions that have been shaped by elite interests. The 2015 minimum wage in the United States was worth 35% less than in 1968 because business interests, that is, the financier class that has come to dominate the U.S. government, were successful in their efforts to keep the U.S. Congress from raising that wage, despite continuing working class efforts to restore the value of the minimum wage (Sklar, Mykyta, & Wefald, 2002; Walterman, 2000). Whether it is minimum wage, tax rates, corporate welfare, or economic assistance for poor families, decisions made in the political arena play an important role in shaping people’s life chances. Whether one agrees or disagrees with the current allocation of resources, it is important to recognize that the class structure that produces and reproduces inequalities is a political choice, not the natural outcome of some imaginary free market (Kotz, 2015). There have been many attempts to create precise definitions of the U.S. class structure by determining the key characteristics of social class, and identifying where one class ends and another begins (see, for example, Bartley & Bruce-Briggs, 1979; Szymanski, 1983; Therborn, 2013; Wright, 1985, 1996). Rather than treating social classes as distinct groups bounded by precise lines, however, it is more useful to consider how the central elements of social class intersect to place individuals in loosely bounded groups that range from the least to the most advantaged. The uppermost reaches of social class formation in capitalist nations such as the United States are inhabited by individuals who (1) enjoy large annual incomes; (2)



Chapter 9  •  Social Class, Crime, and Justice    141

control substantial wealth, not only in the form of real estate and material objects, but also in the form of financial securities such as stocks, bonds, and hedge funds; (3) exert substantial influence over making and implementing laws and governmental policy; (4) are able to use their wealth and political power to shape the content of mass media; and (5) live the kinds of lifestyles lauded in the popular media, and that many people envy and would like to emulate. The least well-off are those who (1) have low or no income, (2) own little material property and few or no financial securities, (3) enjoy little influence over government or media,2 and (4) often exhibit styles of speech, dress, and conduct that are viewed as maladjusted or “dangerous” by those from more advantaged sectors of the society. Between these two poles are broad groups of people that represent differing configurations of economic, social, political, cultural, and lifestyle resources that afford them more than the worst off, but a good bit less than elites. These configurations can sometimes take on curious arrangements, particularly in the world of popular culture where some people who seem to display working class styles (e.g., Duck Dynasty or Ice Road Truckers) or street culture (e.g., hip-hop or “Gangsta” style) use these styles as pathways to income and wealth. The criminological significance of unequal distribution of resources is the ways it influences law making, law breaking, and law enforcement. In the United States, as in most capitalist countries, the social class system enables resource-advantaged groups to implement definitions of crime and justice that ensure elite-caused harms will rarely be treated as crime, while harms more common among less advantaged groups—the so-called “street crimes”—will be criminalized and vigorously punished.

Why do We Have Social Classes? The United States is based on a capitalist political–economic system that, like all capitalist societies, is organized around the idea and practice that people must compete with others in order to claim a share of value created by the society, often referred to as “getting a piece of the pie.” Structuring society around competition is justified by the argument that competition will produce the best outcomes for consumers and a fair distribution of resources because everyone will get the share they deserve based on their level of effort. This widely held image of American society as both competitive and fair, however, is an imaginary and ideological construction that misrepresents real life. Even the most casual examination of who gets what in the United States reveals that many of the wealthiest did not earn their wealth; they had the good fortune to inherit from a wealthy family. Many of the wealthy who do work still earn the majority of their income and accumulate the majority of their wealth from investments, not their labor (Reich, 2015). At the same time, we all know people who worked very hard all of their lives and received almost nothing in return for it. At the other end of the spectrum, business news frequently carries stories about corporate CEOs who were fired after leading their companies into decline or bankruptcy, but were given “golden parachutes” worth a 100 million dollars or more when they left the company (Green, 2013). It is hard to imagine what they did to “earn” this wealth. A fundamental consequence of competitive social organizations is that some ­people will win a larger share of the society’s resources than others. There are many factors that can influence why some people obtain more than others: some are born healthier than others, some start life with more cultural advantages than others, some have more hope, some work harder than others, and so on. Whatever the individual reasons for success or failure, however, these are not the cause of inequalities among large social groups. 2

The one exception is when lower-income populations collectively mobilize into a social movement that garners both media attention and by doing so creates pressure on lawmakers to “do something.”

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When societies are organized around economic competition, the division of society into haves, have-somes, and have-nots is an inevitable, structural outcome (Harvey, 2014; Poulantzas, 1975; Soederberg, 2009). In the absence of other measures that promote equality, these differences will solidify into highly unequal class systems. Under these systems, more advantageously placed social groupings will acquire more than groups that have fewer economic and social resources, regardless of levels of individual effort. The lazy children of a rich family will most often end up better off than the lazy children of poor families, and in most cases, even the hardworking children of poor families will end up poorer than the lazy children of rich families (Economist, 2014; Mitnik, Cumberworth, & Grutsky, 2013). For sure, there are those who overcome great disadvantages to rise to levels of great success, just as there are those who start with every ­advantage and end up with little. These, however, are stories about what happens to some of the people some of the time. The reality for most of the people most of the time is that where they started will play a fundamental role in shaping where they end up. The division of society into social classes has both current and cumulative impacts on the distribution of income and wealth. Income. As Figure 9.2 shows, the poorest 60% of the U.S. population had incomes substantially less than those of the richest 20%. Moreover, the share of national earnings garnered by the richest earners has grown in the last 35 years. Figure 9.3 shows two important facts. The first is that the share received by the richest 1% went from just under 9% of all earnings in 1978 to nearly 24% of all earnings by 2013, a 250% growth in their share of annual earnings. Second, the trend line in Figure 9.3 demonstrates the way in which the distribution of income in the society is political at least as much as it is economic. Income inequality in the United States reached its highest point just before the stock market crash of 1929. The Great Depression that followed ushered in government policies that favored increasing the wages of ordinary workers and decreasing the gap between average incomes and the highest incomes (Badger, 2008; Rauchway, 2008). The result was that the income share of the top 1% 250,000

Income

200,000

150,000

100,000

50,000

0 Poorest 20%

Next 20%

Middle 20%

Next 20%

Lower limit of Top 5%

Quintiles

FIGURE 9.2  U.S. Family Income Distribution: 2013. Note: Income levels of the richest 5% reach several million dollars and extend well beyond limits of the chart and are not included here. Source: U.S. Bureau of the Census, Income: Table F-1. Income limits for each fifth and top 5 percent of families. http://www.census.gov/hhes/www/income/data/ historical/families/.

Chapter 9  •  Social Class, Crime, and Justice    143

1928 23.94%

25%

20%

1916 19.31%

15%

2000 21.52%

1936 19.29% 1941 15.79%

1986 15.92% 2002 16.87%

1932 1923 15.64% 15.56%

10%

1953 9.90%

1978 8.95%

5%

1923

1933

2009 18.12%

1994 14.23% 1944 11.28%

0% 1913

2012 22.46%

1943

1953

1963

1973

1983

1993

2003

2013

FIGURE 9.3  Top 1% Share of Total Pre-Tax Income (1913–2012). Source: Saez (2015).

declined steadily from 24% in 1928 to 10% in 1953, and then held roughly steady for the next quarter-century. The 1980 election of Ronald Reagan, America’s first neoliberal president, reversed this pattern through the institution of trickle-down economics based on the proposition that the country needed to cut taxes and establish other policies that would make the rich richer, in the belief that they would use that wealth to invest in economic growth (Domitrovic, 2014). The flaw in this logic, as the title of one book of the period said, is that “mink coats don’t trickle down” (Ackerman, 1999; Albelda, 1988). As Figure 9.3 shows, by 2012 the richest 1% had nearly regained the share of annual income they had enjoyed before 1929, while incomes of average Americans stagnated. Wealth. Like income, wealth in the United States is distributed unequally, only much more so. The poorest 20% of the U.S. population have negative net worth, with debts exceeding the total value of what they own by a median of $7,000. The next 20% have a median net worth of a few hundred dollars (Vornovitsky, Gottschalck, & Smith, 2012). As Figure 9.4 shows, the poorest 90% in the United States own 25% of all wealth, while the richest 3% own 54%. According to the U.S. Federal Reserve Board (2014), the wealthiest 10% control 85% of all wealth in the nation (see Figure 9.5). Even within this very high wealth group, there is

The distribution of U.S. family wealth, 2013

25%

Bottom 90% of U.S. families

54%

21%

Next 7% of families

Richest 3% of families

FIGURE 9.4  U.S. Family Wealth: 2013. Source: Federal Reserve Board Survey of Consumer Finances, 2014.

144    Part Three  •  Categories of Difference: Class and Race 100% 80%

Ownership of U.S. financial assets, 2013, by family wealth class

84.5%

60% 40% 20% 0%

11.5% 0.8%

3.0%

Bottom half

Next 25%

Next 15%

Top 10%

FIGURE 9.5  Financial Assets: 2013. Source: Federal Reserve Board Survey of Consumer Finances, 2014.

significant upward concentration. The ownership of financial securities resides with the richest 10% of population. This group owns nearly 90% of all financial assets, giving a fraction of the population significant control over the U.S. ­economy and American society (Wolf, 2012). The skewing of wealth toward the richest households, in turn, shapes group access to a number of other class-defining resources such as education, housing, health care, healthy diets, and life-enriching experiences. It also helps ensure that, as Reiman and Leighton (2012) astutely titled their inquiry into unequal justice in America, “The Rich Get Richer and the Poor Get Prison.” The more resources individuals bring to the game, the more they can win. Between 1980 and 2014, for instance, the after-tax income of the richest 5% of the U.S. population, that is, the segment whose income derives mostly from investments and who exercise the greatest influence over government policymaking, grew by 37%, while the after-tax income of the poorest 20% of the population declined by 1%, and the middle fifth—the core of America’s hardworking middle class—experienced only 11% growth, less than one-third the income growth among the top 5% of income earners (U.S. Bureau of the Census, 2015). In other words, the 34 years dominated by neoliberal policies that promised that all Americans would benefit if we just “got government off the back of business” ushered in period of significant growth in income inequality in the United States (Bernstein, McNichol, & Lyons, 2006; Johnston, 2007; Picketty, 2014). This did not occur due to some magical “invisible hand” of the marketplace. It was the direct and intended outcome of those who had the resources to deliberately work the U.S. political system to ensure the passage of tax, labor, investment, and wage laws that would ensure the benefits of growth would accrue largely to richest ­segment of the society (Reich, 2015). The grip of the rich and powerful on the nation’s laws has become even more apparent since the onset of the Great Recession. In 2008, criminal collusion, unregulated speculation, and rampant greed by banks and other financial institutions plunged the U.S. and the world economy into a period of sharp decline (Barak, 2012). The Great Depression that began in 1929 led to policies designed to narrow the gap between the wealthiest and poorest classes. Conversely, the 2008 market collapse and the subsequent Great Recession has led to policies designed to increase rather than decrease the concentration of wealth at the top. Between 2009 and 2011, all gains in wealth went to the richest 7% of American households. The aggregate net worth among this top group rose 28% during the first two years of recovery, while the bottom 93% of all households saw their net

Chapter 9  •  Social Class, Crime, and Justice    145



worth fall 4% (Landy, 2013). Moreover, this wealth is increasingly concentrated in the hands of a small group of super-rich. By 2012, the richest 340,000 people in the United States (one-tenth of 1%) controlled as much wealth as the bottom 90%—307 million people (Fry & Kochhar, 2014). While some unevenness of wealth distribution is inevitable in competitive market societies, just how uneven this distribution will be is the result of political forces. Government policies can intensify or mitigate class inequalities. Progressive taxation of income and capital gains, for instance, can be used to finance programs that help improve the chances of the less well-off, while ­reducing the income and wealth gap between the poorest and the wealthiest groups. Alternatively, governments can pursue policies that make the poor poorer and the rich richer, such as regressive sales taxes instead of progressive taxes on income and capital gains, reduced spending on social programs that would help people close the wealth gap, and labor policies that make worker unionization more ­difficult (Burman, 2013). Government policies can also increase or decrease the criminogenic (producing or leading to crime or criminality) consequences of economic inequality. Policies that exacerbate the daily pressures of living in the lower margins of a highly unequal social system are criminogenic because they increase the likelihood that some people will respond to those pressures by committing crimes for economic or emotional reasons. On the other hand, policies that help replace lost income, provide tax credits that bring people well above poverty levels, and provide a variety of opportunities for children and adults to develop, regardless of their incomes, work in the direction of reducing crime because they reduce the proportion of those who might turn to crime as a result of economic and emotional stressors. At the other end of the economic spectrum, ­scaling back on the regulation and enforcement of corporations and financial institutions increases opportunities for corporate wrongdoing. Current government policies are thus seriously wrongheaded insofar as they increase the likelihood of crime among both the poor and the rich. Among less advantaged social classes, the criminological consequences of inequality depend on whether government policies give greater attention to preventative or punitive justice strategies with respect to street crimes. Preventative strategies such as pre-school education of poor children (e.g., Head Start, free, all-day kindergarten, and pre-kindergarten), housing subsidies, and income support policies for poor families will help reduce the negative effects of income and wealth inequality by lessening the number of low-income children for whom hopelessness becomes a pathway to delinquency, drug use, and maybe even adult crime (U.S. Department of Health and Human Services, 2010; Welsh & Farrington, 2012). Punitive strategies, meanwhile, attack the crime problem through “get tough” tactics such as determinate sentencing, “wars” on crime and drugs, and removal of rehabilitation programs from prisons, all of which have the effect of increasing rather than decreasing the number of people who will become enmeshed in the justice system (Austin & Irwin, 2012; Currie, 2013).

Social Class and the Definition of Crime The unequal distribution of wealth, the basis of social class divisions, creates unequal distribution of political power. Individuals whose money comes primarily from investments or very high-paying occupations, which usually lead to investment as well as earned income, have many more opportunities to influence the formal institutions of government, either by holding political positions or by influencing those who do, than ordinary wage workers, the poor, the unemployed, the young, or the undereducated (Domhoff, 2015; Parenti, 1977). In 2013, for instance, the average U.S. Senator

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reported a net worth of 2.7 million dollars, and the average U.S. Representative had a worth of $850,000 (Choma, 2014; Open Secrets, 2015). For Senators, this is 48 times greater than the $56,000 median net worth of American households. While the gap between U.S. Representatives and ordinary households was less, at 15 times greater, it still represents a substantial disparity between the lawmakers and the rest of society. As noted previously, the rich and powerful make the laws. Factory workers, sales clerks, truck drivers, routine white-collar workers, housewives, students, unemployed, homeless, or any of the other non-elite social groups that together comprise the vast majority of the American social landscape are almost entirely absent from the physical places and social spaces where laws are discussed and made. Why? Because they do not belong to the investor class that has become the law-making class in the United States. Consider the two cases that opened this chapter, the grave crimes of wealthy bankers and the comparatively low-echelon scam by one woman. The difference in treatment reflects a fundamental difference in who makes the laws. Wealthy bankers belong to the same social class as the majority of those making federal laws and ­directing those who enforce them, so it is hard for those in charge of the law to see the harms caused by people like them as real crimes. Josh Bivens (2014) of the Economic Policy Institute captures this link between wealth and how the government approaches crimes, saying, “Congress not only seems more responsive to policy desires of the very rich, but increasingly they are the very rich.” I am not suggesting that laws and policies reflect only the interests of upper ­echelons of society. There are many areas of agreement across social classes over the definition of crime. Both the rich and the poor agree that murder, rape, theft, and burglary should be treated as crimes. It is around crimes of the powerful where the political advantage of the upper class is most manifest. For instance, the majority of Americans view deliberate acts of white-collar crimes such as toxic waste dumping or violations of worker safety as serious as street crimes that lead to injury or death. Most people also view corporate and political corruption such as bribery and illegal campaign financing just as deserving of punishment as ordinary acts of theft (Rebovich & Layne, 2000; Rossi, 1974). Lawmakers, however, come primarily from the strata of society that has the exclusive ability to commit white-collar crimes. As a result, the prosecution and punishment of white-collar, corporate, and political crimes has always been lenient to nonexistent in comparison to street crimes (Tombs & Whyte, 2015). In addition to frequently prevailing in making specific laws, upper social classes have always played an important role in shaping broadly held visions of social danger. As Ysabel Renee (1979) details in The Search for Criminal Man, throughout modern history the idea of who is “dangerous” has shifted to reflect the interests of economic and political elites in criminalizing those whose behavior challenged established hierarchies. During the Middle Ages, when royalty and the Catholic Church constituted the ruling classes, “republicans” (those who believed in political equality) and “heretics” (those who refused to accept Papal religious authority) were viewed as the most dangerous of criminals. During the early stages of mercantile capitalism, those who refused to be evicted from hereditary feudal lands, who refused to work for wages, or who violated the new rules of private property were defined as dangerous and deserving of harsh punishments (Chambliss, 1964; Hall, 1935). With the rise of industrialization, the growing population of poorly paid and urbanized, industrial workers were labeled the “dangerous classes,” and their pleasures, such as gambling and drinking alcohol, were defined as “vices” that should be criminalized and repressed (Brace, 1880; Helmer, 1975). Today, in an era when globalization is threatening to weaken, if not erase, the boundary lines between countries and economies, those who seek to migrate from poor to wealthy countries in order to find work are increasingly being defined as the new “dangerous” class (Michalowski, 2007; Nevins, 2001).



Chapter 9  •  Social Class, Crime, and Justice   147

Since the middle of the nineteenth century, the American justice system has promoted definitions of behavior and morality that paint the poorer parts of society as overpopulated by dangerous people and deviant behavior, while the middle and upper classes are presumed to be primarily industrious and moral. As Edwin Sutherland (1949) noted in his landmark volume, White Collar Crime, when people of “high social status” do wrong in the pursuit of profit, the legal system “administratively segregates” their wrongdoing from crime. In those instances when harmful profit-seeking behaviors do become the targets of legal control, they are typically defined as “regulatory violations,” which carry neither the stigma nor the punishments associated with street crime (Edelhertz & Geis, 1974; Lynch, McGuerrinn, & Fenwick, 2004; Michalowski, 1985). This occurs even though the damage to health, wealth, and life caused by upper-world offenses vastly exceeds those caused by routine criminals from poorer social classes. To paraphrase Woody Guthrie, a popular socialist folk singer of the 1930s and 1940s, some people take your money with a gun, some take it with a fountain pen.3 The criminal justice system, however, is designed primarily to control those who take your money with a gun. Those who commit corporate and political crime with a pen have much less to fear from the justice system. The long-term cultural effects of this process are substantial. Regardless of social class, many people think of the vices and street crimes of lower-income groups as the essence of real crime, and as the appropriate, primary focus of law. This is not, however, because street crimes are the most harmful ones occurring in the United States. It is because, by example and by rhetoric, this is the message the U.S. justice system has given us throughout our lives. This image of the poor as the dangerous class is exacerbated in the United States by the intersection of poverty and race. America’s long and still present practice of viewing people of color as a dangerous “other” has intensified the fear and repression directed at poor people of color (Alexander, 2012). We rarely hear of white-collar offenders being imprisoned for their crimes, but the media regularly treats us with stories of lower-income street criminals making the “perp walk” and being processed through the halls of justice (Altheide, 2006; Barak, 1994; Ericson, Baranek, & Chan, 1991). Consequently, it is easier to believe that ­burglars, robbers, drug dealers, and auto thieves pose a far greater threat to our well-being than corporate criminals. When political leaders repeatedly denounce drug users, gangs, or illegal immigrants as threats to American society, but rarely, if ever, use their cultural authority to condemn corporate executives who, in pursuit of corporate profit, deliberately poison and impoverish large segments of the world’s population, or work deliberately to impede laws that might address the crisis of global climate change that threatens all life on the planet, we are likely to believe that it is more important to control young men of color wearing gang symbols than middle-aged businessmen who believe profit justifies human suffering (Kramer, 2012; Michalowski, 1998; Whyte, 2012). The more the criminal justice system focuses on people from poorer and culturally disdained backgrounds, the more it appears as if the poor are the crime problem. The criminal justice system’s focus on the crimes of the lower-income classes obscures the far greater harm done by white-collar and corporate criminals. Consider the following. According to Rand’s (2015) “crime cost calculator,” serious FBI Index crimes costs U.S. victims about 5 billion dollars annually. When we consider all crimes in the United States, the cost to victims is estimated to be 15 billion dollars (U.S. Department of Justice, 2007). By contrast, business fraud cost victims approximately 834 billion dollars in 2014 (ACFE, 2015). If we add to this all the other variants of elite crime, by 2015 corporate and white-collar crimes cost an inflation-adjusted 1.5 trillion dollars (Bureau of Labor Statistics, 2015; Helmkamp, Townsend, & Sundra, 1996). 3 Apologies to the memory of Woody Guthrie: the laws of copyright, one example of how the powerful exert control over the definition of right and wrong, prohibit me from using his exact, more powerful, words here.

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Based on these data, crimes committed by elites impose an economic burden on s­ ociety that is nearly 100 times greater than victimization by street crimes. The typical argument posed against comparisons like those above is that, although white-collar and corporate crimes cost people money, even a lot of money, they do not cause the physical harms associated with street crime. Claims of this sort, however, fail to take into account the deaths and injuries that result each year from corporate law-breaking in the workplace, the marketplace, and the environment, or the suffering caused every year by unaffordable health care costs, fraudulent investment schemes, and raided pension funds. Each year about 56,000 Americans die due to workplace accidents or occupational diseases such as brown and black lung. Tens of thousands of other Americans die as the result of pollution, contaminated foods, hazardous consumer products, and hospital and physician malpractice, while hundreds of thousands of others are sickened or injured by them (Mokhiber, 2007). These figures encompass only the corporatecaused deaths, injuries, and illnesses occurring in the United States. If we consider that these same products and practices are dispersed throughout the world by the forces of globalization, the number of corporate victims annually rises into the tens of millions. Certainly, not all of these deaths, illnesses, and injuries result from violations of law. Some are due to worker or consumer carelessness, or to exposure to hazards not recognized at the time of exposure. However, there is strong evidence that the majority of these losses occur either because corporations violated laws governing worker safety, consumer product safety, or environmental protection or because the corporations responsible were successful at undermining the creation or enforcement of laws that would minimize these preventable harms (Bureau of Labor Statistics, 2006; OSHA, 1997; Tombs & Whyte, 2015). In June 2015, for instance, a New York Times story revealed that the U.S. Chamber of Commerce was working on behalf of the tobacco industry to keep countries from establishing laws that would require the labeling of cigarettes as hazardous, curtail the marketing of cigarettes to children, and spread the practice of smoke-free environments, even though it has long been known that tobacco smoke is a major cause of cancer (Hakim, 2015). Data about the financial and physical costs of crimes and harms resulting from decisions by corporate managers only touch on the ways capitalist political–economic systems generate harms that far exceed those caused by street crimes. The financial costs and physical harms resulting from both illegal and tolerated environmental pollution (think global warming), the deliberate marketing of unsafe products, and the vast array of financial scams that take not only people’s money, but destroy their financial security and emotional well-being, exceed the physical and financial costs of street crime by a wide margin every year (Lynch & Michalowski, 2006). Yet, it is street crime and street criminals that the law targets most energetically. This is the long legacy of social class bias in the American system of criminal justice.

Social Class, Criminology, and Crime For much of the twentieth century, criminologists gave little consideration to the ways economically and politically dominant elites caused harm in society. Rather, their attention was focused almost entirely on what are sometimes called “street crimes” (Hillyard, Christina, Tombs, & Gordon, 2004; Presser, 2013). Given this focus, the field of criminology largely reproduced the elite view that crime was proof of the defective nature of the poorer segments of society, and that the task facing criminologists was to identify the personal and social defects of the poor that would explain their criminality (Schwendinger & Schwendinger, 1970). This focus eventually generated three meta-theoretical approaches to explaining the relationship between social class and criminality: theories of individual defect, theories focused on patterns social interaction and labeling of behaviors and people



Chapter 9  •  Social Class, Crime, and Justice    149

as deviant, and theories focused on the criminogenic consequences of structural conditions such as poverty, unemployment, inequality, and racial segregation. The first set of theories holds offenders or their families responsible for crime. The second group, interactionist theories, focuses primarily on the actions of ­authorities that exacerbate rather than ameliorate the crime problem. The last set, the structural theories, directs attention toward the ways in which the larger contours of social organization increase the likelihood that some people will commit street crimes as they seek to make their way in that society. As you read about these theories below, it is important to keep in mind that none were designed to explain the grave harms resulting from crimes of the powerful. Annual FBI reports of the characteristics of people who are arrested in the United States provide information regarding gender, age, race, and ethnicity, but little regarding social class characteristics such as income, occupation, or residence. Consequently, the best information we have regarding the social class characteristics of street ­criminals is based on data gathered about those in U.S. prisons and jails. There has, h­ owever, been a notable lack of government interest and funding directed at identifying the social class backgrounds of prisoners. The last detailed survey of prisoners serving felony sentences in state penitentiaries was conducted in 1993. According to this 1993 survey of prison inmates, there is little question that the vast majority of those serving time for criminal offenses come from the poorest ­segments of the society. The survey showed criminal offenders to be less likely to be employed, and earning far lower incomes than the general population. At a time when 7% of the total labor force was unemployed, 45% of those in prison had been without jobs at the time of their arrest. Finally, although the average yearly wage for full-time employed workers at the time was $27,000, and even the poorest 10% of full-time workers earned an average of $13,000 a year, 53% of those in prison had incomes of $10,000 or less before being arrested (Bureau of Justice Statistics, 1993). More recently, a 2002 survey of inmates of local jails revealed a similar pattern. Only 57% of jail inmates held full-time employment at the time of their arrest even though the overall unemployment rate was below 5%. Over half earned less than $15,000 a year (Bureau of Justice Statistics, 2004). In the absence of income data as a measure of the social class of prisoners, some researchers have used education as a measure of the link between social inequality and imprisonment. There has been a long history of evidence that those who are incarcerated tend to be less well educated than the general population (Bureau of Justice Statistics, 2004; Harlow, 2003; Western, 2006; Western & Petit, 2010). However, this link intensified significantly during the imprisonment boom that began in the early 1980s. Western and Petit (2010) found that in 1980, 10% of young black men and 3% of young white men who had dropped out of high school were in prison or jail. By 2008, 37% of black high school dropouts and 12% of white dropouts were ­incarcerated. This represents a nearly fourfold increase for both groups, and provides strong ­evidence that the neoliberal turn in society and justice had significant social class consequences. The favored individualistic explanations for higher rates of street crime among the poorer classes focus on family failings and personal morality. This assessment of crime trends argues that crime is the result not of economic inequality but of “moral poverty,” that is, the failure of families to establish or individuals to acquire, and live by, clear moral understandings of right and wrong (Bennett, Dilulio, & Walters, 1996). This approach typically skews attention toward street criminals. As Dennis Prager (2014), a leading proponent of the immoral individual school of thought, argues, “People (of any income level) who rob, rape, and murder do so because they lack a functioning conscience and moral self-control.” By focusing on a small list of street crimes, he effectively removes elite wrongdoing from the category of crimes that need to be explained. Nor can these individualistic theories explain how corporate organizations, as organizations, become the cause of crime and social harm. Individualistic

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approaches are essentially modern-day equivalents to nineteenth-century theories that blamed the immorality of the working class as the cause of their poverty, rather than asking why industrial workers were paid so poorly. Even if the claim that the proportion of families passing on moral messages to the next generation has declined in recent decades were true, why is this? Might it have anything to do with the substantial decline in family wages among the poorest 40% of the population? Or the emergence of a new cybertech society that offers few opportunities for the children of today’s inner-city poor? Explanations that focus on the belief systems of criminals tend to be circular insofar as they claim that (1) individuals commit crime because they lack good values, and (2) we know they lack good values because they commit crime. By placing the locus of responsibility for crime at the individual level, these explanations minimize the importance of societal changes that alter the context within which individuals learn their values and select their behaviors. Social interactionist approaches argue that if it were not for the biased nature of the justice system, the poor would appear just as law-abiding as the affluent. They contend that “criminals” (i.e., those who commit street crimes and show up in official statistics) are disproportionately poor because (1) the justice system focuses on ­controlling poor communities, and (2) this practice increases the likelihood of future criminality by “labeling” residents of these areas, particularly young men, as “criminals” at an early age (Currie, 2013; Irwin & Austin, 1994; Matza, 1969). A typical example put forth is that the proportion of drug users among college students is no less than in poor communities, yet college students have a far lower risk of serving time as drug offenders than residents of poor communities because they are not the target of the “war on drugs,” which is really a war on poor people (Chambliss, 1995; Hari, 2015, as cited in Hartmann, 2014; Pawley, 2014; Provine, 2007). Even conservative magazines such as Forbes and libertarian 2016 presidential hopeful, Rand Paul, now admit that the drug war is a war on poor people of color (Kane, 2011; Paul, 2013). Although there is some merit to the argument that the class and racial composition of those caught in the justice system reflects discriminatory law and policing policies, this approach does not explain why the criminal justice system operates in this fashion. The labeling approach often leads to individualistic explanations that suggest these patterns reflect the discriminatory attitudes of the people working in justice ­system. This, however, is far too simplistic an approach. The laws and policies that instigated the war on drugs targeted poor people, and particularly poor young men of color, because the elite establishment recognized that they constituted what Spitzer (1975) termed “social dynamite” that needed to be controlled because the political–economic system had deprived them of genuinely equal opportunity and full access to the benefits of the society. It is not coincidence that the war on drugs and the imprisonment binge began exactly at the time when social movements by poor and black people had made significant headway in pressuring the society toward more social equality and economic fairness (Piven & Cloward, 1977; Wacquant, 2009). Justice system workers found themselves on the front lines of the drug war, carrying out orders issued by those many social classes above them. Thus, any explanation of class differences in who is targeted by the justice system must look beyond the individuals who work in that s­ ystem to those who are in charge of designing it and the laws it will enforce. Structural outcomes perspectives generally argue that poor communities will suffer from higher rates of criminal street crimes, as well as being victimized by business and corporate crimes, just as they suffer from disproportionate levels of other problems such as hypertension, alcoholism, and diabetes, not because of individual failings, but because of the physical and emotional pressures of poverty and inequality. This approach focuses on the structurally induced gap those in the poorer classes experience between their desires and the resources they have to fulfill them. This concept of



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structural strain, first formalized by Robert Merton (1938), contends that while desires for the “good things” in life cut across all social classes, those at the lower end of a system of unequal distribution have fewer resources to obtain them. Some individuals resolve this pressure by resorting to illegal means to fulfill their culturally learned desires (Agnew, 2001; Featherstone & Deflem, 2003; Merton, 1938; Messner & Rosenfeld, 2007). When it comes to non-utilitarian crimes such as interpersonal violence or drug use, structural outcome models shift their focus toward how the daily frustrations of living poor can increase tendencies toward aggression, or to ­self-medication with ­illegal drugs to ease the sadness and difficulties of daily life (Bernard, 1990). It should be noted that the broad majority of those subject to the pressures of ­poverty and inequality do not succumb to criminal outlets to achieve their desires or release their frustrations. What is important from a sociological perspective, however, is that the greater the pressures, the higher will be the proportion who will succumb to criminal outlets. The problem with most efforts to explain the link between social class and criminality is the tendency to focus on a single level of analysis. It is more useful, however, to think about the relationship between social class and crime as an interaction between different levels of social life. The broadest level is the organization of society according to the competitive market relations of capitalism. This leads to the division of society into social classes with differing levels of economic, social, and lifestyle resources, which has, in turn, important behavioral, political, and justice system consequences. At the behavioral level, resource-rich and resource-poor classes develop differing ways of life. Each group will utilize the resources available to them to resolve the problems or take advantage of the opportunities their social positions offer them. This includes differences in the ways some members of these groups will do harm and find pleasures. At the political level, however, resource-rich classes will be able to establish laws that define the harms and pleasures of resource-poor population as criminal, while leaving the harms and pleasures of their own groups largely beyond the scope of the criminal law. For instance, the legal system criminalizes poor citizens who “self-medicate” the sorrows of their lives with alcohol, marijuana, cocaine, crack, or methamphetamine. Meanwhile, middle- and upper-class citizens with access to health insurance, doctors, and drug prescriptions who consume daily quantities of Prozac, Zoloft, or some other antidepressant face little risk of criminalization for medicating their sorrows. Similarly, when the working poor spend a few dollars playing the “numbers,” the legal system defines their acts as criminal. Middle-class Americans who spend hundreds, thousands, or tens of thousands of dollars in casinos chasing illusive dreams of a “big win” will face no such stigma. Nor will the rich who gamble millions of dollars on speculative investments in the stock market or other financial instruments be targeted by the law. These distinctions, like so many others, are shaped by the ability of affluent classes to determine who is and who is not a criminal. The ability of elites to avoid criminalization generates a justice system focused on poorer populations. The face of crime comes to be that of poor people using crude means such as theft or force to obtain some desired good, or reacting in frustration or sadness to the difficulties of their lives through drug use or violence in their personal relationships. This creates a repetitive feedback loop whereby citizens come to believe that the street and vice crimes of the poor are the primary threat to social order, and so they support more repressive control of street crime. This leads to more poor people in jails and prisons, which leads to more fear of the poor, and more demands for control over their crimes, and so on.

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Social Class and Victimization While there is some debate about the relationship between social class and criminality, the linkage between social class and criminal victimization is clearer (Braithwaite, 1981). Since 1973, the Bureau of Justice Statistics has conducted the National Crime Victimization Survey (NCVS) that uses a representative sample of households nationwide to estimate the rate of victimization for street crimes each year. NCVS data indicate that, in general, the less well-off tend to bear a greater burden as victims of street crime. According to the National Crime Victimization Survey, between 2008 and 2012, the likelihood of being the victim of a nonfatal violent crime decreased as household income levels rose. People living in “poor” households, that is, households below the poverty threshold, were nearly twice as likely to be the victims of a nonfatal violent crime than people living in high-income households with incomes four times the ­poverty level (see Figure 9.6). The relationship between income level and victimization shows a similar overall declining pattern for property crime as incomes rise, but with slight counter-trends for the top and bottom categories. According to the NCVS, in 2010, the last year for which property crimes were reported by household incomes, for every 10 burglaries of homes with incomes over $75,000, there were 26 burglaries of poor homes with incomes less than $7,500 (see Figure 9.7). The distinction for theft was less, with 13 reported thefts among households with incomes below $7,500 for every 10 thefts reported by households with incomes between $50,000 and $75,000. While the popular image of street crime is often that of the poor preying on the rich, this perception is the product of multiple factors including highly racialized images of the poor, combined with the deep-seated American cultural belief that the poor are immoral, and therefore threats to “upstanding” (white) citizens. Criminality and danger have long been powerful stereotypes imposed on the “other” in U.S. society, that is, on those who are poor, non-white, and non-citizen. These images gain further strength from a fundamentally racist mass media system that in both news and

Victimizations per 1,000 persons

45 40 35 30 25 20 15 10 5 0 Poor

Low income

Mid income

High income

FIGURE 9.6  Nonfatal Violent Victimization by Income Category: 2008–2012. Note: Poor refers to households at 0–100% of the federal poverty level (FPL). Low income refers to households at 101–200% of the FPL. Mid income refers to households at 201–400% of the FPL. High income refers to households at 401% or higher than the FPL. Source: Bureau of Justice Statistics, National Crime Victimization Survey, 2008–2012.

Chapter 9  •  Social Class, Crime, and Justice    153

Victimizations per 1,000 households

140 120 100 80

Burglary

60

Theft

40 20

7. 5K

or l

es s 7. 5K –1 5K 15 K– 25 K 25 K– 35 K 35 K– 50 K 50 K– 75 K 75 K an d up

0

FIGURE 9.7  Burglary and Theft Victimization by Household Income: 2010. Source: Bureau of Justice Statistics, National Crime Victimization Survey, 2010.

entertainment portrays “others” far more often as sources of danger than it does the blond and blue-eyed stereotype of the trustworthy WASP. The reality of crime is that the poor, when they do commit crime, most often commit it against people like themselves for the simple reason that most people who break the law tend to do so within a relatively short distance of where they live. Thus, if the structural contradictions of poverty and inequality are more likely to result in individuals committing street crimes against persons and property, it means that the poor who live in those neighborhoods are also more likely to be the victims of street crimes.

Conclusion: Social Class and the Future of Justice The contemporary justice system and those who work in it face a dilemma. The United States does have high levels of street crime, particularly violent crime, in comparison with our European counterparts, and this crime is disproportionately concentrated in lower-income communities. Reducing the pain, the loss, the fear, and the sadness caused by these crimes is a worthy goal for anyone who undertakes a career in criminal justice. Some important underlying features of contemporary society, however, make it a goal with a dark side. It is not popular these days to talk about the “root causes of crime.” Not talking about them, however, does not make them go away, even if business and political leaders choose to act like little children who cover their eyes and say: “You can’t see me!” Whether or not we want to see it, our world is changing in ways that are increasing the production of both poor people and crimes against poor people by the wealthy. Rapid increases in hyper-technology and global competition mean that growing numbers of people are being closed off from work that pays a living wage, as discussed above. A depressingly familiar feature of many inner-city communities is a near total absence of decent jobs. Growing numbers of people are becoming part of a “surplus population” that is not needed by the work world. Equally disturbing is the fact that we have come to accept high levels of unemployment among inner-city youth as normal, just as we have come to accept homeless people as a regular feature of urban life. Yet, there was a time in living memory when neither of these things were commonplace, a time before well-paying, benefit-eligible jobs began to disappear, not just for blue-collar workers, but for a growing number of service and whitecollar workers as well.

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Homelessness and the Criminal Justice System: Repaving the Path Daniel Horn, MSW Coordinator, Administrative and Fiscal Operations, Title IV-E Child Welfare Training Project Homelessness is a complex social issue that both acts as a risk factor and can exacerbate a myriad of social and behavioral problems, namely, involvement in the criminal justice system. When an individual experiences homelessness, he or she is more likely to engage in activities that lead to arrest and incarceration. In fact, homelessness is such a strong predictor of arrest and incarceration that conservative estimates indicate a person is 7–10 times more likely to become incarcerated if they have experienced homelessness at any point of their life. Further, “more than half of homeless individuals report interacting with law enforcement within the past year, and 15% of inmates who are currently incarcerated report a lifetime history of homelessness compared to the national average of 5%” (Knopf-Amelung, 2013, p. 1). When looking at the types of crimes these individuals are arrested for, it becomes clear that they reflect the lived experience of homelessness. Loitering and trespassing, for example, are among the most common crimes committed by the homeless and happen when a person is attempting to escape weather conditions or the danger of sleeping on the streets. This and other similar survival strategies are continuously being criminalized around the nation. For example, a majority of cities in the State of Washington have criminalized sitting, standing, and sleeping in public places (for certain amounts of time). Also, they have criminalized storing personal property in public places, public urinations, and “aggressive panhandling” (Covert & Breiner, 2015). Nationally representative studies also demonstrate that some homeless individuals purposely commit petty crimes as a way to seek the shelter of a jail cell. In fact, it is estimated that nearly one-fifth of all homeless inmates intentionally became arrested as a way to find refuge (Ramesh, 2010). Individuals experiencing homelessness frequently face jail time for things like substance use or public intoxication, prostitution, and disorderly conduct—often a result of untreated mental health issues. When released from incarceration, homeless individuals face seemingly insurmountable obstacles as a result of their homelessness. It is well understood that social and community support is an integral component of successful prisoner re-entry. Support comes in many forms including positive social networks, community employers who are willing to hire former inmates, and government assistance programs that provide for basic housing needs. The dual stigmatization of homelessness and incarcerations creates a challenge related to securing employment after release. Employers are understandably hesitant

to hire former inmates who lack stable housing. Further, the types of establishments that hire homeless ex-inmates often pay very little, have strict rules regarding behaviors, and require intensive supervision—all conditions that prove challenging to those struggling to find housing. Similarly, government assistance programs often discriminate against former inmates. While public housing assistance does not inherently exclude those who have criminal records, most programs grant authority to landlords to refuse housing to any tenant whose behavior “may be expected to have a detrimental effect on other tenants or on the project’s environment” (HUD, 2016). This means, if the landlord of a public housing development decides an individual released from prison could pose a threat, that individual can be legally denied housing, despite having received a voucher. Regardless, some individuals are provided with housing. However, with this opportunity comes other unique challenges. Stipulations of probation often include not interacting with other known criminals, as being within close proximity to criminal activity can be detrimental to re-entry. Most assistance programs, however, place tenants in low-income areas with dense populations and increased crime rates. Simply being in one’s home, therefore, can be a risk factor for violation of probation and recidivism. Imagine someone who has been homeless for the past two years. They are contacted by a housing outreach worker and, within a few weeks, are placed in their very own unfurnished government-subsidized apartment. They go from living on the streets and in the woods to a densely populated and rent-controlled complex. This densely populated area brings with it drug dealers, criminals, and overpopulated apartments with individuals coming in and out, nightly. This, formerly homeless individual, now is facing new challenges that they would have been able to avoid when not committed to staying in a single place (their new apartment). The individual is making a major transition in lifestyle, at this time. They have to establish new behaviors and meet new expectations not necessary when homeless. The exposure to the criminal activities the person is now surrounded by could negatively influence the individual to participate in those activities. Recidivism and homelessness have a strong positive correlation. The system does have programs in place that can equip homeless individuals with an opportunity for successful re-entry. However, these approaches are only effective when coordinated with multiple other sources of support, including employment assistance, access to mental health and substance abuse counseling, and food subsidies. With a focus on rehabilitation and support, as opposed to punishment,

Chapter 9  •  Social Class, Crime, and Justice    155



the correlation between recidivism and homelessness can be successfully disrupted. References Covert, B., & Breiner, A. (2015, May 11). Arresting homeless people for being homeless is unbelievably wasteful. Retrieved from http://thinkprogress.org/economy/ 2015/05/11/3657404/washington-homeless-criminalizaton/. HUD’s Public Housing Program. (2016). Retrieved from http:// portal.hud.gov/hudportal/HUD?src=/topics/rental_­ assistance/phprog.

Knopf-Amelung, S. (November 2013). Incarceration & homelessness: A revolving door of risk. In Focus: A Quarterly Research Review of the National HCH Council, 2(2). Nashville, TN: National Health Care for the Homeless Council. Available at www.nhchc.org. Ramesh, R. (2010, December 22). A fifth of all homeless people have committed a crime to get off the streets. Retrieved from http://www.theguardian.com/society/2010/dec/23/­ homeless-committing-crimes-for-shelter (accessed April 14, 2016).

As William Wilson (1996) detailed in When Work Disappears, when young p­ eople do not see adults working and being rewarded for legitimate work, the proportion who will be tempted to pursue illegitimate routes to income or to compensate for their lack of hope by pursuing the street comforts of alcohol, drugs, casual sex, and gang membership will increase. This search for alternative (and often criminalized) means to material goods and social satisfaction is intensified in the contemporary world where the ability to purchase lifestyle commodities has become a key element in the construction of personal identity (see Ewen, 1988; Fiske, 1996; Unger, 1990). What was true about the declining options for economically and personally rewarding work at the end of the twentieth century has become even more true in the early decades of the twenty-first as the U.S. and global economic systems have reorganized themselves in the ­aftermath of the Great Recession to produce more products with fewer workers through the utilization of digital technology (Brynjolfsson & McAfee, 2011; Ford, 2015; Rifkin, 1995). Economic indicators point to a continued growth in the surplus population— what some people call the “underclass,” as well as increased efforts by the justice system to control this underclass (Carlson & Michalowski, 1997; Michalowski & Carlson, 1999; Sassen, 2014; Wacquant, 2009). Historically, the United States has responded to the problem of controlling surplus populations with one of two ­strategies—criminal ­justice in the form of police and prisons, and social welfare in the form of jobs programs and cash or in-kind public assistance (Piven & Cloward, 1977). The current political climate favors a strategy based largely on using the criminal justice system, particularly prisons, to deal with the problems posed by a growing surplus population. By deviantizing and criminalizing large numbers of youth from low-income (and typically racial minority) communities, often for relatively minor offenses, the justice system ensures a growing number of poor offenders, just as the poverty of their neighborhoods ensures a growing number of poor victims. High levels of penalization also have the troubling consequence of providing an attractive profit stream for what has come to be known as the prison–industrial complex. From the perspective of the investor class, the more poor, young black and brown people we can lock up in prison for long sentences, the greater the profits that can be earned by investing in the private prison industry (Drucker, 2013; Herivel & Wright, 2003; Sudbury, 2004). All of this poses several dilemmas for justice system workers. The first dilemma is whether working in the justice system is an honorable career devoted to protecting people from the ravages of crime, or one devoted to keeping the lid on the consequences of social class inequality so that the better-off can enjoy their larger shares of the pie in relative peace and with the confidence that they are not part of the problem. Of course, things are never that simple or clear cut. Street crimes occur. They harm people physically and emotionally. They disrupt community life in a multitude of

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ways. In a society whose social structure produces high rates of crime, someone must help its victims. Every crime prevented, every victim helped, every offender rehabilitated, every addict detoxed is another human being whose suffering has been lessened. At the same time, it is critical, if we want to really address the crime problem, that both citizens and those who work in the justice system are not blinded by the goodness of these acts into thinking that they represent a solution to, or even major gains against, the real problems of social injustice and social inequality that increase crime among all social classes. The justice system helps many people, but it alone cannot produce justice in the society. Real justice is social justice. A large criminal justice system cannot compensate for a lack of social justice. This brings us to the second dilemma facing justice system workers and others today. Should we continue to support “get tough” policies that will certainly create more jobs for justice system workers, but do so at the expense of real justice? Or should we dedicate ourselves to creating a more just society, one that can live with a smaller justice system because it is less divided by class inequalities? We can continue to treat low-income neighborhoods of color in our society as battle zones. This will certainly keep justice system employment high, and will help ensure you have a job when you graduate with a degree in criminal justice. However, if we are truly dedicated to reducing the human tragedy of crime, we need to cease the violent rhetoric of our various “wars” against crime, and begin to look for ways of reducing social inequality and creating genuine opportunities for dignified, materially adequate, and socially accepted lives for all. One of the first and most important steps must be transforming how we think about crime by recognizing that the greatest threats we face do not come from the relatively limited range of crimes that can be committed by the least well-off, but from the crimes and harms committed by those whose hands are on the levers of economic and political control. Until we recognize that the harms of the powerful are far more threatening, and in greater need of control than the harms of the poor to which contemporary justice systems give their greatest attention, we can make little progress toward achieving true justice. In the final analysis, if we want social peace, we must work for social justice. The alternative is to wage a perpetually failing war against crime, drugs, and poor people of color, while we all continue to suffer from the crimes and harms caused by a small group of wealthy and powerful decision makers, the ones that Occupy Wall Street correctly names as the 1%. On the other hand, working toward a society characterized by greater equality in the distribution of resources, and a justice system that addresses social harms, regardless of who is responsible for them, offers the best hope for a safer and more humane world.

Questions for Review 1. What is social class, and how does it both reflect and shape social organization in capitalist societies? 2. Why is the United States divided into social classes? 3. How do social class characteristics intersect with other elements of identity such as gender and race? 4. What is the difference between wealth and income? 5. In what ways has the allocation of wealth and income in the United States changed between 1970 and the present? 6. Considering your own background, how would you characterize your location in the social class hierarchy

of the United States? How would you consider your location in the social class hierarchy of the world? 7. How does social class difference in the United States influence which social harms will be criminalized and which will not? 8. How does the decision to criminalize some harms more than others shape the social class composition of those arrested and imprisoned in the United States?



Chapter 9  •  Social Class, Crime, and Justice    157

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Whiteness and the Construction of Crime Rebecca Maniglia

Chapter Objectives • Summarize the history of the term “whiteness” in American society and describe its relationship with access to power. • Discuss the impact of race on criminal justice processing at each stage of the criminal justice system (i.e., arrest, prosecution, and sentencing). • Analyze the impact of one’s race on one’s experience as an offender in the criminal justice system. • Describe the statistical inequities related to race/ethnicity that exist within criminal justice in the United States. As long as race is something applied only to non-white peoples, as long as white people are not racially seen and named, they/we function as a human norm. Other people are raced, we are just people. . . The point of seeing the racing of whites is to dislodge them/us from the position of power, with all the inequities, oppression, privileges and sufferings in its train, dislodging them/us by undercutting the authority with which they/we speak and act in and on the world. (Dyer, 1997, pp. 1–2)

In August 2014, a white police officer, Darren Wilson, shot and killed an unarmed AfricanAmerican man, Michael Brown, in Ferguson, Missouri (Halpern, 2015). This event, and the eventual decision by the grand jury not to indict Wilson, sparked days of violent and nonviolent protests and eventually spawned a movement called Black Lives Matter to confront racism in policing in the United States. Throughout the media coverage of the Ferguson shooting and the many police-involved shootings that have followed, as discussed further in Chapter 12, race has been a key factor in the description of the shootings and in the conversations about their merit. The suspects are almost always identified as men or women of color, and the officers are often identified as white. In fact, even the Black Lives Matter social movement has come under fire for asserting the value of the lives of one racial group, spawning the Blue Lives Matter movement in support of police and All Lives Matter movements defying race as a meaningful descriptive category. The result has been a re-assertion of race into the public conversation in a way that has not happened since the Civil Rights Movement of the 1960s. The impact of skin color on one’s lived experience has become, once again, a defining issue for American politics and social interaction. However, as seen with other historical examples of discussions of race, those who have non-white skin seem to be the only ones with “race.” Other chapters throughout this text will discuss how nonwhite people, or people of color, experience the justice system. So, we must ask, what does being “white” mean in this national dialogue or in relation to the criminal justice discipline generally? 161

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The term “white” is often missing from discussions of criminal justice policy and practice. This is not, of course, because white people are not involved in crime as offenders, victims, or criminal justice practitioners. In fact, whites are the largest racial population in the United States, commit the majority of crimes, and are, by far, the largest population of justice practitioners. Race, of course, is not just an issue for criminal justice. The recent racial context of police shootings and the protests that have resulted from them have simply brought race once again to forefront of the American conversation about identity. Race is being discussed and pondered as a, or perhaps the, determining factor of people’s lived experiences in the United States. Yet, as pointed out earlier in Chapter 2, race is simply a social construction—a created, socially agreed-upon descriptive category. Race exists primarily as a set of general characteristics (e.g., hair texture, skin color) to which society has attributed meaning and value. For whites, as the majority population in the United States, the positive meaning given to their skin color has resulted in many social benefits and an increased access to power. This is what is commonly known as white privilege. One of the key ways that white privilege manifests itself is that being white has become the normative experience with all other experiences of race becoming the “other” or the non-normative experience. Whiteness in the United States then has become the unspoken default position in racial discussions. In essence, white people are thought to have no race. If an individual is not identified, such as in a news report, by a specific racial category, then the apparent meaning is that he or she is white. Anyone who is considered non-white must then be identified racially. Not having to self-define or understand what being white means to a person’s daily experience is the first element of white privilege. The effects of white privilege have far-reaching consequences, much farther than the criminal justice system. The impact of white privilege, in reality, affects almost every structural and institutional aspect of American society. The problem with this state of affairs in racial politics is that it supports an underlying assumption that being white is somehow not being raced or that being white is to live a race-free existence except when one is interacting with those of other races. Those identified as white then define the nature of, and influence of, race in the United States. They not only avoid thinking about themselves as being or having a race or being affected by racial issues, but also, through their hold on the country’s power structures, tell the “other” (or those who are considered non-white) what their experience of race is about. Much like Gramsci’s concept hegemony, in this case the dominant classes are able to present their definition of reality, their view of the world, in a way that it has become “common sense”— those who present a different view or embody something “different” are therefore marginalized (Gramsci, 1971). The result is that when people of color1 raise racial issues, both within criminal justice and outside of it, white privilege allows whites to pass judgment on the legitimacy of these experiences and often to control the public policy response. Using whiteness as the normative experience is especially problematic in criminal and juvenile justice. As will be discussed below, criminal justice is a system in which whites are the majority in every position of power. There are more whites in law enforcement, behind the judicial bench, working as prosecutors and defense attorneys, and serving as correctional officers than any other racial group. This is true in a criminal justice system where people of color are overrepresented at every stage of processing and where there is research to demonstrate racial bias throughout the system from the point of arrest to the sentencing of offenders (Abrams, Bertrand, & Mullainathan, 2012). This chapter will explore the implications of this racial reality for whites and 1

It is important to note here that scholars and activists alike have discussed the complicated terminology when referring to people of color. As has been discussed, and as will be discussed throughout this book, whiteness has been normalized throughout the United States; thus, any designation of people who are not white further normalizes whiteness. Describing “people of color” furthers the notion that whites have no color, and describing people as “non-white” further normalizes whiteness. There is no one “right” way and any way of referring to racial categories carries historical and institutional significance.

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non-whites in criminal justice and what it means for those preparing for careers in this field. However, it is important to begin the discussion with an understanding of the meanings and sources of whiteness.

Origins: History of Whiteness In his new and controversial book, Between the World and Me, Ta-Nehisi Coates (2015) speaks frequently of the people “who believe they are white” (p. 7). His point is that race (i.e., skin color, physical features) as a defining factor in American society with “whites” as the benefactors is a relatively new and contrived idea. He writes Difference in hue and hair is old. But the belief in the preeminence of hue and hair, the notion that these factors can correctly organize a society and that they signify deeper attributes, which are indelible—this is the new idea at the heart of these new people who have been brought up hopefully, tragically, deceitfully, to believe that they are white. These new people are, like us [African Americans], a modern invention. But unlike us, their new name has no real meaning divorced from the machinery of criminal power. The new people were something else before they were white—Catholic, Corsican, Welsh, Mennonite, Jewish. . . . (2015, p. 7)

Coates (2015) is referring to the history of race in the United States. In modern society, individuals with light skin, often from European descent, will identify themselves racially as white, even though this idea of whiteness has developed over time. Some would argue that this socially constructed view of race is really an invention designed to control who can have the power to shape American society. As we have seen thus far in this text, and as will further be discussed, race in the United States is ever changing. Whiteness as a racial category has only existed since the seventeenth century. Before this, skin color was only referenced descriptively and not assumed to have deeper or inherent meaning (Battalora, 2013). Other categories such as religion or ethnic background were much more salient than skin color as an organizing factor in society. The transition to understanding skin color, and thus whiteness, as having meaning can be traced partially to the early colonies, specifically to the Nathaniel Bacon rebellion, which led to specific laws defining skin color as a precondition for political and legal power (Takaki, 1993). In 1676, Nathaniel Bacon led what began as a rebellion against Native Americans near the colony of Virginia. As Takaki (1993) highlights, the rebellion was staffed by poor British laborers and poor laborers of African descent, who would eventually turn against the landowning British elite in the colony and bring the rebellion home, burning much of the town of Jamestown and chasing the governor out of power. The rebellion represents the first time in the colonies that the lower classes had risen against the powerful elite. This class-based, mixed race rebellion, although the participants probably did not think of themselves in these terms, demonstrated the power of this collaboration against an elite, upper class that was primarily white. In response, the years following the rebellion brought new colonial laws that would legally codify race, establishing a color line in the new colony and beyond, and dividing poor European laborers (white) from poor laborers of African (black) descent (Takaki, 1993). Race in the United States was born. Eventually, these early American laws expanded to define basic privileges of movement and freedom and economic self-determination and created a new legal separation of powers between all those of European and those of African descent. For example, those of African descent would be unable to testify against whites, to legally carry any weapon, to congregate freely, or to cause injury to a white person. These evolving laws thus defined criminal activity in a way that racialized it for the first time. It controlled the movement and rights of free people of African descent in the colonies as well as those individuals of African descent who were enslaved making the legal

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distinction clearly racial and not economic (Battalora, 2013). Thus, being white, for the first time, carried with it specific and enabling societal privilege, and the absence of whiteness was used as a marker for criminalizing behavior and depriving legal rights and privileges. This is the precursor to the modern idea of white privilege. While the origins of “whiteness” as a term of meaning can be found in colonial law, the notion of who counts as white continued to evolve throughout the coming history of the United States. The earliest category of “white” contained individuals very different from one another in other ways (i.e., class, power in society), and whiteness eventually would exclude additional groups of people, especially new immigrants who looked white, but were excluded by another characteristic such as religion (Battalora, 2013) in order to maintain the power status quo. Thus, whiteness was a contested term from the beginning and one entirely socially constructed to control who had access to power and societal privilege. The first laws of naturalization in the United States bestowed citizenship only on “whites.” This was true until the 1940s when Germany established citizenship based on the Aryan ideal of race, and the United States and Germany became the only countries in the world to use a race-based (color-based) system of naturalization. These laws had consequences for groups of new immigrants coming in waves to the United States from Europe, but not from Britain. For example, Irish Catholic immigrants coming to the United States in the early to mid-1800s who looked white were denied citizenship based on their ethnic heritage. At the time, the political and economic upheaval in Ireland was pushing immigrants into the new frontier of America; the economic conditions in the United States led Irish Catholic immigrants to understand themselves as outside the American Dream. Often referred to as “white negroes,” these Irish immigrants came to see the value of solidarity with slaves of African descent, as their positioning in society was similar. This had the potential for once again creating a mixed race empowerment based on class, as in Bacon’s Rebellion. This relationship was short-lived. With encouragement from the ruling class, Irish Catholics separated themselves from those of African descent in order to acquire full citizenship. At the expense of those of African descent, Irish Catholics moved to support slavery as an American institution. Race lines were drawn once again with skin color as the defining characteristic, and the Irish became full citizens. As citizenship was a privilege allowed only to whites, the Irish therefore became, for political and economic purposes, “white” (Ignatiev, 1996). This kind of racial assimilation can be seen in later years in other communities of immigrants such as Italians and Jews in the United States, both of whom are originally designated by ethnicity or religion but who eventually become “white” in racialized America. Thus, whiteness, historically, should be understood as a fluid idea that has less to do with biological identity than it does with racial, legal, and societal privileges.

White Privilege: Facing Facts Chapter 3 discussed the important concept of privilege within the criminal justice system. As discussed, privilege comes into play in a variety of ways as people navigate the justice system. Privilege, or the unearned advantages or disadvantages individuals acquire due to socially constructed categories of difference, comes in many forms. For this chapter, racial privilege will be discussed in order to highlight the inherent advantages in being white in the U.S. criminal justice system. Whiteness, or being legally and socially classified as white in the United States, produces privilege despite the fact that whiteness as a concept is entirely socially constructed and changes over time. As mentioned earlier, to be white in the United States is to have one’s racial experience be considered the normative experience, to often have access to positions of power in various economic and political systems, and to be able

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Excerpt from White Like Me: Reflections on Race from a Privileged Son, by Tim Wise, pp. xiii–xiv Whiteness is more about how you’re likely to be viewed and treated in a white supremacist society than it is about what you are, in any meaningful sense. This is why even some very light-skinned folks of color have been able to access white privilege over the years by passing as white or being misperceived as white. Whiteness is. . . a social construct. This is a book about that construct and how it plays out in the larger culture. . . As for the concept of privilege, here too, clarification is in order. I am not claiming, nor do I believe, that all whites are wealthy and powerful. We live not only in a racialized society, but also in a class system, a patriarchal system, and one of straight supremacy, able-bodied supremacy, and Christian hegemony. These other forms of privilege, and the oppression experienced by those who can’t access them, mediate but never fully eradicate something like white privilege. So I realize that wealthy whites are more powerful than poor ones, white men more powerful than white women, able-bodied whites more powerful than those with disabilities, and straight and cisgendered white (the latter being a term for those who are not transgendered) more powerful than gay, lesbian, bisexual, or transgendered whites. But despite the fact that white privilege plays out differently for different people, depending on these other identities, the fact remains that whiteness matters and carries great advantage. So, for example, although whites are often poor, their poverty does not alter the fact that relative

to poor and working-class persons of color, they typically have a leg up. In fact, studies suggest that working-class whites are typically better off in terms of assets and net worth than even middle-class blacks with far higher incomes, due to past familial advantages. No one privilege system trumps all others every time, but no matter the ways in which individual whites may face obstacles on the basis of non-racial factors, our race continues to elevate us over similarly situated persons of color. The notion of privilege is a relative concept as well as an absolute one, a point that is often misunderstood. This is why I can refer to myself as a “privileged son,” despite coming from a dysfunctional family that was not even close to wealthy. Relative to persons of color, whites receive certain head starts and advantages, none of which are canceled out because of factors like class, gender, or sexual orientation. Likewise, heterosexuals receive privileges relative to LGBT folks, none of which are canceled out by the poverty that many straight people experience. So too, rich folks have certain privileges on the basis of wealth, none of which vanish like mist just because some of those wealthy persons are disabled. While few of us are located only in privileged groups, and even fewer are located only in marginalized or oppressed groups—we are all occasionally privileged and occasionally targets— the fact remains that our status as occasional targets does not relieve the obligation to address the ways in which we receive unjust advantages at the expense of others.

to pass judgment on the legitimacy of the racial experiences of non-whites. As James Baldwin claimed, being white means never having to think about it. Yet, for Americans who consider themselves “white” largely based on the color of their skin, this sense of white privilege often remains invisible or at least unspoken in their daily lives. Or, what Tim Wise describes as the “virtual invisibility that whiteness affords those of us who have it is like psychological money in the bank, the proceeds of which we cash in every day while others are in a state of perpetual overdraft” (2012, p. 134). When white privilege is made visible, sometimes individuals hesitate to acknowledge it as real. For a white man or woman to recognize white privilege sometimes feels as if it is the dismissal of hard work or individual ability, calling into question the legitimacy of individual accomplishments. Yet, factually it is true that those with other racial or ethnic identities often do not possess the same economic, educational, or professional opportunities as those who are considered white. While some of this can be traced back to the racial history of discrimination in the United States, its ongoing presence seems to indicate the existence of a contemporary set of privileges associated with racial identity. Consider, for instance, economic realities based on race: Even before the present economic meltdown. . .white families possessed about 12 times the net worth of the typical Black family and eight times that of the typical Latino family. . .now, in the wake of the collapsed economy, the median net worth among white families is 20 times that of black families and 18 times greater than that of Latino families—a difference of over $100,000 between the typical white family and the typical family of color. (Wise, 2012, pp. 26–27)

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Generally, the poverty rate for whites in the United States is about 9%, while it approaches 25% for African Americans and Latinos (Sentencing Project, 2013). This economic reality is just one piece of what it means to live a raced experience in the United States; the role of race in economic opportunity must be acknowledged in order to understand the implications of white privilege. While the contributing factors to poverty levels in communities of color are complicated, issues such as racial discrimination, years of segregated housing based on race, and the availability of legal economic opportunities for people of color all play a role in creating an unlevel playing field. Recognition of this raced history and its ongoing effects, both in criminal justice and in society at large, is the first step in accepting the reality of white privilege. Racial privilege is often difficult for whites to accept because it feels akin to denying their individuality. It feels as if success is somehow being bestowed on them from external sources based on the color of their skin, a factor they cannot control. It elicits feelings of guilt or denial (especially for whites who come from lower socioeconomic classes and do not experience power or wealth). In discussions of racial privilege, whites will often assert they are not racist and never participated in the history of racial oppression in the United States (i.e., I did not own slaves; I’m not racist); therefore, they reject being blamed for racial politics just because of the color of their skin. This is, in fact, a true statement in many ways. However, part of accepting racial identity as white is to recognize that racial privilege is not about individuals but about racial politics. In other words, “race privilege is more about white people than it is about white people” (Johnson, 2005, p. 115). For whites to effectively and honestly participate in the American dialogue about race as a defining political and social power structure, they must first accept white racial privilege as a fact based on one’s externally defined position in the racial hierarchy. Thus, racial privilege, and more specifically in this case, white privilege, has more to do with being privileged rather than necessarily feeling privileged. Because whiteness is so normalized in the United States and because whiteness is valued in society, people with white skin (or light skin) tend to reap unearned advantage whether they can acknowledge it or not (Johnson, 2012). This does not discount individual effort, does not assume one’s racial viewpoints, or does not dismiss discrimination based on other salient issues such as class or gender or sexual identity, but it does play a role in defining the American experience for those considered white. And in a system where race is salient, such as criminal justice, to accept and interact with the consequences of white privilege is necessary.

Whiteness and Offending The criminal justice system has a particular racial context that cannot be ignored or dismissed. As discussed above, the criminal justice system is largely white. This means that victims, offenders, and above all professionals are more likely to be white than any other racial group. However, African Americans, Native Americans, and Latinos, those with black or brown skin, are overrepresented at every stage of the system. This means that the number of men and women of color arrested, prosecuted, and sentenced in the U.S. criminal justice system is disproportionate to their population in the country generally. This is despite the fact that white people are the largest population of all criminal offenders in reflection of their overall population numbers. Examples of this disparity can be seen throughout the justice system. As will be discussed in later chapters of this book, black or brown men are overrepresented, for example, in police statistics concerning stop-and-frisk practices and communities of color are policed at higher rates (Sentencing Project, 2013). Another example is the U.S. Department of Justice’s investigation into policing in Ferguson, Missouri, the site of the police shooting mentioned in the introduction of this chapter, which found that the Ferguson Police Department engaged “in a pattern of unconstitutional stops and



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arrests,” “in a pattern of First Amendment rights violations,” and “in a pattern of excessive force in violation of the Fourth Amendment,” all of which, combined with similar discrimination in the municipal courts, created justice system “practices that disproportionately harm Ferguson African-American residents and which are driven in part by racial bias” (Department of Justice, 2015). It is important to note here that the Ferguson Police Department is largely composed of white individuals. These kinds of racially motivated practices have been found by the Department of Justice to be present in other cities, such as Cleveland and Baltimore, and constitute a pattern of practice that must be confronted in order to understand the significance of race in the criminal justice in America. This means that what it means to be white is largely defined by what it means NOT to be white in the criminal justice system. It is useful to examine the facts concerning the rates of white offending to begin to understand how whites interact with crime and justice and how white privilege allows the rates of white crime to go unnoticed or unmentioned from the public discussion of crime and justice. When considering the picture of white offending in the United States, it is interesting to remember that even given minority overrepresentation, whites make up the majority population in every offense category for both adult and juvenile crimes and for crimes committed by both women and men. This is not surprising given that whites are the majority population in the country. According to the 2013 U.S. Census Bureau, whites represent 77.7% of the total population of the United States, whereas African Americans are only 13.2%, Latinos are 17.1%, and Native Americans are 2%. If one were to enter a courtroom, jail, or prison, one is most likely to see a large number of white offenders; yet it is often men of color that come to mind when issues of crime or justice are discussed. The fact that the offending rate of white Americans is proportional to their overall population, while African-American and Latino or Native American offenders are disproportionately represented, might explain why white offenders are often not the focus on debates about criminal justice and race. Much of this can be understood based on the fact that the socially constructed meanings of offenders often intersect with stereotypes and images of certain races as violent and/or dangerous. This becomes the focal point rather than the large number of white offenders. This is appropriate in some ways, but it is worth remembering that white offenders, even while privileged by their race, are still negatively affected by criminal justice policies such as mandatory minimum sentencing, the war on drugs, and mass incarceration. Further, it should be noted that the majority of all offenders are also members of lower socioeconomic classes and face the constraints on privilege that class creates. With this context for the role of race and racial privilege in mind, it is important to examine actual statistics on offending patterns by race. When looking at offense data, however, it is important to note that the official data found in FBI Uniform Crime Reports (UCR) do not include Latinos in their racial breakdowns of offenses because being Latino is considered an ethnic category (based on country of origin) as opposed to a racial category. Therefore, it is only possible to compare offenders in other racial/ ethnic categories. Given this limitation in the data, in 2012, white offenders represented 69.3% of all arrests in the United States, African Americans represented 28.1% of all arrests, and Native Americans represented 1.4%. When examining the racial/ ethnic background of individuals arrested for specific offenses, the racial profile becomes only slightly more complex. For instance, whites represented 48.2% of arrests for murder and non-negligent manslaughter with African American representing 49.4% and Native Americans representing 1.2%. African Americans also represented the majority of arrests (54.9%) for robbery, the only crime for which this is true, and whites represent almost all (43.4%) of the remaining robbery arrests. For all other offenses, except gambling, whites represent more than 50% of arrests, going as high as 65% of rape arrests, 67% of burglary arrests, and 73.6% of arson arrests. In fact, in 2012,

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whites represented 58.7% of all arrests for violent crimes and 68% of arrests for property crimes. They also represented 67% of all arrests for drug violations, 84.6% of driving under the influence (DUI) arrests, and 58.2% of arrests for weapons violations (UCR, 2012). While UCR data are not racially comprehensive, it does clearly indicate that whites are arrested for the majority of crimes in the United States. As explained earlier, this pattern in offending is critical to understand. First, it raises the question why, since whites actually are the majority of offenders in the United States, is the perception that crime is associated with people of color so pervasive? Second, despite the majority of offenders being white, the related arrest rates for people of color show a clear pattern of minority overrepresentation when offending rates are compared to population rates. Those interested in criminal justice must ask why this is and begin to confront the answers, many of which are addressed in other chapters in this text. Beyond offending, race plays a significant role in sentencing and criminal justice processing. In 2013, there were approximately 4,751,500 individuals under the jurisdiction of community corrections, specifically on probation or parole, in the United States. Of the adults sentenced to probation in 2013, whites represented 54% of this total population, while African Americans represented 35% and Latinos represented 14%. This racial/ethnic breakdown is similar for those on parole. Whites represented 43% of parolees in 2013, while African Americans were 38% and Latinos were 17% (Herberman & Bonczar, 2015). This seems to indicate that when whites commit crimes they are sentenced to probation and parole at rates that are proportional to their rates of offending; whites remain the majority in these justice system settings. The racial profile of offenders held in correctional facilities in the United States presents a more complicated picture. The United States had approximately 744,600 individuals being held in jails at midyear 2014, the majority of whom were awaiting trial. Of this population, white inmates represented 47%, while African-American inmates made up 35%, Latino inmates made up an additional 15%, and Native American inmates constituted 1.4% (Minton & Zeng, 2015). This racial breakdown is similar in prisons at both the state and federal levels. In 2013, there were 1,574,700 individuals housed in federal and state prisons in the United States. African Americans represented the largest racial population in federal and state prisons, making up 37% of all inmates. Whites constituted approximately 32% of inmates and Latinos represented 22%. White females made up the majority of the female inmate population, with 49% of all female inmates being white and 22% being African American. Despite the high numbers, however, African-American females are overrepresented in the system as the incarceration rate for African-American women is 113 per 100,000 and the rate for white women is 51 per 1,000,000 (Carson, 2014). These statistics demonstrate what has come to be well documented: whites represent the largest racial group of offenders and in some areas of the system the largest population under criminal justice jurisdiction. Yet, when it comes to incarceration, particularly in prison, African Americans represent the largest population being held. Whites represent the largest proportion of offenders for almost every crime, yet they are not the largest population in prison. This speaks to one way white privilege works as an advantage in the criminal justice system. The numbers seem to portray a system where whites can offend at the highest rates and be less likely to receive the harshest punishments.

Whiteness and Victimization While white offenders are the majority of those in the criminal justice system in almost every crime category, victimization varies by race in ways that reflect the experience of white privilege. For most crimes, whites are less at risk of victimization than people of color making whiteness protective in some ways. Consider, for instance,



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violent victimization. Generally, whites experience less violent victimization than other racial or ethnic minorities, despite their large population. They are also less likely to be the victims of other crimes. This may have to do with the intersection of race and circumstance. For instance, most crime happens in urban jurisdictions where the population comprises more people of color than in more rural jurisdictions, especially given the history of racially segregated housing in these locations (National Center for Victims of Crime, 2013). Similarly, there are critical intersections of race and other salient issues such as gender, which determine victimization rates. For instance, white women and men are less likely than other racial/ethnic minorities to be the victims of sexual assault (National Center for Victims of Crime, 2015). So when looking at victimization data, being white is often a benefit in purely racial terms, but a complete picture of victimization risk requires an understanding about the intersections of race and multiple intersecting and overlapping categories of difference. While an intersectional analysis of victimization is important, examining victimization data in racial terms is still beneficial in understanding the impact of white privilege. As stated before, whites are generally less at risk for being crime victims. In 2013, approximately 1.9 million whites were the victim of one or more violent crimes compared to 430,380 African Americans and 540,130 Latinos. To understand these numbers, like offending numbers, they must be placed within the context of the racial make-up of the population generally. Whites are the majority racial population in the United States; therefore, it makes sense that there would be more white victims. When placing victimization rates for people of color in the context of their percentage of the population, African Americans and Latinos had a higher prevalence rate of violence (which refers to the number of violent incidents per victim) than whites (Truman & Langston, 2014), and the highest rates of violent victimization proportionate to their total population are experienced by Native Americans or Alaskan Natives. In 2013, the rate of violent victimization (murder, sexual assault, rape, robbery, aggravated assault, and simply assault) for whites was 22.2 per 1,000, which was lower than the rate for African Americans (25.1 per 1,000) or Latinos (24.8 per 1,000) and Native Americans/ Alaskan Natives (56.3 per 1,000). This means that while there are a large number of white victims, whites generally are less likely to be the victims of violent crime than other ethnic or racial minorities (Truman & Langston, 2014). Being white makes you less likely to be the victim of a violent crime, which is an additional benefit of white privilege. In examining violent crime victimization and race, the interplay between the race of the victim and the race of the offender is also an important consideration. In the United States, most crime occurs within racial groups. For instance, in 2012, 83% of the homicides committed by white offenders were against a white victim. Likewise, 94% of the homicides committed by African Americans were against an AfricanAmerican victim (National Center for Victims of Crime, 2015). Thus, when someone is killed by another individual, this crime is most likely to be inter-race. This is especially interesting given the reality that media, both television dramas and news coverage, often leave the white public with the idea that they are somehow at risk of being murdered or hurt by an offender who is a person of color, especially an African American. When examining the intersection of race and gender, white women do have slightly higher rates of sexual victimization, including rape, than some women of color. While Native American women are most at risk for sexual assault during their lifetime (55% will experience victimization), approximately 46.9% of white women will be sexually victimized in their lifetime. This is compared to 38.2% of AfricanAmerican women and 35.6% of Latino women. For men, whites are less likely to be the victims of sexual victimization in their lifetime. In 2012, 22.2% of white men reported being the victim of sexual assault at some time in their lifetime while 26.6%

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of Latino men, 24.4% of African-American men, and 24.5% of Native American men reported being sexually victimized during their lifetime (National Center for Victims of Crime, 2015). Whites are also far less likely to be the victims of forced labor or adult human sex trafficking. Where the race of the victim was known, only 26% of sex trafficking victims were white compared to 40% who were African American and 50% who were Latino. White victims of forced labor are even more rare with whites accounting for only 1.6% of victims of forced labor and Latinos accounting for 55.7% and African Americans for 9.8% (National Center for Victims of Crime, 2015). Thus, being white here again places one less at risk for being a crime victim. The role of white privilege in victimization extends beyond just the statistical likelihood that an individual will be the victim of a crime. Race also impacts the manner in which victims are responded to by law enforcement or in court proceedings. The stories of white victims are often taken more seriously on their face with less time spent judging the actions of the victim that may have impacted why they were victimized. Similarly, victims of color often perceive or experience the dismissal or minimizing of their victimization by law enforcement or other system professionals and are often forced to account for whether their own behavior contributed to the victimization (see Chapter 8).

Whiteness and System Professionals Given what has been established thus far—that whites represent the largest group of offenders for almost all crimes and are often the least likely to be the victims of crime—examining whiteness in the context of criminal justice practitioners becomes critical. While statistical data on the race of practitioners are often difficult to find, generally it is true that whites are the majority of practitioners at every stage of the system (Walker, Spohn, & DeLone, 2011). This is related to an extensive history of racial profiling in hiring practices and discrimination. Because of this, it is important to examine the role of white privilege in a system where the majority of criminals and the majority of practitioners are white. As was previously discussed, one of the many important benefits of white privilege is that if you are a white offender, you are far more likely to be arrested, processed, defended, and prosecuted, and if sentenced, more likely to be supervised by members of your own race. This becomes important when thinking about a system where racial biases have been well documented. The implications of white privilege and the likelihood that white people are in power at almost every stage of the system strongly determine the policy outcomes and practices of the criminal justice system. As stated earlier, the white experience is seen as the normative experience in society at large. This allows whites to pass judgment on the legitimacy of the impact of race for non-whites. Thus, there is a benefit to a shared racial experience between offender and system professional. It can be assumed that they will understand one another to a certain extent because, even though they may differ in other ways, they share the experience of race. It might then also be theorized that an offender of color is more likely to have their racial experience dismissed or minimized, even unintentionally. For instance, in a system where the majority of practitioners are white, an AfricanAmerican offender asserting the racism of policing practice may have a difficult time getting his viewpoint legitimized because it is at odds with the experience white practitioners have had with law enforcement. This can be seen in some of the backlash discussed earlier to the Black Lives Matter movement. The initial case of police misconduct in Ferguson was greeted with great skepticism by whites, even those working within criminal justice systems. After all, there was no video or visual representation of the event and the



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officer was not charged with any wrongdoing by a grand jury. The interpretation of the impact of race on the situation was therefore left to the individual (based on his/ her own racial experience). However, when the Department of Justice findings were released documenting a pattern of racist behavior, the dialogue shifted because an outside force confirmed the racial experience of people of color. Similarly, in the months since Ferguson, as repeated videos of police officers shooting unarmed people of color surfaced and local officials moved more often to bring charges against these officers, whites have generally come to understand that there is a racial reality in policing that they were simply not experiencing. From this recent experience with race and policing, one can assert then that there are important implications of racial privilege to a criminal justice system where the majority of practitioners are white. But how white is the criminal justice system? It is critical to examine the actual statistics at every stage of the system, beginning with law enforcement. Law Enforcement

In 2013, the most recent year for which data are available, local police departments employed almost 500,000 sworn officers. This is a 35% increase in the number of sworn officers that were employed in 1987 and the highest number ever employed. Of those sworn officers, only 27% were officers of color with 12% of these being African American, 11.6% being Latino, and the remaining 3.4% being other non-white racial groups. In larger police jurisdictions, two out of every five officers belonged to an ethnic or racial minority compared to one out of every five in smaller jurisdictions. While this is an increase in the number of minority officers employed by local police agencies, and while large urban police jurisdictions show slightly more diversity, it still means that 73% of sworn police officers working for local police agencies in 2013 were white (Reaves, 2015). These numbers demonstrate the extent to which race may play a role in the dynamics of arrest. It is far more likely for any offender to be arrested by a white police officer than a police officer of color. Thus, one could assert that police policy and practice as well as street level enforcement of these come predominantly from a white racial perspective. Courts

The racial disparity in the American court system is even greater than in policing. According to Justice for All?, a report issued by the Women’s Donor Network, of the almost 2,500 elected prosecutors in the United States, 95% are white and 79% are white men (Fandos, 2015). This is a critical number because it is the prosecutors in most states who decide whether an offender will be indicted for an offense and what the specific charges will be. Prosecutors also decide whether police misconduct cases will be taken to a grand jury for possible indictment. Prosecutors make decisions that consider extralegal factors such as race and ethnicity, and racial stereotypes further socially construct “blameworthiness” or perceived dangerousness of the offenders such that “minority offenders face greater odds of being charged or fully prosecuted than White offenders” (Wu, 2016, p. 450). Statistics on the racial make-up of the country’s public defenders are largely unavailable, yet one can assume that the racial composition would be similar to those of prosecutors. These statistics would be particularly useful as three-fourths of American offenders are forced to use public defenders for criminal defense during their legal process, although this use is also impacted by race. In racial terms, 69% of white male defendants use a public defender while 73% of Latino male defendants and 77% of African-American male defendants use public defenders (Langton & Farole, 2015). Other studies have shown that implicit bias in the public defender environment

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may work against defendants of color in both the case triage and defense processes (Richardson & Goff, 2013). This bias in the triage process is critical to understand as more than 70% of public defender offices nationwide say they are understaffed with budgets too low to accomplish the work (Sentencing Project, 2013); thus, triage becomes a way of managing system overload. According to the American Bar Association (ABA), in the country’s trial courts in 2010, only 7% of judges were African American and only 3% were Latino. When including all minority judges, the ABA estimates that only 14% of American judges at the trial court level are minorities meaning that 86% are white (ABA, 2010). More generally, in the 2000s, it is estimated that about 29% of state court judges were minorities meaning 71% were white (Reddick, Nelson, & Caulfield, 2009). Of this 29%, more than half, 54%, were African American and 28.4% were Latino (ABA, 2010). The Law School Admission Council and the American Bar Association are currently collaborating on a report called Landscape of Legal Diversity: By the Numbers, which is forthcoming and which will give a more complete picture of diversity, or the lack thereof, in American courts. The process by which arrests are transformed into actual charges and the decisions made about judicial processing and procedure are made almost exclusively from a white racial perspective. Corrections

Information on the racial make-up of probation, corrections, or parole officers is almost nonexistent. While the Bureau of Justice Statistics does annual reviews of the populations of offenders on probation or incarcerated, including numbers on the racial make-up of this population, rarely are the practitioners themselves surveyed or counted. One of the few sources of this information is the Sourcebook of Criminal Justice Statistics maintained at the University of Albany. In 2003, the most recent year for which statistics are available, there were approximately 210,600 individuals working as officers in jails and prisons in the United States. Of this number, 123,300 were white (59%), 47,100 were African American (22%), and 15,600 were Latino (7%). Of the 151,200 individuals working specifically as correctional officers, 89,600 were white (59%), 35,800 were African American (24%), and 11,700 were Latino (8%) (p. 94). Correctional numbers represent the same racial picture in corrections as in other parts of the criminal justice system. Thus, one could logically assert that the white majority in correctional supervision would continue to be true today. At this level of the system, however, having the majority of practitioners represent a white racial experience is particularly significant given that the majority in prison inmates are people of color.

White Privilege Revisited: A Systemic Perspective As mentioned before, the recent incidents of police excessive use of force have opened a national dialogue concerning the interplay between the race of the offender or suspect and the race of the criminal justice practitioner. Is a white police officer more likely to use deadly force against a black or brown suspect? While there seems to be anecdotal evidence that this is indeed possible, the specific answer to this question is difficult to find as police do not keep statistics on their own use of deadly force. However, it opens a larger discussion about the nature of racial privilege in criminal justice specifically. Given that whites in society have enjoyed economic, political, legal, and societal privileges based on the color of their skin since before the founding of the country, is it likely that they also experience racial privilege within the context of the criminal justice system?



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The first obvious answer is that the racial make-up of the entire system ensures that a white offender is more likely to interact with white system professionals at every level of the system. In other words, given the statistics explained above, generally a white offender is fairly likely to be arrested and processed by white police officers, prosecuted and defended by white attorneys in a courtroom overseen by a white judge, and if convicted and sentenced, more likely to be supervised by white probation or correctional officers. Similarly, a white victim is likely to give his or her report to white officers and appear in court in front of white legal professionals. This begs the question, is there a racial privilege in simply getting to interact with people of one’s own race when attempting to navigate a system as complex and adversarial as the criminal justice system? Further, the mechanism by which laws are created in the United States is largely still in the hands of white people. For instance, in 2012, 92% of U.S. Governors were white, and 84% of the elected U.S. Senators and Representatives were white (National Urban Fellows, 2012). Barack Obama represents our first African-American president, and while the current Supreme Court is 29% minority, historically only six of the country’s 112 justices were people of color (National Urban Fellows, 2012). Looking at the country as a whole then it becomes clear that whites still control not only the branches of government that decide what behavior will be considered illegal and generally what penalties may be imposed, but also the enforcement mechanisms within the system itself. Thus, it appears true, as Coates (2015) asserts, that being white still has a significant power associated with it. Does this translate into a measure of privilege for white offenders and victims? To understand the complexity of this question, we must examine the manner in which the intersections of gender and class, as well as other social identity categories, may affect the larger racial landscape. For instance, it remains true that men commit more crime than women, regardless of the racial/ethnic category, and that women (regardless of race) are more likely to be victims of specific crimes such as rape and sexual assault and less likely to be victims (regardless of race) of other violent crimes such as homicide. Even when just looking at the white population, it is important to examine issues of poverty and the role it plays in the life choices of individuals. For instance, while whites generally are better off economically than people of color, those living below the federal poverty level (FPL) are far more likely to experience violent victimization than those above this economic level. In other words, poor people are more likely to experience violent victimization than wealthy people, and this is true for poor whites as well as for poor minorities (Harrell, Langton, Berzofsky, Couzens, & SmileyMcDonald, 2014). Thus, race may prevent some victimization as whites are generally less likely to be the victims of violent crime, but socioeconomic status is also salient as poor whites are more likely than non-poor whites to be victims of violent crime. Given the history of race in the United States, it is obvious then that the racial landscape of the United States must be considered when assessing the nature of the criminal justice system, but it is also true that one needs to be careful not to use race as singular category of description when determining the role of racial privilege and the value of whiteness.

Questions for Review 1. How did the process of becoming white work for immigrants from Europe (i.e., the Irish or the Italians)? How did this process impact their access to the power structures of American society? 2. How is whiteness an advantage in the American criminal justice system? How does our understanding of whiteness impact the social construction of difference for the “other”?

3. What impact does race/ethnicity have in the experience of an offender in the criminal justice system? Are there specific advantages for white offenders? Are there disadvantages for offenders of color? 4. What is minority overrepresentation, and what role does it play in the American criminal justice system?

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References Abrams, D., Bertrand, M., & Mullainathan, S. (2012). Do judges vary in their treatment of race? Journal of Legal Studies, 41(2), 347–383. American Bar Association. (2010). National database on diversity in state courts. Battalora, J. (2013). Birth of a white nation: The invention of white people and its relevance today. Houston, TX: Strategic Book Publishing and Rights Co. Carson, E. A. (2014). Prisoners in 2013. Washington, DC: Bureau of Justice Statistics, U.S. Department of Justice. Coates, T. (2015). Between the world and me. New York: Spiegel & Grau. Department of Justice, Civil Rights Division. (2015). Investigation of the Ferguson Police Department. Washington, DC: U.S. Department of Justice. Dyer, R. (1997). White. London, UK: Routledge. Fandos, N. (2015). A study documents the paucity of black elected prosecutors: Zero in most states. New York Times. Gramsci, A. (1971). Selections from the prison notebooks of Antonio Gramsci. New York: International Publishers. Halpern, J. (2015). The cop. The New Yorker. Harrell, E., Langton, L., Berzofsky, M., Couzens, L., & Smiley-McDonald, H. (2014). Household poverty and nonfatal violent victimization, 2008–2012. Washington, DC: Bureau of Justice Statistics, U.S. Department of Justice. Herberman, E., & Bonczar, T. (2015). Probation and parole in the United States, 2013. Washington, DC: Bureau of Justice Statistics, U.S. Department of Justice. Ignatiev, N. (1996). How the Irish became white. Routledge. Johnson, A. G. (2005). Privilege, power, and difference (2nd ed.). McGraw-Hill. Johnson, A. (2012). Privilege as paradox. In P. Rothenberg (Ed.), White privilege: Essential readings on the other side of racism (4th ed.). New Jersey: Worth Publishers. Langton, L., & Farole, D. (2015). State public defender programs, 2007. Washington, DC: Bureau of Justice Statistics, U.S. Department of Justice. Minton, T. D., & Zeng, Z. (2015). Jail inmates at midyear 2014. Washington, DC: Bureau of Justice Statistics, U.S. Department of Justice.

National Center for Victims of Crime. (2013). New challenges, new solutions. Washington, DC: Office for Victims of Crime, U.S. Department of Justice. National Center for Victims of Crime. (2015). Engaging communities, empowering victims: National Crime Victims’ Rights Week Resource Guide. Washington, DC: Office for Victims of Crime, U.S. Department of Justice. National Urban Fellows. (2012). Diversity counts. New York: National Urban Fellows. Reaves, B. A. (2015). Local police departments, 2013: Personnel, policies, and practices.Washington, DC: Bureau of Justice Statistics. Reddick, M., Nelson, M. J., & Caulfield, R. P. (2009). Racial and gender diversity on state courts. American Bar Association. Richardson, L. S., & Goff, P. A. (2013). Implicit racial bias in public defender triage. Yale Law Journal, 122, 2626–2648. Sentencing Project. (2013). Report of the Sentencing Project to the United Nations Human Rights Committee regarding racial disparity in the United States criminal justice system. Washington, DC: Author. Takaki, R. (1993). A different mirror: A history of multicultural America. Boston, MA: Little, Brown and Company. Truman, J., & Langston, L. (2014). Crime victimization 2013. Washington, DC: Bureau of Justice Statistics, U.S. Department of Justice. Uniform Crime Reports. (2012). Washington, DC: Federal Bureau of Investigation. University of Albany. (2003). Sourcebook of criminal justice statistics, 2003. Albany, NY: University of Albany. Walker, S., Spohn, C., & DeLone, M. (2011). The color of justice: Race, ethnicity, and crime in America. Cengage Learning. Wise, T. (2012). Membership has its privileges: Thoughts on acknowledging and challenging whiteness. In P. Rothenberg (Ed.), White privilege: Essential readings on the other side of racism (4th ed.). New Jersey: Worth Publishers. Wu, J. (2016). Racial/ethnic discrimination and prosecution. Criminal Justice and Behavior, doi: 10.1177/ 0093854815628026.

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Stolen Lands, Stolen Lives, Revisited Native Americans and Criminal Justice Marianne O. Nielsen and Linda Robyn

Chapter Objectives • Describe the impacts of colonialism on Native Americans. • Explain the colonial processes that led to the current marginalization of Native Americans. • Link the impacts of colonialism to current Native American offending and victimization. • Explain the importance of cultural revitalization to crime prevention. • Explain the role of sovereignty and self-determination in crime prevention. Native Americans are the original inhabitants of the United States, and include American Indians, Alaska Natives, Inuit, Aleutian Islanders, and Native Hawaiians; that is, they are ­“peoples who trace their ancestry in these lands to time immemorial” (Morse, 1989, p. 1). They make up about 1.7% of the American population, with much higher percentages in states such as Alaska (24.2%), New Mexico (12.0%), South Dakota (12.5%), Oklahoma (33.4%), Montana (20.4%), and Arizona (16.1%) (U.S. Census Bureau, 2012). According to the Bureau of Indian Affairs, as of January 2014, there are 566 federally recognized tribes and Alaskan villages (Bureau of Indian Affairs, 2014). There are also about 300 to 350 tribes or villages that have only state recognition or no recognition at all (Archambeault, 2014, p. 86). The term “Native American” is a more general term that refers to people of American Indian descent who may not live on Indian lands or are descended from many different American Indian groups, or are of other Indigenous descent such as Alaskan Inuit and Native Hawaiians. It should be noted that many Native American groups are called by names that are not their own; that is, the name they have now may be based on an inaccurate description (like the word “Indian” itself) or on a name that European explorers learned from unfriendly neighboring nations (the Navajo, for example, call themselves “Diné”). In general, the most respectful name to use is the name that the Native American people in question call themselves, but for the purposes of this chapter, we will use the terms “Native American” and “American Indian” interchangeably and with all respect. Despite the resilience that Native Americans have shown since the 1800s in regaining their human rights and overcoming social issues caused by colonialism (Fixico, 2013), they are still of great importance as a “category of difference” within the criminal justice system. According to Snipp (1989), these reasons include that, as the original inhabitants of this land, Native Americans have a unique legal status and have contributed to the development of American law, politics, and justice. In addition, the United States has highly held values of equal opportunity and justice, yet the history and living conditions of many Native Americans are in direct contradiction to these values. Also, Native Americans and the dominant European-based society have basic cultural beliefs about justice that are in conflict and cause misunderstandings and injustice when they interact in the courtroom and elsewhere 175

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(Dumont, 1993). Another very important reason is that the myths and stereotypes that exist in our culture about Native Americans (see Harjo, 1998; Mihesuah, 1996) have led and continue to lead to discriminatory actions by people in positions of authority. Also very important is that Native Americans are overrepresented as offenders and victims in the criminal justice system, especially in some states and in some offense categories. Native American women, for example, have the highest sexual victimization rates of any group (Eichenberg, 2014a). Lastly, Native Americans are underrepresented as service providers and policy makers in the criminal justice system, meaning that Native Americans have little input into the justice policies and decisions that affect their lives and communities. Despite recent national and international movements to increase the self-determination of Indigenous people, Native Americans are still affected by historically discriminatory laws such as the Major Crimes Act (1885), ongoing efforts by the government to diminish their sovereignty and expand power over them, and the many criminogenic conditions that Native Americans are not legally empowered or structurally able to prevent (see Austin, 2009, p. xix).

Historical Context In discussing how the current situations of discrimination, overrepresentation, and underrepresentation came about, it is necessary to examine six important aspects of Native American history: colonization, marginalization, loss of human rights, urbanization, ­cultural revitalization, and self-determination (sovereignty). Colonization starts out as “a relationship of domination between an Indigenous. . . majority and minority of foreign invaders [who] are convinced of their own superiority and of their ordained mandate to rule” (Osterhammel, 1997, pp. 16–17). The numbers reverse over time, but the power, relationship, and attitudes remain. Even so, colonization is still more than that. Colonization did in the past, and continues today, “to undermine the political, m ­ ilitary, social, psychocultural value system, law and order, and knowledge bases of the ­colonized while imposing the values and culture of the colonizer” (Robyn & Alcoze, 2006, pp. 71–72). North America was invaded and eventually controlled by Europeans, as were Australia and New Zealand, and much of Africa, South America, and Asia. From the time of American Indian/European contact until shortly after the Revolutionary War, American Indians and colonists lived together more or less cooperatively, competing over trade and suffering from periodic conflicts as American Indian nations became embroiled in colonial wars such as the “French and Indian Wars,” and groups of land-greedy settlers attacked Native American communities. American Indians were the dominant group during this period although their autonomy waned as factors such as disease and the resulting social disorganization took their toll, as did the ever-increasing numbers of land-hungry invaders. The Europeans were dependent on the Native Americans for food, shelter, trade, knowledge of the land and its resources, and military aid (Miller, 1991). With the expansion of invading settlers and their thirst for land, settlers began to use military and legal coercion against Native Americans, a period which lasted until about World War II. Military campaigns and massacres by colonists, along with continuing epidemics of foreign diseases such as smallpox and tuberculosis, ensured that Native Americans, despite their active efforts, were unable to resist the colonial invasion. It is estimated that pre-contact Native American populations fell in the range of 2 to 7 million. For the contiguous United States, estimates fall between 1 and 5.5 million, with the number of American Indians in the United States reaching a low point of 237,000 by 1900 (Shoemaker, 1999, p. 3). During this era, missionaries, Indian agents, and well-meaning reformers tried to impose on Native Americans what they assumed to be vastly superior European ­cultures, languages, religions, economies, and social structures. Alcohol, which caused poor decision making, and credit with outrageously high interest were introduced by



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traders to exploit them. The ongoing violation of their human rights continued as the reservation system relocated them onto small lots of unproductive land and their ­children were stolen and put into boarding schools. Indian agents had the right to determine who married, who could work, who got farming tools and medicines, and were not above using starvation and violence to make them obey. Even so, not all Native American groups were treated the same by the colonists; it depended on each nation’s usefulness, annoyance, or irrelevance to the increasingly dominant European-based society. Nevertheless, all suffered a severe loss of what the United Nations Declaration on the Human Rights of Indigenous Peoples describes as the ability to “possess the collective rights which are indispensable for their existence, well-being and integral development as peoples” (United Nations General Assembly, 2007, p. 4). An important part of the colonization process was the development of first a religionbased ideology, and then later a racist ideology of “biologically inferior” Native Americans. During much of colonization, Native Americans were seen as pagan, heathen, savages, dirty, drunken, and violent so that the colonizers felt justified in denying them basic human rights and, in general, treating them as less than human. The colonial ideology also had a paternalistic theme, labeling Native Americans as naive children incapable of controlling their own lives, and in need of protection and the civilizing influence of Europeans. This was particularly consequential for Native American women who in most American Indian cultures were the decision makers (Perrault & Proulx, 2000, p. 16). Social Darwinism, which stated that some biological “species” of human were more highly evolved than others, gave “scientific” credence to colonial prejudices and, in their minds, justified discriminatory acts (Trigger, 1985). Just as Social Darwinism gave “scientific” support for the outright prejudice of European settlers toward Indian people, the concept of manifest destiny gave religious justification to this as well (Robyn, 2004, p. 284). Since WWII, Native Americans and the dominant society have been in greater and lesser degrees of confrontation (Miller, 1991). Religious, educational, economic, political, and human rights are part of Native American/dominant society negotiations. This includes the relationship of American Indian people to their land and environment. Crimes committed by the U.S. government against American Indian people are still occurring today as Indian people are criminalized for resisting huge multinational corporations acting aggressively against Native people and the natural world (Robyn, 2004, p. 283). Public awareness of Native American issues is growing. Yet now more than ever, thanks to the long-term impact of colonial processes, Native Americans are engaged in a struggle to survive as culturally distinct Indigenous people (Boldt, 1993). This section on colonialism is, of necessity, extremely generalized and short; for excellent overviews of North American colonization, see Deloria and Lytle (1983), Fixico (2013), Jennings (1993), Nies (1996), and Wright (1992). The main impact of the colonial processes was that many Native American people were systematically marginalized from what is now the dominant society in the United States, despite their best efforts to adapt and survive. Suffering from social disorganization and without control over their own lives and resources, many Native American communities became immersed in a subculture of poverty. Villegas (2014), director of the Policy Research Center at the National Congress of Americans, describes Native American and Alaska Native populations as “asterisk nations” that in national studies are too small to be included statistically when race and ethnicities are broken down. With that, Native Americans and Alaska Native populations remain invisible for the most part. This hides the many individuals suffering from intergenerational post-traumatic stress and ending up committing crimes. The historical trauma of colonization and marginalization has had enormous impacts at the individual, community, and group levels that are passed on from generation to generation so that many Native American individuals commit both internal violence (e.g., suicide and other self-destructive behaviors) and external violence (e.g., family violence, sexual assault) (Duran, 2006).

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In 2012, more Native Americans (29%) lived in poverty than the nation as a whole at 16% (U.S. Census Bureau, 2013). This is more than one in four Native people (Peralta, 2014). The educational levels of American Indians and Alaska Natives were below those of the total population. Approximately 79% of Native Americans and Alaska Natives 25 years and older had at least a high school education, compared with 86% of the total population (U.S. Census Bureau, 2013). At 11%, the Native unemployment rate in the third quarter of 2014 was almost double the national rate of 6.2%, according to the Labor Department (Peralta, 2014). High rates of suicide, family violence, and alcohol abuse are also characteristics of some Native communities (Bachman, 1992). Suicide, seen as a private matter by some tribes, happens at a rate more than 3 times the national average, and up to 10 times on some reservations (Horowitz, 2014). Facing poverty, unemployment, domestic violence, sexual assault, alcoholism, drug addiction, and suicide, people in these communities have a huge hurdle to overcome (Horowitz, 2014; Roderick, 2010). These are criminogenic living conditions; that is, they put the inhabitants of these communities at higher risk of getting involved with the criminal justice system. See Ross (2014) for overviews of the many kinds of marginalization faced by many of today’s American Indian population. In sum, the loss of Native American human rights was integral to the colonization process. They were denied their human status through colonial ideology; they were treated as unequal; their freedom was curtailed; they were discriminated against; they lost their right to make decisions about their own lives and communities; they were forced to curtail their distinct political, legal, economic, social, and cultural institutions; and they lost their right to their own institutional structures, spirituality, and justice systems. See the United Nations Declaration of Rights for Indigenous Peoples for details (United Nations General Assembly, 2007). The impacts of these earlier social conditions are complicated by urbanization. Over 78% of Native Americans live outside of the mainly rural areas officially designated “Indian” (U.S. Census Bureau, 2013). Many Native Americans live in the marginalized areas of the city, although they may also be quite successful and be members of the middle and upper classes. Moving to an urban area also has a number of other possible consequences for Native Americans that could increase the likelihood of criminal justice involvement, including lack of the family, clan, and friend support network found back home; lack of understanding of urban behavioral expectations; lack of knowledge about what special services, if any, are available to Native Americans; lack of contact with nation-based spiritual and cultural life; and increased visibility to the police. The U.S. Census reports that the cities with the largest Indian populations were New York City (111,749), Los Angeles (54,236), and Phoenix (43,724). Cities with overall populations greater than 100,000 were Anchorage (12.4%), Tulsa (9.2%), Norman (8.1%), Oklahoma City (6.3%), Billings (6.0%), and Albuquerque (6.0%) (U.S. Census Bureau, 2012). Another element that must be considered is cultural revitalization. While many Native American cultural practices were repressed by laws, and a great deal of knowledge was lost as the result of population decimation, a great deal of cultural knowledge also remains. Native American individuals, communities, and nations resisted the imposition of foreign laws, religion, and government. Native American societies have been and still are extremely flexible, adaptive, and dynamic. They had to be in order to survive the active oppression they have suffered since colonialism began. Cultural revitalization is a series of movements as diverse as the communities in which they originate, with the objective of regaining (sometimes rediscovering) and re-institutionalizing the cultural traditions, ceremonies, languages, and social structures and environment that were damaged by colonialism. There are also movements toward self-determination and sovereignty, that is, movements to regain the right of American Indian nations to control their own social



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institutions, including education, social services, health services, leadership, and criminal justice. American Indian nations have the status of “domestic dependent nations,” meaning that they have limited legal rights to control their own society (Pommersheim, 1995). Some of these rights have been unilaterally legislated away since the time of the Treaties, including the right to handle major crimes on the reservations. Many of these rights, such as hunting and fishing rights, and the right to establish new industries (e.g., casinos), are under ongoing attack. Many Native Americans believe that increased ­sovereignty will enable them to implement culturally based social processes that will more effectively deal with the marginalization and social ills brought about by colonialism. In summary, the current involvement of Native Americans in the criminal justice system can only be understood in historical context. Colonization, marginalization, loss of human rights, urbanization, cultural revitalization, and self-determination must all be taken into account when considering Native Americans, crime, and justice.

Native American Offenders Crime rates for Native Americans are extremely suspect. There are many problems with the collection of data about Native Americans involved in the criminal justice system (Archambeault, 2014), but as with arrest rates in general throughout the country, Native American arrest rates have dropped significantly since 1984 (Silverman, 2009). It was only in the area of alcohol-related offenses (drunkenness, driving while intoxicated, and liquor violations) that Native Americans had the highest rates over whites and African Americans. For example, Native Americans were arrested for DUI at a rate of 479 per 100,000 residents, compared to 332 for all races (Perry, 2004, p. vii). Silverman (2009) reports that for African Americans and Native Americans, the rate of drunkenness in 2005 was 30% less than the rate in 1984, though Native Americans continue to have the highest rate for this kind of offense. The total arrest rate for Native Americans in rural counties (2.9%) is much higher than in urban areas (1.3%) and suburban areas (0.8%), reflecting residence patterns (Bureau of Justice Statistics, 2003, pp. 370–372). Harring reports that violent crime is very high among Native Americans as well, with American Indians being “disproportionately the victim of inter-racial rather than intra-racial violence” (Harring, 2014, p. 60). The stereotypes discussed earlier may inform the decisions of members of the dominant society, including criminal justice personnel. Harring (2014) points out that police can be racist in their handling of Native American suspects. According to a study by Stratton, treatment of Indians by officers ranged from indifference to brutality. Overall, in this study, officers had little knowledge of Indian cultures (cited in Fixico, 2000, p. 89). Decision making may be based on a stereotype since the percentage of Native Americans having a drinking problem varies from nation to nation and, in fact, more young white people than Native American use alcohol (Eichenberg, 2014b). Perry (2009), in her study of over- and underpolicing in Indian country, concluded that these practices “have facilitated both the criminalization and victimization of Native Americans as nations and as individuals” (p. 104). Discrimination may or may not also play a role in the sentencing of Native Americans; there is very little recent research in this area and the older evidence is contradictory. For example, Bachman, Alvarez, and Perkins (1996) in a sample of five states found a pattern of discrimination in the lengths of sentence and percentage of sentence served for Native Americans in some offense categories. Yet, Hutton, Pommersheim, and Feimer (1996) found no evidence of judges discriminating on the basis of race in the sentencing of Native women. A more complex pattern was found by Bynum and Paternoster (1996), who report that Native Americans in their sample were sentenced to shorter sentences but served a greater proportion of their sentences than white offenders.

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Native Americans are overrepresented as inmates. According to Perry (2004), Native Americans comprise about 16% of all offenders who enter federal correctional facilities annually, and have comprised about 15% of all federal prisoners since the mid-1990s. In 2010, they were incarcerated at a rate of 950 per 100,000 compared to 700 per 100,000 for other persons (Minton, 2011, p. 2). The exact number of Native Americans under some form of correctional control cannot be precisely determined due to various tribal justice systems, tribal agreements with the Bureau of Indian Affairs (BIA) police, and treaty conditions, among others, but prisons and local jails in states with large Indian populations or reservations report Indian offender populations “from seven to fifteen times the national average” (Archambeault, 2009, p. 192). In fiscal year 2001, 55% of American Indians entering federal prison were serving a sentence for a violent crime, compared to 4% of white offenders, 13% of black offenders, and 5% of Asian offenders (Perry, 2004, pp. 20–22). As of 2015, there are 3,019 prisoners of all races on death row (NAACP Legal Defense and Education Fund, Inc.). As of January 1, 2010, 37 Native American prisoners are on state and federal death row in the United States, which is 1.1% of the death row population. Both state and federal prisons hold condemned Native Americans. Since 1961, 15 Native Americans have been executed. Thirteen were executed for killing whites and two were executed for killing other Native Americans. Between 1979 and 1999, whites killed 32% of 2,469 Indian victims, and Native Americans killed 1% of 164,377 white victims (Baker, 2007; see also Fins, 2011; Perry, 2004). Despite laws to the contrary and despite the documented effectiveness of Native American spirituality programs such as sweat lodges, elders’ counseling, and cultural education as rehabilitative mechanisms (Nechi Institute & KAS Corporation, 1994), Native American inmates in some correctional institutions are still being denied access to spiritual counseling and ceremonies, and culturally sensitive drug and alcohol abuse treatment programs (Archambeault, 2009; Waldram, 1996). A precarious relationship between Native Americans and crime in the United States has existed since the Major Crimes Act was passed in 1885. Because of this unique relationship and jurisdictional boundaries, major crimes on Indian lands are often times left up to the federal government to deal with, or the state government if off-reservation. Native American males, females, and juveniles sometimes face involvement in the criminal ­justice system in different ways, depending on the crime committed and its location. Up-to-date statistics on Native American female arrests and incarceration in federal and state prisons are not available, though Ross (1998) in her sample at one state prison in Montana found that 25% of the women prisoners were Native American. She found that they received longer sentences than men and their numbers were increasing more rapidly. In Indian country jails, adult females accounted for 20% of the inmate population, and had a small but steady increase of nearly 14% between midyear 2009 and 2010, whereas the male jail population decreased by nearly 7% (Minton, 2011). Similar to Native American male inmates, Native American female inmates suffer from lack of culturally appropriate rehabilitation and treatment programming, and lack of access to spiritual guides and ceremonies (Fox, 2009). Native Americans are also overrepresented as juvenile offenders, with over 60% of youth in federal custody being Native American (Martin, 2014, p. 142). As Meyer (2009) writes, however, the vast majority of juvenile delinquency in Indian country would be classified as nonserious acts, with the most common arrests for drunkenness, liquor law violations, public disorder, vagrancy, and status offenses, and even among youth who are incarcerated, relatively petty offenses seem to be the norm. Criminogenic conditions for young Native Americans include alcoholism and substance abuse, poverty, child abuse, cultural identity problems, family disruption, lack of educational opportunities, assimilation into the dominant society, high rates of unemployment, and criminal victimization (Armstrong, Guilfoyle, & Melton, 1996; Martin, 2014; Meyer, 2009).



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Cultural revitalization is an issue particularly relevant to juvenile crime because many community-level justice initiatives are aimed at preventing juvenile offenses. These programs are often based on traditional justice processes such as counseling by elders, and the learning of traditional language, and ceremonial and economic skills, in the belief that by learning these, young persons will feel more pride in their community and themselves. An important problem with this strategy is that many young Native Americans live in urban areas, or feel no connection to tradition because they come from families that are significantly acculturated into the dominant society. In summary, Native American men, women, and young people are overrepresented in the criminal justice system for some offenses and in some facilities. In addition, more culturally sensitive and appropriate rehabilitation, treatment, and spiritual programming are needed for Native American offenders throughout the criminal justice system.

Native American Victims of Crime Native Americans have been victims of crime as nations and as individuals. As nations, Native Americans had their own laws and justice systems. These were not recognized as such by the invading colonists, because doing so would have consequences for the “legality” of their exploitation of the new resource-rich continent. Colonial powers consciously broke international law by staking claims and declaring ownership occupied by Indigenous people. The colonial powers justified their actions by the “right of first discovery,” which stated that “a Christian nation was divinely mandated to exercise dominion over non-Christian ‘primitives’ and to assert proprietary title to any ‘unoccupied’ land” (Boldt, 1993, p. 3). Second, the Treaties, legal documents signed between the colonial government and Native nations, were broken by the colonial government when it no longer remained in its political or economic interest to honor them. This trend continues today as the American federal and state governments chip away at remaining Treaty rights. Third, laws were used to define Native American identity so that they were seen as less capable and rational than adults. In the Cherokee Nation case (1831), the federal government placed itself in “guardianship” over American Indians, ostensibly to protect them from unscrupulous whites; however, this relationship made it possible for the federal government to facilitate the theft of their lands and resources. Laws such as the Indian Removal Act of 1830 forced the majority of American Indian nations in the eastern part of the country to leave their lands and move west of the Mississippi River (Deloria & Lytle, 1983). Native Americans in some states were forbidden the vote unless they could prove that they had “become civilized” by severing all ties with their Indian identity (Deloria & Lytle, 1983). Native American individuals have also been the victims of crime, both historically and currently. Luna-Firebaugh (2007, p. 12) writes that the murder rate in Indian country is 29 per 100,000, compared with the national murder rate of 5.6 per 100,000. According to Perry (2004, p. iii), self-report studies revealed that Native Americans and Alaska Natives are victims of violent crime at a rate more than twice the national average of other U.S. racial or ethnic groups. Furthermore, rates of violence experienced by Native Americans occur across age groups, housing locations, and by gender. On average, American Indians experienced an estimated 1 violent crime for every 10 residents age 12 or older. From 1976 to 2001, an estimated 3,738 American Indians were victims of homicide. After 1995, this rate decreased about 45% from 6.6 to 3.6 homicides per 100,000 residents in 2001. The killer of an American Indian was most likely to be another American Indian (58%), followed by a white (32%). Among American Indians age 25 to 34, the rate of violent crime victimizations was more than 2½ times the rate for all persons the same age. Another disturbing fact is that Native Americans experience violence at the hands of someone of a different race, more than

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people of other races (70%), mainly by whites (60%), and these white victimizers are more likely to have consumed alcohol or drugs, or both (55%), before committing the offense (Perry, 2004). Individual acts of ethnoviolence, from verbal harassment to brutal assaults with weapons, are a part of everyday life for many Native Americans to the point where they become perceived as “normal” (Perry, 2008). The rate of violent victimization among American Indian women is 3½ times greater than the national average (FBI, 2012). A 2004 Department of Justice report estimates that domestic violence and sexual assault rates are as much as 50% higher for Native American women than for women of other ethnicities (Perry, 2004). Indigenous women have come to see sexual abuse as a regular part of life, and subjugation to men is normalized. However, there was a time (pre-Columbus) when Indigenous women were revered because they gave life and were respected. Today, it is estimated that 34%, or more than 1 in 3, Native women will be raped during their lifetime, whereas for women as a whole the risk is less than 1 in 5 (Tjaden & Thoennes, 2000). American Indians were more likely to be victims of assault and rape/sexual assault committed by a stranger or an acquaintance rather than an intimate partner or a family member (Perry, 2004, p. 14). In addition to these bleak statistics regarding Native Americans as victims of violent crime are issues surrounding the ability of tribal police to arrest perpetrators of violent crimes. Because of existing case law, tribal police can arrest only tribal members and other Indians, except in cases of domestic violence, and physical and sexual assault since the reauthorization of the Violence Against Women Act (VAWA) in 2013. This revised law gives authority to tribes to arrest and prosecute non-Indians on tribal lands who perpetrate crimes of violence against Native American women. In other cases, “Non-Indian perpetrators, even if they live on the reservation or are in a personal or business relationship with an Indian, may only be detained or left to the state or federal police to be apprehended. This can cause lawlessness on a reservation that cannot be addressed by tribal police” (Luna-Firebaugh, 2007, p. 14).

Violence Against Women Act: More Revisions Needed for American Indian and Alaska Native Women Linda Robyn In 1994, Congress passed the Violence Against Women Act (VAWA) with a collection of funding programs, initiatives, and actions designed to improve the criminal justice and community-based responses to violence against women, including sexual violence. In 2005, VAWA expanded a specific Tribal Title (Title IX) to improve safety and justice for American Indian and Alaska Native women. The recently revised version of the Violence Against Women Act does not give American Indian women enough protection against domestic violence, sexual assault, and rape. A revision of the Violence Against Women Act came about in 2013 with promises of new protections for American Indian women. However, as of 2015, violence against American Indian women in Indian country is at an all-time high. VAWA is geared more toward domestic violence while American Indian women experience some of the highest rates of sexual assault in the United States. Rape in Indian country is at epidemic proportions, and public safety issues on American Indian reservations are

extremely complicated due to the many changes in jurisdiction in Indian country over the last 200 years. A case in point is Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which, in a nutshell, decreed that tribes have no inherent criminal jurisdiction over nonIndians. Because of this law, Native women who were ­sexually assaulted by non-Indian men were told that tribal police could do nothing for them. Even with revisions, VAWA still falls short of protecting American Indian sexual assault victims on tribal lands. VAWA covers “special domestic violence criminal jurisdiction” to tribal courts over non-Indian offenders who commit domestic violence, dating violence, or violation of a protection order. It is important to note that the “special domestic violence and criminal jurisdiction” does not include the crime of sexual assault in every case. If a defendant commits sexual assault, and the assault does not occur within the contexts of domestic violence, dating violence, or a violation of a protection order, then the tribal court remains without recourse. However, if the assault does

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occur within the context of one of those three offenses, then the defendant may be held accountable in tribal court. This is noteworthy because the definitions of domestic violence and dating violence require some evidence of a pre-existing relationship between the defendant and the victim, and the burden of proof lies with the prosecuting attorney. Narrow definitions of what constitutes a sexual assault prohibit the prosecution of a defendant for a sexual assault that occurred during a “hook up,” or another instance in which the defendant and the victim do not have a prior romantic relationship, such as with acquaintance rape. Because the definitions of what constitutes a sexual assault on reservations are narrow in scope, VAWA still falls short of protecting American Indian and Alaska Native women to the fullest from sexual assault on tribal lands. Violence and sexual assault against American Indian and Alaska Native women should not depend on the ability to provide evidence that a pre-existing relationship exists between the defendant and victim, when that burden of proof does not hold true for non-Native women.

References Amnesty International. (2007). Maze of injustice: The failure to protect Indigenous women from sexual violence in the USA. Berkey, C. G. (1979). Indian law—Indian tribes have no ­inherent authority to exercise criminal jurisdiction over nonIndians violating tribal criminal laws within reservation boundaries (NCJ 066089). National Criminal Justice Reference Service, Office of Justice Programs. Catholic University Law Review, 28, 663–687. Retrieved from https:// www.mcjrs.gov/App/Publications/abstract.aspx?ID=66089. Bruner, L. (2015). Prosecuting non-natives for sexual assault on reservations. PBS News Hour. Retrieved from https://www. youtube.com/watch?v=1wBNKDzQvSc. Horowitz, S. (2014, February 8). New law offers protection to abused Native American women. The Washington Post. Horowitz, S. (2014, December 18). Repeal of ‘Alaska exemption’ gives tribes more power to protect Alaska Native women. The Washington Post. PBS News Hour. (2014, November 22). Above the law: Responding to domestic violence on Indian reservations. Retrieved from https://www.youtube.com/watch?v= OnrxIQU98Dg.

Under VAWA, the U.S. Justice Department developed a pilot program in which the Confederated Tribes of the Umatilla Indian Reservation, the Pascua Yaqui Tribe, and the Tulalip Tribes participated. During 2014, this pilot program allowed these tribes to expand their justice system to include non-Indians charged with domestic violence (Culp-Ressler, 2014). Because members of Congress reauthorized and strengthened VAWA so that it now recognizes tribal authority, Native American women nationwide have stronger protections against domestic violence and sexual assault. However, VAWA does not go far enough for Native American women. As noted in the textbox, prosecution of American Indian or Alaskan Native women’s sexual assault is not possible outside the scope of intimate partner violence (Tribal Court Clearinghouse, 2015). Therefore, if a Native American woman falls victim to sexual assault and cannot provide evidence of a pre-existing relationship, she faces continued legal marginalization. Another aspect of victimization among Native Americans in which there is very little research is the area of state–corporate crime. State–corporate crimes are illegal or socially injurious actions that occur when one or more institutions of political governance pursue a goal in direct cooperation with one or more institutions of economic production and distribution (Michalowski & Kramer, 2006, p. 3). State–corporate crime focuses on how state entities in concert with corporations engage in actions that cause injury, death, illness, economic loss, and environmental destruction. Nowhere is this type of crime more evident than in the Navajo Nation with exploitation of natural resources involving a state agency and numerous private mining corporations. In the United States, 5% of the U.S. oil and gas, one-third of its strippable lowsulfur coal, and one-half of its privately owned uranium are on Indian land (Gedicks, 1993, p. 40). Therefore, Indian reservations are of strategic importance to both corporations and the U.S. government, and the ability to exploit Indigenous groups of people is one of the hallmarks of state–corporate crime. As mentioned, many Indian nations are poor with high unemployment, substandard health care and education, and substance abuse. Given these sets of circumstances, large corporations, sometimes in

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State-Corporate Crime and Environmental Injustice on Native Lands Linda Robyn The U.S. Department of the Interior Indian Affairs reports that in 2012, energy and mineral resources generated over $701 million in royalty revenue paid to Indian mineral owners across the country, with income from energy and minerals being the largest source of revenue generated from Trust Lands. The Division of Energy and Mineral Development (DEMD) and the Bureau of Indian Affairs (BIA) realty staff have assisted tribes in negotiations of leases for oil and gas, totaling approximately 2,750,000 acres and about $45 million in bonuses (upfront payments). (See U.S. Department of the Interior Indian Affairs website: http://www.bia.gov/cs/groups/xieed/documents/ document/idc1-024535.pdf.) On the other hand, areas in the Navajo Nation have been contaminated for decades by uranium tailings left behind by multinational corporations, and fly ash and carbon dioxide emissions from coal mining companies. The result of these “business opportunities” offered to the Navajo mining companies is continued poverty; contaminated water and land; and cancers, birth defects, black lung, and other diseases. Companies mining in the Navajo Nation pay the people much less than what their resources are worth, and have left parts of the reservation in ruins. Still, mining companies continue to try to expand mining operations, and because the extraction of coal depletes billions of gallons of precious drinking water, the prediction is that Black Mesa in Arizona will remain dry for the next 20 years (Vice News Report, 2015). Vice News travels to the Navajo Nation to investigate how coal mining has affected the Navajo’s past, present, and future. In response to the devastating effects of coal mining, the Office of Surface Mining Reclamation and

Enforcement, part of the Interior Department that regulates the environmental effects of mining across the country, has issued new rulings requiring federal agencies to consider the carbon impacts of coal mines (Arizona Daily Sun, 2015). At issue is how royalties are paid, and how coal extracted and burned will impact the air and global warming, linking fossil fuel extraction to climate change. Recently, Denver federal judge, John Kane, ruled that the surface mining must consider the effects of burning coal at a New Mexico power plant before allowing expansion of the Navajo Nation’s mine. The stated concern is mercury pollution impacting fish in the San Juan River (Arizona Daily Sun, 2015). No mention or description of harm experienced by the Navajo people exposed to fly ash, carbon dioxide emissions, and water depletion caused by mining was made. This raises the question of corruption in tribal, state, and federal governments, and corporate mismanagement of funds and underpayment, or no payment at all, for resources to American Indians. An example is the Cobell case (1996), known as the largest class action lawsuit against the United States in U.S. history. Eloise Cobell, a Blackfoot Indian from Montana, filed a lawsuit on behalf of thousands of individual Indians after finding numerous discrepancies in the management of funds for lands held in trust by the United States. The revenues generated from lands leased to non-Indians or other companies for resource extraction are to be paid to the tribes and individual “land owners.” For over 100 years, the government failed in its duties to accurately account for income for leases, and did not pay the revenues to the Indians (Gilio-Whitaker, n.d.; see also Weeber, 2014).

cooperation with public agencies, exploit Indigenous people. Even though these desperately poor people receive some economic benefits from multinational intrusion on their lands initially, they pay a high price, especially in terms of harm to health and the environment for these benefits (Robyn, 2007, pp. 2–4). The limited existing research on Native American victimization of all types is plagued with the same methodological problems that occur with other offender statistics. But as is suggested elsewhere in this book, difference—racial, gender, age-based, or all three—can lead to increased targeting for victimization. With Native Americans though, colonization adds another dimension. Because of historical patterns of discrimination and hostility by the colonial criminal justice system, Native Americans may perceive today’s criminal justice system as hostile or indifferent, and therefore may not report their victimization. The long distances from some nations to police, schools, hospitals, and other services may not only prevent prompt assistance to victims, but may hinder reporting. Language barriers and cultural prohibitions about involving outsiders may also be factors in low rates of reporting (OVC, 1992). Victim assistance services in and around American Indian nations are often funded by the federal Office for Victims of Crime (OVC). The OVC began an initiative



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in 1987 to provide funding, training, and technical support to American Indian nations, including the Children’s Justice Act Partnerships for Indian Communities initiative that provides grants for tribes to improve “the investigation, prosecution, and management of child abuse cases in a manner designed to lessen additional trauma” (OVC, 2013). Examples of recent programs include the Iowa Tribe of Oklahoma Victim Assistance Program, the Flandreau Indian School of South Dakota’s mental health program, and developing videos on the needs of drug endangered children in Indian country (OVC, 2013). In summary, Native Americans have been the victims of past and present crimes, but little research has been done to document this, and victim services programs are still in the early stages of development in and around American Indian nations.

Native American Service Providers There is a growing recognition that the criminal justice system has failed Native Americans, and that it is not effective in handling the Native Americans in its care. One strategy is to encourage or require that non-Native criminal justice personnel at all levels of the system increase their knowledge about Native American cultures, and their intercultural communication skills (Nielsen, 2009; Ross, 1996). Second, Native Americans must be more involved in operating the criminal justice system. As mentioned earlier, Native Americans are underrepresented in all aspects of justice service provision even though many justice organizations have made special efforts to recruit Native Americans. Through the Indian Self-Determination and Education Assistance Act of 1975 and of 1994, the Bureau of Indian Affairs has turned over various law enforcement functions to the tribes making tribal police departments accountable to the tribe instead of the federal government, thus reducing much of the control of the Bureau of Indian Affairs Enforcement Services (Luna-Firebaugh, 2007, p. 25). The Tribal Law and Order Act (2010) expanded the powers of American Indian nations in sentencing felonies and increasing the number of correctional facilities; however, there are obstacles in the path of exercising these powers, including lack of funding for institutions and juvenile programs, and mandatory training of judges. It is also important to note that this law has no impact on Native Americans living off reservations (Archambeault, 2014), nor does it allow American Indian nations’ police forces to prosecute the approximately 76% of the population on reservations or Alaska Native villages who are not Native American or Alaska Native, unless they have committed a sexual offense (Perry, 2012). Native Americans can provide criminal justice services through several different routes. First, they can operate justice services on American Indian land staffed mainly by Native American personnel (though seldom exclusively), including tribal police forces, courts, jails, probation supervision, juvenile programs, and victims services as just mentioned. As discussed, by dominant society law, nations still have limited jurisdiction over the type of offenses and the type of offenders these services can handle (Archambeault, 2014). If the nation does not have sufficient funding or population, it may contract with state or county authorities (Wells, 2014). Second, they can be “regular” service providers within the European-based criminal justice system, such as police, probation, and so on, off-reservation. For example, in 2008, the Forest Service (4.8%) employed the highest percentage of American Indians in federal law enforcement, followed by the Fish and Wildlife Service (3.6%) and the National Park Service Rangers (3.0%) (Reaves, 2012). Third, they can operate Native American-based or European-based justice services outside of Native American land. These organizations are relatively rare compared to similar services available to Indigenous people in other countries, such as Canada and Australia. Indian cultural centers, of which there are dozens around the country, and local-level services such as

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DNA Legal Services serving Arizona Native Americans and non-Native Americans alike are examples of these kinds of services. Services may include alcohol abuse education or mental health counseling. Many of these services suffer from lack of steady funding, making it difficult for them to respond to all of their clients’ needs. Whenever possible, these organizations try to incorporate elements of their culture and practices within their organizational structure, programs, and policies. Even though they may help with more sensitive treatment and just decisions for Indian people, neither of these latter two roles gives employees sufficient options in culturally sensitive or culturally based processes or values. Finally and most appropriately, they can operate Native American-based services based on socialization processes that the nation has used since time immemorial, such as some of the victim services mentioned previously. Navajo Peacemaking is probably one of the best known of the initiatives using Navajo common law to resolve disputes (Austin, 2009). With the guidance and input of a peacemaker, disputants talk over the issue and arrive at a plan for resolving it. “Offenses” that have been handled include assault, sexual assault, domestic violence, and wrongful death, as well as more common disputes over grazing rights, boundaries, and other civil matters (see also Nielsen & Zion, 2005). Many Native American programs are a kind of restorative justice although more accurately they could be called “America’s original methods of dispute resolution” (Austin, 2009, p. xxii). They focus on preventing further occurrences through resolving underlying issues, and “healing” the offender, victim, and community. This kind of service provision not only is the most culturally sensitive strategy for helping many Native American offenders and victims, but may ultimately be the most effective because restorative justice approaches may help resolve the large issues of marginalization that cause Native American individuals to come into conflict with the criminal justice system in the first place. The main hope for Native Americans to escape overrepresentation in the criminal justice system is to regain their sovereignty, that is, regain their right to govern themselves and to build “the foundational, institutional capacity to exercise those rights effectively. . .” (Cornell & Kalt, 2007, p. 18). In the long term, to rebuild the capacity of their communities both on- and off-reservation, American Indian nations need to assert decision-making power, develop effective governments that reflect traditional culture, and ensure that they have leaders who are strategic decision makers and capable of mobilizing their people (Cornell & Kalt, 2007). There are still issues in many communities and nations surrounding overcoming poverty and developing funding and other resources, building the infrastructure of nations, asserting cultural values and processes, and providing services to the majority of Native American people who now live off American Indian lands. Native American groups need to have the choice, that is, to have self-determination, so that they can choose the justice systems and services most effective for their people—whether they are modeled on Western-based services (which continue to be the predominant model in most communities) or “rebuilt” modified services based on traditional, restorative justice practices. Native American people, communities, and nations are increasingly becoming members of international networks of Indigenous people trying to regain their human rights and self-determination. This global community is learning from each other’s experiences, actions, and development (see Hall & Fenelon, 2009), including in the area of criminal justice where practices such as family group conferencing, peacemaking, and sentencing circles are spreading across the globe, and not just in Indigenous communities. They are also teaching each other to use the courts of their countries to “reclaim property, secure human rights and confront injustice and its consequences” (Austin, 2009, p. xix).



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Whether or not American Indian nations will be allowed increased selfdetermination by the American government that has so long exploited them is the underlying question to improving Native American involvement with the criminal justice system (Boldt, 1993). Change coerced “from above” has not proven successful in the past, as today’s continuing marginalization of many Native communities attests. Native Americans need to make “ground-up” self-determined changes. Because of the important natural resources that Native Americans control now and hope to control in the future, increased self-determination for Native Americans may be perceived by the government to be against the national interests of the country, or at least its dominant majority. If this thinking continues, then Native American overrepresentation in the criminal justice system can also be expected to continue indefinitely.

Questions for Review   1. Why is self-determination so important for crime prevention in Native American communities?   2. Why is cultural revitalization important for crime prevention?   3. Why is historical context important for understanding Native American overrepresentation in the criminal justice system?   4. How does discrimination by criminal justice personnel play a role in overrepresentation?   5. What is meant by the term colonization? How does it relate to the loss of human rights?

  6. What was the function of ideology during colonization?   7. Compared to the nation as a whole, why are more Native Americans living in poverty?   8. What crimes are Native Americans most likely to commit?   9. Native American women are most likely to be victims of which crimes? 10. How did urbanization contribute to the marginalization of Native Americans? 11. Why are Native Americans important as a “category of difference” in the criminal justice system?

References Archambeault, W. (2009). The search for the silver arrow: Assessing tribal-based healing traditions and ceremonies in Indian country corrections. In M. O. Nielsen & R. A. Silverman (Eds.), Criminal justice in Native America (pp. 191–206). Tucson, AZ: University of Arizona Press. Archambeault, W. (2014). The current state of Indian country corrections in the United States. In J. I. Ross (Ed.), American Indians at risk (pp. 77–93). Santa Barbara, CA: Greenwood. Arizona Daily Sun, Staff Writers. (2015, May 16). Rulings require feds to consider carbon impact of coal mines. Section A(4). Armstrong, T. L., Guilfoyle, M. H., & Melton, A. P. (1996). Native American delinquency. In M. O. Nielsen & R. A. Silverman (Eds.), Native Americans, crime, and justice (pp. 75–88). Boulder, CO: Westview Press. Austin, R. D. (2009). Navajo courts and Navajo common law. Minneapolis, MN: University of Minnesota Press. Bachman, R. (1992). Death and violence on the reservation: Homicide, family violence, and suicide in American Indian populations. New York: Auburn. Bachman, R., Alvarez, A., & Perkins, C. (1996). Discri­ minatory imposition of the law: Does it affect sentencing outcomes for American Indians? In M. O. Nielsen & R. A. Silverman (Eds.), Native Americans, crime, and justice (pp. 197–208). Boulder, CO: Westview Press.

Baker, D. V. (2007). American Indian executions in historical context. Criminal Justice Studies, 20(4), 315–373. Boldt, M. (1993). Surviving as Indians: The challenge of self-government. Toronto, Canada: University of Toronto Press. Bureau of Indian Affairs. (2014, January 29). Notices. Federal Register, 79(19). Retrieved from http://www. bia.gov. Bureau of Justice Statistics. (2003). Sourcebook of criminal justice statistics. Washington, DC: U.S. Department of Justice. Retrieved from http://www.albany.edu/ sourcebook/pdf/t4122005.pdf. Bynum, T., & Paternoster, R. (1996). Discrimination revisited. In M. O. Nielsen & R. A. Silverman (Eds.), Native Americans, crime, and justice (pp. 228–238). Boulder, CO: Westview Press. Cornell, S., & Kalt, J. P. (2007). Two approaches to the development of Native nations: One works, the other doesn’t. In M. Jorgensen (Ed.), Rebuilding Native nations (pp. 3–33). Tucson, AZ: University of Arizona Press. Culp-Ressler, T. (Health Ed.). (2014). ‘A historic turning point’: Native American women finally gain more protection from rape and abuse. Think Progress. Retrieved from http://thinkprogress.org/health/2014/02/ 07/3263231/vawa-native-american-tribes/.

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Deloria, V., Jr., & Lytle, C. M. (1983). American Indians, American justice. Austin, TX: University of Texas Press. Dumont, J. (1993). Justice and aboriginal peoples. In Royal Commission on Aboriginal Peoples (Ed.), Aboriginal peoples and the justice system. Ottawa, Canada: Ministry of Supply and Services. Duran, E. (2006). Healing the soul wound. New York: Teachers College Press. Eichenberg, M. G. (2014a). Criminal victimization of Native Americans. In J. I. Ross (Ed.), American Indians at risk (pp. 41–58). Santa Barbara, CA: Greenwood. Eichenberg, M. G. (2014b). Native Americans and the abuse of alcohol and drugs. In J. I. Ross (Ed.), American Indians at risk (pp. 419–438). Santa Barbara, CA: Greenwood. Federal Bureau of Investigation (FBI). (2012). Journey through Indian country, Part 1: Fighting crime on tribal lands. Retrieved from http://www.fbi.gov/news/stories/ 2012/june/indian-country_060112/indian-country_ 060112. Fins, D. (2011). Death row USA. A quarterly report by the criminal justice project of the NAACP Legal Defense and Education Fund, Inc. In Death Penalty Information Center. (2015). Native Americans and the death penalty. Retrieved from http://www.deathpenaltyinfo.org/ native-americans-and-death-penalty. Fixico, D. (2000). The urban Indian experience in America. Albuquerque, NM: University of New Mexico Press. Fixico, D. L. (2013). Indian resilience and rebuilding. Tucson, AZ: University of Arizona Press. Fox, M. J. T. (2009). Criminal justice challenges for Native American women. In M. O. Nielsen & R. A. Silverman (Eds.), Criminal justice in Native America (pp. 46–60). Tucson, AZ: University of Arizona Press. Gedicks, A. (1993). The new resource wars: Native and environmental struggles against multinational corporations. Boston, MA: South End Press. Gilio-Whitaker, D. (n.d.). The history behind the Cobell case. Retrieved from http://nativeamericanhistory. about.com/od/Law/a/The-History-Behind-The-CobellCase.htm. Hall, T. D., & Fenelon, J. V. (2009). Indigenous peoples and globalization: Resistance and revitalization. Boulder, CO: Paradigm Publishers. Harjo, S. S. (1998). Redskins, savages, and other Indian enemies: A historical overview of American media coverage of Native peoples. In C. R. Mann & M. S. Zatz (Eds.), Images of color, images of crime (pp. 30–45). Los Angeles, CA: Roxbury. Harring, S. L. (2014). Criminal violence in American Indian and Alaska Native communities. In J. I. Ross (Ed.), American Indians at risk (pp. 59–75). Santa Barbara, CA: Greenwood. Horowitz, S. (2014, March 9). The hard lives—and high suicide rate—of Native American children on reservations. The Washington Post. Retrieved from http://www. washingtonpost.com.

Hutton, C., Pommersheim, F., & Feimer, S. (1996). I fought the law and the law won. In M. O. Nielsen & R. A. Silverman (Eds.), Native Americans, crime, and justice (pp. 209–220). Boulder, CO: Westview Press. Jennings, F. (1993). The founders of America: From the earliest migrations to the present. New York: W. W. Norton. Luna-Firebaugh, E. (2007). Tribal policing: Asserting ­sovereignty, seeking justice. Tucson, AZ: University of Arizona Press. Martin, F. A. (2014). Native youth delinquency. In J. I. Ross (Ed.), American Indians at risk (pp. 135–152). Santa Barbara, CA: Greenwood. Meyer, J. (2009). Ha’alchini, haadaah naasdah (“They’re not going to be young forever”): Juvenile criminal justice. In M. O. Nielsen & R. A. Silverman (Eds.), Criminal justice in Native America (pp. 32–45). Tucson, AZ: University of Arizona Press. Michalowski, R. J., & Kramer, R. C. (Eds.). (2006). State– corporate crime: Wrongdoing at the intersection of business and government. New Brunswick, NJ: Rutgers University Press. Mihesuah, D. (1996). American Indians: Stereotypes and realities. Atlanta, GA: Clarity Press. Miller, J. R. (1991). Skyscrapers hide the heavens: A ­history of Indian–White relations in Canada (rev. ed.). Toronto, Canada: University of Toronto Press. Minton, T. (2011). Jails in Indian country, 2010. Retrieved from www.bjs.gov/content/pub/pdf/jic10.pdf. Morse, B. W. (1989). Aboriginal peoples and the law (rev. 1st ed.). Ottawa, Canada: Carleton University Press. Nechi Institute & KAS Corporation. (1994). Healing, spirit and recovery: Factors associated with successful integration. Ottawa, Canada: Supply and Services Canada. Nielsen, O. (2009). Introduction to the context of Native American criminal justice involvement. In M. O. Nielsen & R. A. Silverman (Eds.), Criminal justice in Native America (pp. 1–17). Tucson, AZ: University of Arizona Press. Nielsen, M. O., & Zion, J. W. (2005). Navajo Nation peacemaking: Living traditional justice. Tucson, AZ: University of Arizona Press. Nies, J. (1996). Native American history: A chronology of a culture’s vast achievements and their links to world events. New York: Ballantine. Office for Victims of Crime (OVC), U.S. Department of Justice. (1992). Victim services to serve Native Americans. OVC Bulletin (NCJ 133963). Washington, DC: U.S. Department of Justice. Office for Victims of Crime (OVC), U.S. Department of Justice. (2013). OVC fact sheet: OVC builds capacity to serve crime victims in Indian country. Retrieved from www.ovc.gov/pubs/tribalvictimsofcrime/info. html. Osterhammel, J. (1997). Colonialism: A theoretical overview. Princeton, NJ: Markus Wiener Publishers.



Peralta, K. (2014). Native Americans left behind in the ­economic recovery. U.S. News & World Report. Retrieved from http://www.usnews.com/news/articles/2014/11/27/ native-americans-left-behind-in-the-economic-recovery. Perrault, S., & Proulx, J. (2000). Introduction. In J. Proulx & S. Perrault (Eds.), No place for violence (pp. 13–21). Halifax, Canada: Fernwood Publishing. Perry, B. (2008). Silent victims: Hate crimes against Native Americans. Tucson, AZ: University of Arizona Press. Perry, B. (2009). Policing race and place in Indian ­country. Lanham, MD: Lexington Books. Perry, S. W. (2004). American Indians and crime: A BJS statistical profile, 1992–2002 (NCJ 203097). Washington, DC: U.S. Department of Justice. Perry, S. W. (2012). Tribal crime data collection activities, 2012. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Pommersheim, F. (1995). Braid of feathers: American Indian law and contemporary tribal life. Berkeley, CA: University of California Press. Reaves, B. A. (2012). Federal law enforcement officers, 2008. U.S. Bureau of Justice Statistics, Department of Justice. Retrieved from www.bjs.gov/content/pub/pdf/ fleo08.pdf. Robyn, L. (2004). Removal of the southwest Michigan Potawatomi: Government crimes of oppression and ­cultural genocide. In C. T. M. Coston (Ed.), Victimizing vulnerable groups: Images of uniquely high-risk crime targets (pp. 283–284). Westport, UK: Praeger. Robyn, L. (2007, April 12). Uranium mining on the Navajo Nation: A case of state–corporate crime. A paper ­presented at the Annual Meeting of the Western Social Sciences Association, Calgary, Canada. Robyn, L., & Alcoze, T. (2006). The link between environmental policy and the colonization process and its effects on American Indian involvement in crime, law, and society. In J. I. Ross & L. Gould (Eds.), Native Americans and the criminal justice system (pp. 67–84). Boulder, CO: Paradigm Publishers. Roderick, L. (Ed.). (2010). Alaska Native cultures and issues. Fairbanks, AK: University of Alaska Press. Ross, J. I. (Ed.). (2014). American Indians at risk. Santa Barbara, CA: Greenwood. Ross, L. (1998). Inventing the savage. Austin, TX: University of Austin Press. Ross, R. (1996). Returning to the teachings: Exploring aboriginal justice. Toronto, Canada: Penguin. Shoemaker, N. (1999). American Indian population ­recovery in the twentieth century. Albuquerque, NM: University of New Mexico Press.

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Silverman, R. A. (2009). Patterns of Native American crime 1984–2005. In M. O. Nielsen & R. A. Silverman (Eds.), Criminal justice in Native America (pp. 18–31). Tucson, AZ: University of Arizona Press. Snipp, C. M. (1989). American Indians: The first of this land. New York: Russell Sage Foundation. Tjaden, P., & Thoennes, N. (2000). The prevalence, i ncidence, and consequences of violence against ­ women: Control and prevention. National Criminal Justice Reference Service, Office of Justice Programs. Retrieved from http://www.ncjrs.gov/txtfiles1/ nij/183781.txt. Tribal Court Clearinghouse: A project of the Tribal Law and Policy Institute. (2015). Retrieved from www. tribal-institute.org/lists/tlpi.htm. Trigger, B. G. (1985). Natives and newcomers. Kingston, Canada: McGill-Queen’s University Press. United Nations General Assembly. (2007). United Nations Declaration on the Rights of Indigenous Peoples. United Nations (07-58681—March 2008—4,000). Retrieved from www.un.org/esa/socdev/unpfii/ documents/DRIPS_en.pdf. U.S. Census Bureau. (2013, November). Facts for ­features: American Indian and Alaska Native heritage month. Retrieved from www.census.gov./newsroom/facts-forfeatures/2014/cb13-ff26.html. U.S. Census Bureau. (2012). The American Indian and Alaska Native population: 2010. Retrieved from www. census.gov/prod/cen2010/briefs/c2010br-10.pdf. Vice News Report. (2015, March 3). Cursed by coal: mining the Navajo Nation. Retrieved from http://www. youtube.com/cursedbycoal. Villegas, M. (2014). Native Americans left behind in the economic recovery. U.S. News and World Report. Retrieved from http:www.usnews/articles/ 2014/11/17/native-americans-left-behind-in-the- economic-recovery. Waldram, J. B. (1996). Aboriginal spirituality in corrections. In M. O. Nielsen & R. A. Silverman (Eds.), Native Americans, crime, and justice (pp. 239–253). Boulder, CO: Westview Press. Weeber, S. (2014). Corruption on Indian reservations. In J. I. Ross (Ed.), American Indians at risk (pp. 25–39). Santa Barbara, CA: Greenwood. Wells, L. E. (2014). Policing Indian country: Law enforcement on reservations. In J. I. Ross (Ed.), American Indians at risk (pp. 113–134). Santa Barbara, CA: Greenwood. Wright, R. (1992). Stolen continents: The “new world” through Indian eyes. Boston, MA: Houghton Mifflin.

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The Continuing Significance of Race African Americans and the Criminal Justice System Stephani Williams

Chapter Objectives • Discuss how assumptions about difference impact the experiences of African Americans. • Describe how the role of law was historically used to deny rights and access to African Americans within the criminal justice system. • Compare and contrast the role of law, historically and in a contemporary context, in determining the treatment of African Americans within the criminal justice system. • Analyze the data related to the policing of African-American communities (driving while black, stop and frisk, etc.). • Analyze the factors that complicate our understanding of the true criminal activity for African Americans. • Identify the predominant theories that attempt to explain African-American offending. • Compare and contrast the offending and arrest patterns for African-American men and women. • Summarize patterns of African-American victimization. • Identify strategies for improving the relationship between African-American communities and criminal justice representatives. As the new edition of this book was being written, two major events brought to the forefront of American consciousness the harsh realities of the relationship between police and AfricanAmerican communities in the United States. In the wake of Ferguson and Baltimore, we must consider how the continuing significance of race impacts the criminal justice experience for African Americans and why that matters for all of us.

Considering the Consequences of Assumptions In the wake of the tragic events of Ferguson and Baltimore, media coverage often exacerbated pre-existing stereotypes associating Black America with crime, dysfunction, poverty, and a failure to desire or achieve the American Dream. Michael Brown is just one of many young, black men in America whose perceived criminality is more important than who they really are. According to a U.S. Department of Justice report (as cited in Urbina & Alvarez, 2015, pp. 216–217), between 2003 and 2009, 4,813 people died in the process of being arrested or while in police custody. One thousand five hundred forty of those citizens, roughly one-third of those who lost their life while in the process of being arrested and/or in police custody, were African American. During the reported period, African Americans represented roughly 13% of the population, 28% of arrests, and 32% of all arrest-related homicides (Urbina & Alvarez, 2015). At the heart of the incidents that took place at Fruitvale Station, in Ferguson, and in 190



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Baltimore is a belief in the criminality and violence of African Americans and the threat they pose to officer safety and society. It is the persistence of such beliefs that have continued to impact police-citizen encounters in the years that have followed. Unfortunately, these beliefs and the actions that followed are possible because for many the assumption is that blacks, and particularly young, black men, are inherently different. The Construction of Difference

Difference, and the importance of those differences, is socially constructed (Chapter 2). Such social construction may happen subtly and ambiguously, but is also defined and maintained through legal and social institutions, and through personal and social group activities designed to maintain privilege. In 1958, Blumer argued that prejudice largely resides in our desire to maintain the position and importance of our own racial group. He argued that in order for prejudice to exist, racial identification must also exist. It is in this context that the importance of classification and belonging become important. For those belonging to dominant or normative groups, there is a primary concern with group position relative to the subordinate group (as cited in Gallagher, 2004). In our society, as in most countries, the more normative groups to which one belongs (white, male, heterosexual, able-bodied, Christian, etc.), the more power and privilege one has to create and maintain the boundaries between normativity and difference. Categorization “is the process by which society decides which individuals fit into the boxes used to define difference” (Wonders, 2009 [Chapter 2, p. 14]); such categorization has a powerful impact on human interaction. When categorization takes place, assumptions are generally made based largely on the ascribed characteristics over which one has no control. We assume that maleness or femaleness, whiteness or blackness defines a person, their life experiences, and their values. Those assumptions are wrong as often as they are right. We think we “know” and that often matters more than who they really are (Wonders, 2009 [Chapter 2, p. 13]). This is of particular significance as we focus on the interactions and experiences of African Americans with the American criminal justice system. Re-examining the Consequences of Difference

In the United States, it is often still assumed that race reflects real biological differences between people. However, the evidence is clear that race is not a biological reality, but rather a social construction. We give meaning to race as a concept, it is reflected in our history, and it is given importance in our current daily interactions (Wonders, 2009 [Chapter 2]; Ore, 2008). As Wonders (Chapter 2) contends, “the construction of difference reflects a historical process of human interaction and negotiation” (p. 13). As we examine the importance of race in understanding the current experience of African Americans within the criminal justice system, it is impossible not to consider the historical conceptualization of race in the legal context. Finally, it is important to recognize that “who others ‘think’” we are may matter more than who we “really are” (Wonders, 2009 [Chapter 2, p. 13]). If this is true, then the stereotypes and assumptions about African Americans and beliefs about how they are “different” from whites cannot help but have a profound impact on the type of “justice” they experience. The remainder of this chapter will focus on both historical and current justice policies and practices that, whether as a legacy or by design, have created a complex and challenging relationship between African Americans and the criminal justice system. The chapter examines how policy, practice, and other social factors have impacted the experiences of African Americans as both victims and offenders. Finally, the chapter concludes with hope examining recent changes in policy and practice, the impacts of community policing and community coalitions, and a growing recognition that Black Lives Matter.

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Justice Policy and Practice: Criminalizing African Americans As we explore the significance of race for African-American men and women, boys and girls, within the context of the criminal justice system, it is necessary to examine the role of law. In some cases, law has been used as a tool to blatantly deny rights to millions of citizens, based solely on the color of their skin. Today, the law still often plays a role in existing racial disparities, though as Levinson and Smith (2012) argue the legal system is sometimes unwittingly, rather than blatantly, complicit. Historical Legal Context

Undeniably, it is difficult to evaluate current legal issues without having a basic understanding of the historical legal climate for African Americans. Since their arrival in the colonies, justice policies and practices have created and enforced racial oppression. Though there exists a complex and complicated historical relationship between African Americans and the criminal justice system, it is also important to recognize how the legacy of the policies and practices continue to have an impact today. While most white immigrants came to North America voluntarily, most Africans had no choice. By the mid-1600s, slavery in America had been fully institutionalized into law. Slavery is generally considered to be the first legal violation of the human rights of Africans/African Americans in America (Feagin & Feagin, 2012). The earliest justice policies and practices designed to blatantly deny rights to millions of citizens were the creation of the “slave codes.” From 1619 until the start of reconstruction in roughly 1865, the “slave codes” were generally codified by state law to allow both plantation owners and police the ability to control the behaviors of blacks and to exclude them from participating in American life (Smith, 2009). As early as 1740, the South Carolina Slave Code articulated that slaves were property and that power to subjugate or ensure obedience should not be limited by the law (Urbina & Alvarez, 2015). In fact, early police organizations were specifically required to enforce slave codes (and later Jim Crow laws), thus tying the early subjugation of blacks to both justice policy makers and practitioners (Alexander, 2010). Feagin and Feagin (2012) further demonstrate that the legal exclusion of African Americans from American life was further codified by the unwillingness of the Constitutional framers to include African Americans in all but three sections of the U.S. Constitution. These three sections designated their status as three-fifths of a person, and protected slave holders through the fugitive slave and slave importation provisions were to have a further negative impact on the quality of African-American lives, specifically their victimization at the hands of both slave owners and law enforcement, and their legal right to challenge their status for years to come. While slave codes were designed to ensure social control over blacks in virtually every area of life, Jim Crow laws (1887– 1965) were created in the aftermath of legal decisions granting rights to African Americans. These Jim Crow laws protected the institutional discrimination, thus continuing their exclusion. Furthermore, during Jim Crow, African Americans were frequently victimized by white terrorists. At worst, white officers were participants in the terrorizing of African-American citizens, and at best complacent observers failing to protect them from their attackers (Walker, 1998). The first major legal breaks for African Americans came at the end of the Civil War. The 1866 Civil Rights Act, and the 13th, 14th, and 15th Amendments to the Constitution, ended slavery, gave protection to blacks from state actions that would deny them civil rights, and guaranteed black men (but not women) the right to vote. Though the Civil War was the official end of slavery and the legalized denial of civil rights, the emancipation was really just a new era in their legal fight. Jim Crow laws were passed by many states, along with other more informal practices that sanctioned African Americans for trying to fully participate in American life. Such Jim Crow laws allowed states to



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practice a wide range of exclusionary or segregationist policies preventing blacks from attending white schools, moving into white neighborhoods, and competing for white jobs. As with the slave codes, law enforcement was responsible for putting the law into practice, protecting white ­privilege through the denial of rights to African Americans. In general, Jim Crow laws can be viewed as a large-scale set of justice policies that allowed for institutional discrimination and segregation to take place. These justice policies and practices continued to deny blacks the right to vote, allowed for various forms of job and educational discrimination, and worked to restrict the ability of African Americans to move or assemble freely. In effect, Jim Crow laws were passed and carried out by various legal and criminal justice institutions, and effectively excluded African Americans from full ­participation in American life (Feagin & Feagin, 2012; Smith, 2009; Urbina & Alvarez, 2015). The period of “Jim Crow” lasted until the Civil Rights Movement began. Most Supreme Court decisions before the 1930s reinforced the Jim Crow laws that allowed for segregation in schools, transportation, and the jury system. Perhaps most infamous was the Court’s ruling in the 1896 case of Plessy v. Ferguson, which asserted the principle of “separate but equal.” However, in 1954 a pivotal legal victory occurred when the Supreme Court reversed the Plessy decision, ruling in Brown v. Board of Education of Topeka that the idea of “separate but equal” had no place in the American educational system (Feagin & Feagin, 2012). Over the next decade, several justice policies were passed in hopes of securing greater protection for African Americans. The Civil Rights Acts of 1964 and 1968, and the Voting Rights Act of 1965, were intended to expand protection from discrimination in housing, employment, and voting. While the role of law enforcement agencies in enforcing both “slave codes” and Jim Crow laws was clear, their role in protecting African-American rights was less defined and clearly complicated by their often active role in protecting “white rights” during the Civil Rights Movement. Contemporary Context (Post-Civil Rights Era)

In the decades that followed, progress was often stymied. Though the Equal Employment Opportunity Commission (EEOC) was created to enforce sections of the 1964 Civil Rights Act, and played a significant role in fighting institutional employment discrimination in the 1970s and early 1980s, the agency became much less active in attacking racial discrimination in the 1980s and 1990s. During the Reagan years, funding for civil rights enforcement agencies was cut. The result was a significant reduction in compliance reviews, formal investigations, and class-action suits. During the Presidential administration of G. H. W. Bush, the change in the composition of the Supreme Court led to decisions that limited the right of discrimination victims to sue and Bush himself fought the Civil Rights Act of 1991. The short-lived time of justice policies aimed at eradicating years of injustices came to a halt. In recent years, the legal focus has been more attentive to the impact of criminal law on African Americans (Feagin & Feagin, 2012). Though individually these may seem like benign events, the cumulative impact has been significant. While blatant discrimination is declining, it is now becoming more understood that implicit racial bias within the criminal justice system has had a significant negative impact on the lives and freedom of African Americans (Levinson & Smith, 2012). Similar to the discussion of microaggressions in Chapter 3, implicit biases significantly affect how people, particularly marginalized communities, experience the justice system. As Wacquant (2001) reports in the 50-year period from the middle to the end of the last century, there was a complete reversal in arrest, prosecuting, and imprisonment rates, from 70% white to 70% black and Latino, though patterns of ethnic criminal activity have not fundamentally changed (as cited in Urbina & Alvarez, 2015). The next section will examine several specific justice policies and practices that helped to create the dramatic shift.

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Even in the post-Civil Rights era, African Americans continue to face disparate treatment at the hands of those whose job was to protect them. As Smith (2009) discussed in an earlier edition of this book, the institutional focus of our legal and criminal justice system functions to create racial disparities. The government commissioned Kerner Report summed it up in this way: white institutions created the ghettos, white institutions maintained them, and white society condoned them (Kerner, 1968). Those with power and privilege have the power to define crimes, and the most heavily penalized crimes tend to be those committed by the poor and/or racial minorities. The “get tough” policies, which began in the 1980s, dramatically increased the already existing racial disparities within the U.S. prison system. The “War on Drugs”

The “War on Drugs” has had a particularly devastating impact on the lives of African Americans. Though some have suggested that the “War on Drugs” is a race-neutral policy, numerous studies on racial profiling demonstrate that the “War on Drugs” has largely been a war on minorities (Cole, 1999). Alexander (2010) argues that the “War on Drugs” more than any other criminal justice initiative has dramatically impacted the existing racial disparities in arrests and imprisonment. To demonstrate this point, Fellner (2009) found that in America’s largest cities African Americans were arrested on drug charges at three times the rate for whites. King and Mauer (2002) found that nearly four out of five incarcerated drug offenders are African American, a rate that far exceeds their rates of drug use. Finally, despite claims about the goals of the “War on Drugs” between 1990 and 2002, 82% of arrests were for marijuana offenses, and more than half of those in prison had neither a history of violent offenses nor high-level drug activity. While the “War on Drugs” has disproportionately impacted minorities, it is important to recognize that numerous studies have shown that African Americans are not more frequent drug users (McCabe et al., 2007; Substance Abuse and Mental Health Services Administration, 2013; Walker, Spohn, & DeLone, 2007). Self-reports demonstrate that whites use drugs as much as, or more than, African Americans or other minorities. A 2013 article in the Huffington Post summarizing data from a 2011 report published by the Substance Abuse and Mental Health Services Administration reported that 20% of whites and 10% of African Americans have tried cocaine. The report also concluded that use of marijuana, heroin, OxyContin, methamphetamines, and hallucinogens was higher among whites. The data concluded that when asked about lifetime use of illicit drugs, 51.6% of whites and 46.5% of African Americans admitted such drug use. In another study, when drug abuse on college campuses was studied, the authors concluded that drug abuse in historically black colleges and universities (HBCU) is lower than on nonHBCU campuses. Self-reports from college students participating in the study revealed that among both men and women, the use of substances tended to be higher for Hispanic and white students than for Asian or African-American students (McCabe et al., 2007). If drug use is essentially equal or even higher among whites, then it is difficult to conclude anything other than that African Americans have been victimized by the “War on Drugs.” The “War on Drugs” encompasses a number of both legislative and policing policies and practices. In 1986, the U.S. Congress passed a law that created a 100 to 1 sentencing disparity between use or trafficking of crack, generally considered to be more prevalent in black communities, and the trafficking of cocaine, more prevalent in white communities. From 1986 until the Fair Sentencing Act of 2010, those in possession of just 5 grams of crack received a five-year sentence, while a similar sentence would require possession of 500 grams of cocaine. The 1986 law was strongly criticized for the disproportional impact the sentencing practices had on African Americans and Latinos. This distinction institutionalized racial discrimination. According to the ACLU, under the 100:1 regime, African Americans served virtually as much time in



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prison for nonviolent drug offenses as whites did for violent offenses. Following the passage of the Fair Sentencing Act in 2010, the existing 100:1 disparity was reduced to 18:1 (United States Sentencing Commission, 2010). One direct benefit of the policy change is that about 12,000 people (85% of whom are African American) were eligible to have their case reviewed for a possible sentence reduction. Of those, approximately 7,700 received some sentencing reduction. Though this was not the only change, it was perhaps the most significant. While the Fair Sentencing Act of 2010 worked to address some racial disparities, states passed further “War on Drug” laws that negatively impacted poor and minority communities. Two such state-level policies, “stop and frisk” in New York City and three-strikes laws passed in California and other states, also led to a dramatic increase in the incarceration of African Americans for drug-related offenses. According to a Human Rights Watch report published in 2010, the result of these policies was that nationwide African Americans were sent to prison 13 times more often than other racial groups. In an analysis of three countries, Warde (2013) found that the “War on Drugs” and the policing tactics associated with those policies resulted in an increasing and disproportionate rate of incarceration for blacks in the United States, England, and Canada. Institutionalized discrimination occurs at every stage of the criminal justice process. Harris (2003) argues that, “police can [and do] use color as evidence of criminal involvement, even without any other evidence that points in that direction. This means, in clear and unequivocal terms, that skin color itself has been criminalized” (as cited in Urbina & Alvarez, 2015, p. 19). Smith (2009) discussed the institutional discrimination that occurs at the bail and arrest stages. As previously noted, practices that are seemingly “race neutral” are not neutral in their outcomes. For example, using the criteria of “community ties” can significantly hamper the likelihood that African Americans will be granted bail, or be able to come up with the bail when granted (Smith, 2009). Bail is often tied to employment and homeownership. Unfortunately, African Americans are less likely than their white counterparts to own a home, 50% versus 75% (Levinson & Smith, 2012), and over the last 60 years remain twice as likely to be unemployed (Pew Research Center, 2014b). Furthermore, demeanor may also seem like a “race-neutral” criterion, but, given the long history of discrimination at the hands of the criminal justice system, it is not surprising that African Americans may have a more negative demeanor when approached by police (Smith, 2009). In a recent survey of police officers, more than 50% of officers reported that negative demeanor impacted the outcome of the encounter (Brunson, 2007). These types of criteria do not take into consideration a history of oppression or tensions based on more current events, and therefore are not race neutral. Instead, they lead to disparate outcomes in arrest, detainment, and incarceration for African Americans. Policing Practices

While the research clearly demonstrates the historical role of justice policy makers and practitioners in suppressing the efforts of minority groups to mobilize and secure equal rights, it is perhaps even more important to examine how current policies and practices continue to impact African Americans and their relationship with the criminal justice system. Photographs of the Civil Rights Movement show law enforcement and military personnel in armed resistance of those fighting for equal access and the right to be heard; photographs from Ferguson and Baltimore clearly illustrate that protestors were met by heavily armed, militarized police. Residents of communities like Ferguson and Baltimore argue that the police often decline to protect their basic human rights, and are often the source of human rights violations. Policing practices that involve both the over- and underpolicing of minority neighborhoods represent both the overemphasis on the persona of the black male

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criminal and their lack of interest in broader neighborhood safety concerns (Alexander, 2010; Barlow & Barlow, 2000; Urbina & Alvarez, 2015; Walker, 1998). Policing Practices Related to Offending Rates

In this section, two specific issues related to policing practices will be reviewed. The first is the relationship between both real and perceived discriminatory police practices and African-American arrest and incarceration rates. The second, closely related issue is the increased militarization of police forces over the last several decades. As presented in this chapter, the relationship between perceptions of injustices perpetrated by the criminal justice system and offending is fairly well established. The social forces, including racial discrimination, that create racially segregated “ghettos” where African Americans disproportionately live (compared to other poor people) increase their likelihood of experiencing injustices at the hands of the criminal justice system. Specifically, these are communities where police are more likely to use harassment, verbal aggression, and excessive or coercive force and where brutality is not an uncommon element of the interactions between police and African-American residents (Gau & Brunson, 2010; Massey & Denton, 1993; Unnever & Gabbidon, 2011). It is important to note that it is not just perceived injustice at the hands of criminal justice professionals, but the actual existence of differential treatment that is occurring. However, the overwhelming majority of white Americans believe that the criminal justice system is not biased against African Americans (Unnever, Gabbidon, & Higgins, 2011), and believe that neither police nor court bias is a major predictor of AfricanAmerican incarceration rates (Unnever, 2008). Numerous studies demonstrated that African Americans are more likely to be stopped, frisked, searched, and arrested, controlling for numerous other factors. Seeking to understand the phenomenon known as “driving while black,” Meeks (2000) analyzed data from the Maryland State Police in the 1990s, determining that roughly 75% of drivers stopped and searched were African American. In further analysis, it was also concluded that African Americans had no higher likelihood of being in possession of drugs than did white drivers. Unfortunately, because African-American drivers were stopped at such disparate rates (700:100), arrest statistics give the appearance of greater offending on the part of African Americans (Meeks, 2000). Ayres and Borowsky (2008) analyzed over 800,000 field reports completed by the Los Angeles Police Department during 2003–2004. Their findings clearly demonstrate that police behaviors differentially target African Americans. These police activities directly contribute to the disparities in arrests and incarceration. Their review of the data shows disparities at every stage of police encounters. Black stop rates were considerably higher than white stop rates (per 10,000 residents), accounting for more than 3,400 additional stops. When stopped, blacks were 127% more likely to be frisked, and 76% more likely to experience searches. These differential experiences with police led to a 28% higher arrest rate (Ayres & Borowsky, 2008). Finally, in Floyd v. City of New York (2013), U.S. District Judge Scheindlin ruled that members of the New York City Police Department were violating the Constitution by targeting minorities with unreasonable stop-and-frisk tactics. In reviewing more than 4.4 million stops over an eight-year period, the judge found that 52% of stop-and-frisk suspects were African American, 31% were Latino, and only 10% were white. What was even more interesting than that their proportion far exceeded their percentage of population was the results of those stops. Weapons were seized in 1% of stops of blacks, 1.1% of Latinos, and 1.4% of whites. Other contraband was seized in 1.8% of stops involving blacks, 1.7% of Latino stops-and-frisks, and 2.3% of white searches. These data suggest that African Americans are victimized by unfair policing practices, despite not being the most likely suspect/offender. These findings are consistent with other



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studies of police stops, all of which concluded that minorities represented the vast majority of stops, but not the vast majority of violators (Alexander, 2012; Meeks, 2000). Returning to the previous example of Ferguson for a moment, Cheney-Rice reports that in 2013, African Americans account for 65% of the population, 86% of traffic stops, 92% of searches, and 93% of arrests. African Americans were twice as likely as whites to be arrested, if stopped by police, despite the fact that contraband was found on whites 34% of the time versus only 22% of the time for African Americans (as cited in Urbina & Alvarez, 2015). Unfortunately, because African Americans are stopped at such disparate rates, arrest statistics give the appearance of greater offending on the part of African Americans (Ayres & Borowsky, 2008; Meeks, 2002), and lead most whites to believe that the disparities in criminal justice outcomes are a direct reflection of participation in criminal activity, even though the data do not demonstrate this to be true. The militarization of the police has become the subject of increased interest by both the media and scholars over the last several years. McKay (2014) notes that the police are increasingly more equipped for combat than for the “protect and serve” model of policing often equated with American policing. Urbina and Alvarez (2015) note that in recent years equipment returning from Iraq and Afghanistan have increasingly made their way into police departments, transforming the police culture from a public safety model to a public war model. This shift virtually guarantees that aggressive tactics will (more likely) be launched against inner-city minority neighborhoods irrespective of whether they are necessary or not (Giroux, 2013, as cited in Urbina & Alvarez, 2015). Perhaps not surprisingly, SWAT raids increased from 3,000 to 50,000 in the roughly 25-year period, between 1980 and 2015. Black communities were disproportionately the targets of those raids. This increase might be seen as particularly surprising given that crime rates have generally declined during that same time period (McKay, 2014; Urbina & Alvarez, 2015). Overpolicing, in the form of more focused attention to high minority concentration areas, increased verbal harassment, and use of force, leads to increased conflicts upon contact, increased likelihood of arrest upon contact, and, in recent years, death. The consequences associated with these practices impact individual African Americans suspected of offending, entire African-American communities, and society at large (Urbina & Alvarez, 2015). These consequences can be clearly seen as they have manifested themselves across the country in New York, Miami, Cincinnati, Ferguson, and Baltimore. According to data collected by the Pew Research Center (2014a), 84% of African Americans versus 37% of whites feel that the shooting of Michael Brown raises important issues about race, and 65% versus 33% believe the shooting went too far.

African Americans as Offenders In this section, we will discuss African Americans as both real and imagined offenders. While it is clear that African Americans are overrepresented both in crime-related media coverage and in crime statistics, the reasons for this are more complex than often discussed. As illustrated earlier in this chapter, measuring offending is complicated by the fact that for many people, both in and out of the criminal justice system, being young, black, and male is synonymous with crime, and our justice policies and our police practices and resources are aligned with this belief. In repeated studies, white Americans are more likely to perceive or report the race of an offender to be black, even when that is contrary to reality. Such perceptions have negatively impacted African Americans’ ability to receive fair treatment within the criminal justice system by police, prosecutors, and juries. In this section, we will review theories of offending, examine statistical trends for criminal offending, and evaluate the roles stereotypes and discrimination play in the behavioral choices of African Americans and in the treatment of African Americans.

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Understanding African-American Offending

Statistics for offending do not represent the true rate of criminal activity within a community, or by a group, but rather are a reflection of (1) the power and privilege of dominant groups to criminalize the behaviors of racial minorities, particularly African Americans, (2) the overpolicing of poor, minority communities, especially the activities of young, black males, and (3) the acceptance of stereotypes about the criminality of African-American males that increases the likelihood that contact with the criminal justice system leads to arrest and incarceration. Unnever and Gabbidon (2011) suggest that arrest statistics compiled by the FBI (data included in the UCR for example) should be evaluated with caution and recognition that they reflect both historic and contemporary problems in the relationship between African Americans and the criminal justice system. Furthermore, failing to consider these issues when examining data on offending and/or incarceration often leads to reinforcing the problematic relationship between communities and the criminal justice system. Russell (1992) encourages any examination of African-American offending to closely examine the relationship between the treatment of African Americans and the internalization of maltreatment, specifically how internalization might lead to offending. In the sections that follow, arrest data collected by the FBI is presented along with empirical and theoretical research on African-American offending. Theories  More recently, scholars have tried to articulate a theory of AfricanAmerican offending that synthesizes many elements of the existing theories, while also recognizing several new elements (Oliver, 2006; Unnever & Gabbidon, 2011). Unnever and Gabbidon focus on a unique (peerless) world view that is shaped by factors outside of the offender’s control and the belief that defines this shared world view, namely that “. . . the United States has been and continues to be a systematically racist society” (p. 27). They argue that the personal and shared realities of both blatant and subtle racism may be a trigger that could increase the likelihood of engaging in behaviors that lead to offending when other conditions are met (Unnever & Gabbidon, 2011). Oliver (2006) argues that weak social bonds (as first identified in Hirschi’s social control theory), combined with intense negative emotional responses to real and/or perceived racial discrimination, increase the likelihood of offending. Oliver (2006) further argues that offending may occur as a result of rebellion, innovation, or retreating (classic Merton’s strain theory). It is argued that this is not a unique response on the part of African Americans, but a natural response when the means to achieving goals are blocked (in this case by racial oppression). Unnever and Gabbidon (2011) argue that both racial discrimination and stereotype threats serve to weaken African-American youth’s bonds to school and other positive social institutions, increasing their risk of internalizing stereotypes, engaging in “street” culture (Merton’s rebellion) as a means of gaining acceptance and validation, and interacting with others who have a shared negative experience with schools, police, and other white-dominated institutions. Location further complicates this relationship (classic social disorganization theory, see Park & Burgess). For example, living in socially disorganized neighborhoods, lacking in collective efficacy, with restricted access to legitimate means for achieving goals, and patrolled more heavily by police, would produce just the kind of trigger that could increase the likelihood of offending and, because of heightened police presence, of getting caught. While theories may help us understand behavioral choices by African Americans, community residents, and criminal justice professionals, emerging research focuses specifically on understanding parental responses and public perceptions related to juvenile offending. Analyzing information from The Washington Post, Henry J. Kaiser Family Foundation, and Harvard University 2006 African American Survey, Unnever



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(2008) found that African Americans are more likely than whites to believe that black male imprisonment is related to both factors within their control (parental failings) and factors they cannot control (racism, discrimination within the criminal justice system). Researchers find that African-American youth who have parents that provide racial socialization that includes a “toolkit” for dealing with racism are less likely to offend. Brunson and Weitzer (2009) found that African-American parents in their study almost universally taught survival strategies that emphasized respect and physical passivity (keeping hands visible, making no sudden movements, not reaching for anything or running, etc.), in order to promote safe outcomes for their children. Findings also suggest that racial socialization that includes recognizing and resisting racism and problem-solving skills leads to fewer behavioral issues being reported. Finally, parents generally monitor girls more closely than boys, and emphasize preparation for negative stereotypes and distrust of whites when socializing boys. These differences in gender socialization can impact differential offending for African-American boys and girls (Brown, Linver, & Evans, 2010; Brunson & Weitzer, 2009; Nicolas, Helms, Jernigan, Sass, Skrzypek, & DeSilva, 2008). An examination of gender differences for both adult and juvenile offending is the focus of the next section. Data on African-American Offending

Considering the variables identified in the previous section (weak social bonds, lack of support, negative experiences with justice system or other white institutions, strong prevailing negative stereotypes, and residing in low-income, racially segregated communities), Unnever and Gabbidon (2011) argue that it is not surprising that AfricanAmerican men have higher measurable rates of offending (by arrests and incarceration) than do African-American women or poor whites. In 2013, the last year for which the FBI published the “Crimes in the United States” report, African Americans were roughly twice as likely as their percentage of population to be arrested (27.6% versus 13.2%). While the American public generally perceives that the black male has higher criminality (than whites) in virtually all crime categories, this is not entirely accurate. Arrests of African Americans are particularly high for manslaughter/murder and robbery, and generally, their arrests rates do exceed their percentage of the population in most categories measured. However, whites represent a higher percentage of arrests in virtually every other arrest category. Examining Table 42 of the 2013 Crime in the United States report, in many categories white arrests represent at least their percentage of the population, and in certain categories they represent the overwhelming majority of all arrests (represented 70% or higher arrests for arson, DUI and public drunkenness, sexual offense arrests, and vandalism). According to King and Mauer (2002), during the “War on Drugs,” four-fifths of drug prisoners were African American. Furthermore, their analysis of data from 1990 to 2002 demonstrates that 82% of the increase in drug arrests was for marijuana offenses, and the largest number of arrests were for possession. As previously noted, half of the people in prison for drug offenses have no history of violence or high-level drug activity. These facts largely contradict the stated goals of the “War on Drugs” and public beliefs about African-Americans offending. Alexander (2010) argues that the “War on Drugs” more than any other law and order policy has contributed to the significant racial disparities in arrests and imprisonment. When examining incarceration rates, the disparity becomes even more staggering. According to 2013 data published by the Bureau of Justice Statistics, AfricanAmerican men represent 37% of the prison population. Black men represent roughly 6% of the population; thus, the staggering disparity helps to demonstrate Alexander’s (2010) argument that the mass incarceration of African Americans has effectively maintained the legacy of racial subordination for this racial group.

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While the prevailing image of crime is associated with black male crime, ­disparities in contact, treatment, and outcomes also exist for African-American women. Their dually marginalized status as women and as persons of color offers African-American women few of the protections offered to white women. In 2013, African-American women ­represented 22% of the female prison population, while white women made up 49% (BJS, 2014). While on first glance these statistics might lead a reader to believe that white women are at higher risk for incarceration, rates of incarceration for African-American women are roughly two times those for white women (113 per 100,000 versus 51 per 100,000). Their representation in the prison population also reflects a presence that is roughly three times more than their percentage of population (roughly 7%). The higher rate of incarceration for both black men and black women comes at a high social cost. Hattery and Smith (2014) use the term “collateral damage” to describe the impacts of incarceration experienced by families and communities in the wake of years of mass incarceration policies. African-American boys and girls are more likely to be punished for deviant behavior, both within the school system and in the criminal justice system. Data regularly show the disparities in definitions of deviance and of what is deemed appropriate punishment for African-American and white children. These disparities produce dramatically different realities for African-American youth. In one study examining the disciplinary practices within the Denver school system, researchers found that AfricanAmerican students were 70% more likely to be disciplined than white students (Urbina & Alvarez, 2015), even when controlling for behavioral infractions. In data collected by the U.S. Department of Education Office for Civil Rights (2014), the disparities are even more alarming. African-American preschool children account for roughly half of the children suspended more than one time, despite accounting for only 18% of enrolled preschoolers. Across all grade levels, African-American students are three times more likely to be expelled or suspended. African-American girls have higher rates of suspension and expulsion than girls of any other race and most boys, though not African-American boys. Like their male counterparts, African-American girls are perceived as threatening and criminalized in a way white girls are not. This was particularly evident in the recent Texas “pool party incident,” which included a white officer physically assaulting a young African-American female and pointing his gun at several black teenagers. Finally, while African-American students represent just 16% of the student population, they represent 31% of those students subjected to a school-related arrest (U.S. Department of Education Office for Civil Rights, 2014). Not unlike the punishment disparities found in the school system, AfricanAmerican youth also encounter differential treatment in the broader criminal justice system. Examining data collected on Disproportionate Minority Contact (DMC), Urbina and Alvarez (2015) found that between 2006 and 2012, African-American youth in Weber County, Utah, were 3.2 times more likely than white youth to be arrested. During the same time period in Denver, black youth were 3.4 times more likely to be arrested. In Dona County, New Mexico, and El Paso, Texas, the disparity between African-American and white youth was significantly smaller, at 1.1 and 1.4 times, respectively (Urbina & Alvarez, 2015). Using DMC data from three cities, Huizinga, Thornberry, Knight, and Lovegrove (2007) investigated both offending behavior and risk factors associated with contact/ referral. These two factors, usually used to explain disproportionate contact with law enforcement, provide information important to understanding the statistics associated with African-American offending. Their study found that disproportionate contact existed, that differential offending behavior could not explain the disproportionate contact, and that risk factors did reduce (but not eliminate) race differences. Given that differences in offending behavior are generally used to explain disparities in criminal justice outcomes, these findings are particularly worth noting. Finally, and with

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Understanding the Importance of Intersectionality as it Relates to the Punishment Strategies Applied to Young, African American Girl Stephani Williams Crenshaw (1991) is generally considered to be the originator of the term intersectionality. The concept is meant to convey the unique position of black woman and girls (though it has been extended to cover other women of color) as being oppressed and subordinated based on their status as both women and people of color. Several scholars have argued that because both women and girls of color experience life differently than do white women, men of color, or white men, criminological studies that use a male-oriented or a white-oriented lens will fail to understand both the lived victimization and the offending patterns of girls and women of color (Joseph, 2006; Potter, 2008; Potter, 2015; Russell-Brown, 2004). The importance of this intersectionality becomes apparent when studying the punishment patterns of young, African-American girls after being sexually victimized within the U.S. school system. According to the National Black Women’s Health Project, 40% of black women reported coercive contact of a sexual nature by the age of 18. Another survey found that 60% of African-American girls reported experiencing some form of sexual victimization before they turned 18 (Starr, 2011). The American Association of University Women funded the first analysis of school-based sexual harassment; in these two studies, researchers found that gendered violence, and particularly sexual harassment, was prevalent in our school systems (1993, 2001). While these findings are alarming in and of themselves, what is more alarming is the response of schools to the unwanted sexual harassment and assaults that take place within the educational context. Research shows that teachers and administrators often fail to respond to the sexual victimization of young, black girls. In part, the lack of response is based on biases and acceptance of stereotypes, including those related to the perceived sexual and physical aggressiveness of black girls and women. These stereotypes then suggest that black girls are largely responsible or blamed, and are therefore “unworthy victims.” Stein (1995) found that teachers and administrators were more likely to identify the behaviors of boys as playful, age- and gender- appropriate behaviors, but perceive the behavior of the girls as overreactive, defensive, aggressive, and worthy of punishment. These responses are inconsistent with the responses that white girls receive when they voice concerns about sexual victimization. Interestingly, young, African-American girls are more likely to report victimization to school officials in an attempt to resolve the situation (Tonnesen, 2013). Unfortunately, when their requests for help are ignored, African-American girls are more likely to take the situation into their own hands. Overworked and underpaid school staff members have increasingly turned to the police to handle many

forms of discipline on their school campuses. As a result of “zero-tolerance” policies, young, black girls are often suspended, expelled, and/or arrested when they defend themselves against unwanted sexual advances. The fact that African-American girls face punishment in the aftermath of their sexual victimization is a critical failure of the education system. Title IX is meant to protect students both from the gendered violence they experience and from being punished for reporting it or defending themselves against it. Title IX states that a student is to be protected from a hostile school environment that prevents a student from taking full advantage of the educational opportunities because of sexual discrimination and/or sexual harassment. This includes all acts that are hostile, intimidating, and offensive, and interfere with a victim’s schoolwork. It is clear that teachers and school administrators are not protecting young, African-American girls from gendered violence, including victimization of a sexual nature. In addition to failing to protect these students, black girls are being punished, in ways and at rates not consistent with the response received by white girls. For these students, the intersection of their race, gender, and age results in sexual victimization, and additional humiliation and psychological victimization at the hands of those who are meant to serve as protectors. References American Association of University Women (AAUW). (1993). Hostile hallways: The AAUW survey on sexual harassment in America’s schools. Washington, DC: Author. American Association of University Women (AAUW). (2001). Hostile hallways: Bullying, teasing, and sexual harassment in school. Washington, DC: Author. Crenshaw, K. (1991) Mapping the margins: Intersectionality, identity, politics, & violence against women of color. Stanford Law Review, 43(6), 1241–1299. Joseph, J. (2006). Intersectionality of race/ethnicity, class, and justice: Women of color. In A. V. Merlo & J. M. Pollock (Eds.), Women, law, and social control (2nd ed., pp. 292–312). Boston, MA: Allyn & Bacon. Potter, H. (2008). Battle cries: Black women and intimate partner abuse. New York: University Press. Potter, H. (2015). Intersectionality and criminology: Disrupting and revolutionizing studies of crime. New York: Routledge. Russell-Brown, K. (2004). Underground codes: Race, crime and related fires. New York: University Press. Starr, T. J. (2011). Study: More than half of black girls are sexually assaulted. NewsOne. Retrieved from www.newsone.com. Stein, N. (1995). Sexual harassment in school: The public performance of gendered violence. Harvard Educational Review, 65(2), 145–162. Tonnesen, S. (2013). “Hit it and quit it”: Responses to black girls’ victimization in school. Berkeley Journal of Gender, Law and Justice, 28(1), 1–29.

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particular emphasis on the fact that disparities in outcomes are not related to differential behavior, it may be somewhat surprising that African-American children are even more likely to be arrested than their adult counterparts, 34.4% versus 27.6% (Federal Bureau of Investigations, 2014a).

African-American Victimization This section will explore African-American victimization as it relates to violent nonracial victimization and, second, as it relates to hate crimes and other forms of interracial violence, and finally, victimization within their own communities. Violent Victimization

In 2013, the prevalence of violent crime victimization among African Americans was 1.3%, only 0.2% higher than for whites, and the same as the prevalence of victimization for Latinos (Truman & Langton, 2014). This statistic contradicts what Americans typically think they know about prevalence rates. The broad perception is that victimization rates are much higher for African Americans than for whites, but this is only true to a limited extent. While rates of victimization vary by year and crime, 2013 saw a decrease in victimization for African Americans resulting in statistically nonsignificant differences between the victimization rates of African Americans (25.1 per 1,000), whites (22.2 per 1,000), and Hispanics (24.8 per 1,000) (Bureau of Justice Statistics, 2014). Young, African-American males, particularly those from inner cities, do have much higher rates of victimization than their young, white, suburban male counterparts. However, it is important to note that this is a confluence of race, social class, and geography—not race alone. Though it was not widely reported, urban violence victimization rates decreased significantly in 2013 from 32.4 to 25.9 per 1,000 (Bureau of Justice Statistics, 2014). Because urban violence often involves intraracial events among young black and Latino males, the decrease in violent victimization in these geographic areas resulted in fewer African-American victims. For all racial groups, the likelihood of victimization generally decreases with age. Peak victimization typically occurs for those aged 18–24; this is generally true across racial groups. In 2013, estimates from the National Crime Victimization Survey (NCVS) shows that the rate of victimization for Americans aged 15–24 ranges from roughly 30% to 43% for whites and from 19% to 33% for African Americans (the NCVS breaks down several age categories in the 10-year range). Victimization rates for respondents aged 50–64 decrease substantially from the highs of youth, at 18.6 for whites and 17.7 for African Americans. For those over the age of 65, the rate of victimization was 3.3 for whites and 2.7 for African Americans (per 1,000 persons). As indicated, rates of victimization are actually lower for African Americans by the time they reach the age of 50. This comparison of victimization rates across multiple age groups provides a more comprehensive understanding than that often highlighted in research or the media. Hate Crime Victimization

Compared to other groups of difference, African Americans face the greatest victimization as a result of hate. The 1980s saw an increase in both the visibility of hate groups and an actual increase in hate crimes (Turpin-Petrosino, 2015). In 1985, Representative Biaggi (D-NY) declared that violence motivated by hate is a national problem and that we must look to our laws for remedies. More than a decade later, then New York Governor Cuomo argued that the law was the single most effective weapon against hate crimes (Jenness & Grattet, 1999). A few years later, in 2001, Attorney General John Ashcroft declared that, “Criminal acts of hate run counter to what is best



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in America, our belief in equality and freedom. The Department of Justice will aggressively investigate, prosecute, and punish criminal acts of violence and vigilantism motivated by hate and intolerance . . . hatred is the enemy of justice, regardless of its source” (U.S. Department of Justice, 2001 as cited in Jenness & Grattet, 2001, p. xiv). However, it was not the words of a politician that brought the hate crime concept to the forefront of American consciousness or of the criminal justice system. In perhaps one of the most media-covered hate crimes involving a black victim, the public consciousness was raised following the murder of James Byrd, Jr. in Jasper, Texas. Though the Texas prosecutor did not try the crime as a hate crime, public opinion overwhelmingly identified the man beaten and dragged behind a truck by whites until he died as having been the victim of a vicious hate crime. In 2013, the latest year for which data from the Uniform Crime Report (UCR) are available, race continues to be the most significant predictor of victimization. According to the UCR, there were 7,242 victims of hate crimes in 2013. Race accounted for almost 50% of hate crime victims, and African Americans were the victims in roughly two-thirds of those crimes (Federal Bureau of Investigations, 2014b). Yet, despite the passage of the Hate Crimes Statistics Act in 1990, the UCR continues to report only a small fraction of the actual victimization that occurs as a result of hate. The National Crime Victimization Survey (NCVS) has reported an average of 200,000–250,000 hate crime incidents per year, since 2000. The results of these surveys further show that racial bias has continually been the most significant motivating factor (54–63%), and that anti-black hate crime consistently represents the majority of those victimized (Turpin-Petrosino, 2015). In examining the trends between 1996 and 2012, African Americans have consistently been three to four times more likely to be a victim of a hate crime than any other racial group. Even in years where hate crime statistics show a spike in crimes against other groups, African Americans remain the most victimized group. For example, in 2001 crimes against Muslims spiked following the attacks of September 11 (to two to three times their victimization in other years). Despite this spike, in 2001, African Americans were still six and a half times more likely to be victimized. Though there was a general decline in hate crime victimization following its peak in 1996, the candidacy and election of Barack Obama led to a temporary spike in victimization rates (Cheng, Ickes, & Kenworthy, 2013; Federal Bureau of Investigations, 2014b Jenness & Grattet, 1999). Beyond their greater likelihood of being victims of a hate crime and unlike other groups victimized by hate crimes, when African Americans are victims of hate crimes the act is more likely to involve interpersonal violence rather than property crimes and intimidation (Cheng et al., 2013). A careful review of all of the data demonstrates that hate (or bias) crimes generally target members of historically disadvantaged groups. The result is an additive effect of past pains and current victimization (Turpin-Petrosino, 2015). Furthermore, Lyons (2007) has found that African Americans are most likely to be targeted for victimization when there is a perception of threat, such as in the election of Barack Obama, or as a result of residential mobility (see similar discussion of perceived threats in Chapter 16). Law enforcement responses to hate crime victimization play an important role in the ability for victims and communities to heal.

Innovation and Cooperation: Bridging the Police–Community Divide Given the challenging relationship between African Americans and the criminal justice system, it has long been argued that increased participation and representation of blacks as criminal justice professionals is an important part of improving these fractured relationships. Racial/ethnic communities have often called for increased

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representation as a response to incidents of brutality (Barlow & Barlow, 2000). Since the Civil Rights Movements, official commission reports (1968 National Advisory Commission on Civil Disorder, Kerner Commission) have articulated a clear and present need for increased representation of African-American and Latino officers, and increased efforts toward a more community-oriented policing model (Urbina & Alvarez, 2015). Since 1974, the National Association for Blacks in Criminal Justice has actively worked at recruiting blacks and other minorities to positions within the criminal justice system (The National Association of Blacks in Criminal Justice, 2012). Regardless of the source, the common belief has been that increased representation would lead to improved relationships between African-American communities and the criminal justice system (particularly the police). Conversely, a “lack of black officers, especially in communities with large African-American populations, has been cited frequently in the wake of police-involved deaths of black residents that sparked riots in cities from Ferguson, Mo., to Baltimore in the past year” (Kesling & McWhirter, 2015). A survey released by the Bureau of Justice Statistics in May 2015 indicates that black officers represent just 12% of local law enforcement professionals, a number that has been flat since 2007 and underrepresent their percentage of the population by 1%. While African Americans may be underrepresented, it is important to recognize that hiring is a necessary, but not sufficient condition for achieving the ideals of a representative democratic police force that could lead to significant improvement in these relationships. Contrary to the idea that increased representation of minority officers will help, some researchers argue that little impact is felt if the social disadvantage of the community is not addressed, and if the basic police structure and policing model remain unchanged (Brunson & Gau, 2015). In these situations, researchers have argued that it is more likely that newcomers (regardless of race) will try to gain acceptance, and that minority officers will feel pressure to conform to normative white male law enforcement standards (Barlow & Barlow, 2000; Urbina & Alvarez, 2015). Evidence of improvement in police–community relations as a result of increased representation of minority officers is generally mixed, but does provide direction for the future. Data from Donohue and Levitt (2001) found that an increase in minority officers had little impact on the arrest of non-whites (though interestingly it did increase the number of arrests for whites). Brunson and Gau (2015) found that perceptions of the police within a predominantly African-American community being policed by a predominantly African-American police force did not positively impact confidence in police. In their study, the impact of strained resources, understaffing, slow response times, and widespread political corruption counteracted any positive impact that increased racial representation within the police force might have had. Addressing these more structural issues must occur in conjunction with increased representation, if it is to elicit a positive community response. Similarly, Urbina and Alvarez (2015) found that the transparency of the department had the most profound impact on police– community relations, more so than just an increase in minority representation alone. One distinct advantage of increased diversification of a police force is that both citizen and officer reports of wrongdoing increased. The blue wall of silence is significantly penetrated when the police force represents people from various racial/ethnic backgrounds (Sklansky, 2006). Data also suggest that the use of technology, such as body cameras, has a more dramatic effect on reducing citizen complaints about use of force than did increased minority representation. In Rialto, California, complaints dropped by 88% and use of force decreased by 60% after 70 of its officers were required to wear body cameras. Similar success was achieved when officers in Chesapeake, Virginia, were also fitted with body cameras (Urbina & Alvarez, 2015). These findings suggest that economic and political factors, along with accountability through the use of technology, had more impact than just the diversification of their police force. This is a significant finding, because it has long been believed that increased racial



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representation alone could improve police–community relations. It now appears that increased representation is only effective if it occurs with more structural changes in department policy and practice. Though it appears that in many cases increasing the representation of African Americans to better reflect the community has not reduced the procedural injustices that occur, and therefore fail to achieve that legitimacy, representation remains a significant goal. Once representation is achieved, it is important that African-American officers feel like positive, contributing, and respected members of their departments. Such feelings of belonging are likely to then be transferred to police–community relations. Unfortunately, African-American officers report facing various types of discrimination with regularity. Discrimination may be faced at the administrative level, such as only being allowed to patrol black neighborhoods, or facing inequalities in evaluation, rewards, and discipline. Both African-American and Latino officers have reported perceiving fewer opportunities for promotion and desirable assignments (Skolnick & Fyfe, 1993; Stroshine & Brandl, 2011). African-American officers have also reported significant levels of individual level discrimination that include harassment, inappropriate comments, exclusion, and isolation (Skolnick & Fyfe, 1993; Stroshine & Brandl, 2011). African-American women appear to face not only all of the resistance that African-American males face, but also the resistance faced by white women. This resistance, which also appears in the form of open hostility, harassment, exclusion, and isolation, was identified by 90% of African-American women in one study (Price, 1996). Once again, it appears that structural changes beyond hiring and increasing representation are still barriers that limit the overall ability of African-American officers to make a difference, particularly with regard to improving relations between police and communities of color.

Conclusion In the wake of Ferguson and Baltimore, it is important for current and future criminal justice professionals to consider the complicated relationship between African Americans and the criminal justice system. If things are going to change, we must recognize that both historical and contemporary factors play a role in this fractured relationship. The legacy of racism and the enduring discrimination have resulted in a society that remains highly stratified by race. Residential segregation, unemployment, and poverty are still everyday realities for a disproportionate number of African Americans. Individuals residing in neighborhoods characterized by segregation and poverty are far more likely to also experience injustices at the hands of the criminal justice system. The research clearly shows a complicated relationship between real and perceived discrimination, injustices at the hands of the criminal justice system, and the emotional and behavioral choices that lead to African-American offending. When analyzing African-American offending, it is important to examine both the offending behaviors

and the factors that lead to an increased likelihood that offending will be detected and will result in arrest, prosecution, and incarceration. This pattern is particularly clear when examining drug-related offenses. African Americans generally show no higher rates of drug use/abuse than do whites, yet are dramatically overrepresented in drug arrests, prosecutions, and incarceration. As we consider ways to move forward, it is clear that there is no simple fix. Reducing rates of African-American victimization and offending will need to involve concentrated efforts to rebuild fractured relationships between the criminal justice system and African-American communities. Increased representation, greater transparency, and use of technology are only a few of the steps necessary to improve community relations. These steps should also lead to fewer complaints related to victimization at the hands of the police. Furthermore, since trust in the justice system and believing in the “justness” of laws are related to African-American offending, these same steps should also lead to a reduction in offending, arrests, and incarceration.

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Questions for Review 1. Explain the relationship between assumptions about difference and experiences with the criminal justice system. 2. Describe the role of early police organizations in the subjugation of African Americans. How might those early relationships continue to impact relation- ships between the police and African-American communities? 3. How was life different for African Americans during the years of the slave codes, Jim Crow, and during the early years of the Civil Rights Movement?

4. How did the Fair Sentencing Act of 2010 change the sentencing for crack cocaine offenders? 5. What does the data related to driving while black, stopand-frisk, and similar policies suggest about the effectiveness about such policies? 6. How can social control theory, strain theory, and social disorganization theory help us to understand AfricanAmerican offending? 7. What changes, in addition to increased representation of African-American officers, have been shown to improve police–community relations?

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Skolnick, J., & Fyfe, J. (1993). Above the law: Police and the excessive use of force. New York: Free Press. Smith, B. (2009). The significance of race: African Americans and the criminal justice system. In The Criminology and Criminal Justice Collective of Northern Arizona University, Investigating difference: Human and cultural relations in criminal justice (2nd ed., pp. 102–113). Upper Saddle River, NJ: Prentice Hall. Stroshine, M., & Brandl, S. (2011). Race, gender, and tokenism in policing: An empirical elaboration. Police Quarterly, 14, 344–365. Substance Abuse and Mental Health Services Administration. (2013). Results from the 2012 National Survey on Drug Use and Health: A summary of national findings. Retrieved from http://www.samhsa.gov/ d a t a / s i t e s / d e f a u l t / fi l e s / N S D U H r e s u l t s 2 0 1 2 / NSDUHresults2012.pdf. The National Association of Blacks in Criminal Justice. (2012). Retrieved from www.nabcj.org. Truman, J., & Langton, L. (2014). Criminal victimization, 2013. Retrieved from http://www.bjs.gov/content/pub/ pdf/cv13.pdf. Turpin-Petrosino, C. (2015). Understanding hate crimes: Acts motives, offenders, victims, and justice. New York: Routledge. Unnever, J. (2008). Two worlds far apart: Black–white differences in beliefs about why African American men are disproportionately imprisoned. Criminology, 46, 511–538. Unnever, J., & Gabbidon, S. (2011). A theory of African American offending: Race, racism, and crime. New York: Routledge. Unnever, J., Gabbidon, S., & Higgins, G. (2011). The election of Barack Obama and perceptions of criminal injustice. Justice Quarterly, 28, 23–45. Urbina, M. G., & Alvarez, S. E. (2015). Latino police officers in the United States: An examination of emerging trends and issues. Springfield, IL: Charles C. Thomas Publisher. U.S. Department of Education Office for Civil Rights. (2014). Civil rights data collection—school discipline. Retrieved from https://www2.ed.gov/about/offices/list/ ocr/docs/crdc-discipline-snapshot.pdf. U.S. Department of Justice. (2001). Attorney General Transcript, News Conference with USA John Brownlee, Indictment of Darrell David Rice. Retrieved from http://webcache.googleusercontent.com/search? q=cache:NDyWqS8Y3AIJ:cat.ocw.uci.edu/media/ W03/99012/AG_Transcript.doc+&cd=4&hl=en&ct= clnk&gl=us&client=safari. United States Sentencing Commission. (2010). Fair Sentencing Act Amendment. Retrieved from http:// www.ussc.gov/research-and-publications/federal- sentencing-statistics/fair-sentencing-act-amendment. Wacquant, K. (2001). Deadly symbiosis: When ghetto and prison meet and mesh. In D. Garland (Ed.), Mass

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incarceration: Social causes and consequences. London, UK: Sage Publications. Walker, S. (1998). Popular justice: A history of American criminal justice (2nd ed.). New York: Oxford University Press. Walker, S., Spohn, C., & DeLone, M. (2007). The color of justice: Race, ethnicity, and crime in America (4th ed.). Belmont, CA: Wadsworth. Warde, B. (2013). Black male disproportionality in the criminal justice systems of the USA, Canada, and

England: A comparative analysis of incarceration. Journal of African American Studies, 17(4), 461–479. Wonders, N. (2009). Conceptualizing difference. In The Criminology and Criminal Justice Collective of Northern Arizona University, Investigating difference: Human and cultural relations in criminal ­justice (2nd ed., pp. 10–22). Upper Saddle River, NJ: Prentice Hall.

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Aliens Within: Asian Americans and U.S. Legal and Criminal Justice System An Tuan Nguyen

Chapter Objectives • Identify the diversity of Asian migratory trajectories to the United States. • Discuss the nuance of exclusionary immigration policies that the United States imposed on specific ethnic groups of Asian immigrants. • Discuss Asian-American criminal history and how such a history resonates U.S. racial theories of Asian Americans as the dangerous “other.” • Discuss the role of Asian Americans in providing public services to the society and how such services are performed in a racially multifaceted society. In 1922, the U.S. Supreme Court ruled on the case of Takao Ozawa, denying his application of U.S. citizenship naturalization. An American-educated man who possessed good command of the English language and familiarity with American culture, had a wife raised in America and two American-born children, had no connection to the Japanese government, and worked for an American company, Ozawa was denied naturalization simply because he immigrated from Japan. Like tens of thousands of his Asian immigrant contemporaries, Ozawa was a victim of the discriminatory 1906 U.S. Naturalization Act that excluded all Asian immigrants from naturalization eligibility (The Senate and House of Representatives of the United States of America, 1906). Sixty years later, in Detroit, Michigan, two white automobile workers, Ronald Ebens and his stepson, Michael Nitz, beat a young Chinese American named Vincent Chin to death. Apparently misunderstanding Chin to be Japanese, the two p­ erpetrators accused him for the triumph of Japan over the American automobile industry in the 1980s. “It’s because of you motherfuckers we are out of work!” cursed the two, who also called Chin a “Jap,” during a bar fight that led to the murder hours later. Ebens and Nitz were only convicted with manslaughter with a fine of $3,780 each and three years’ ­probation. Neither of them had to spend a night in jail for the crime they had committed (Zia, 1912, pp. 38–39). These cases are vivid examples of rampant violence toward Asian Americans and a justice system that often favors whites over Asians. The case of Takao Ozawa v. United States (1922) and the murder of Vincent Chin are landmarks in the Asian-American experience with U.S. institutional racialization and criminal justice. However, they are far from being exceptional. In the history of Asian migration to the United States and the making of Asian America, people of Asian descent have been exposed to countless discriminatory and punitive laws and acts, passed and enacted by all levels of U.S. public administration. Such racialized experience ranges from entry denial, citizenship exclusion, social alienation and hostility, economic impediment, political disenfranchisement, and space segregation, to internment. More than one and a half centuries have passed since the first Asian immigrants set foot on American soil and the AsianAmerican community is on the way to becoming one-tenth of the nation’s population. 209

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However, in the eye of American public and justice system, Asian Americans are still considered, and many times, treated, as the aliens within.

“Strangers From a Different Shore”1: Asian Immigration to the United States Gold Mountain, Transcontinental Railroad, Sugar Plantations, and Agricultural Farms: Early Wave of Asian Migration, 1848 to 1930

Early Asian migration to America occurred over several decades between the late 1840s and the early 1930s. This migration was comprised of five groups of Japanese, Korean, East Indian, Filipino, and Chinese migrant workers, in which the last one was the earliest to appear on U.S. soil. Driven by economic turmoil and political upheavals in their own country, Chinese, mainly from Guangdong province, began to arrive in California when the territory became annexed into the United States in 1948. Lured by California’s Gold Rush, these Chinese forty-niners bought their tickets on credit and came to work, first in gold mines in 1949 (hence the term 49ers). After the demise of the rush, many more Chinese were recruited as track-layers, working for the Central Pacific Railroad Company on its transcontinental railway construction from 1863 to 1869. White discrimination later forced them to take up jobs such as launderers and cooks. They were also brought over to Hawaii to work on the islands’ booming sugar plantations. Chinese migrant workers also helped clear the vast landscape in California, turning the state into an important agricultural supplying center for the country. Between their first journeys in 1848 and their exclusion in 1882, some 370,000 Chinese workers—most of them male—arrived in California and Hawaii. Notwithstanding their first intention of being sojourners, many of them later decided to resettle in their host country. Under the Meiji Restoration of 1868, heavy taxation imposed on farmers to fuel the rapid industrialization in Japan also forced many of its citizens to leave the country. From the first several hundred Japanese coming to Hawaii in 1868, by 1910, U.S. immigration authorities reported approximately 400,000 Japanese entering the country via Hawaii, Guam, and Pacific Coast points of entry. Like their Chinese counterparts, they also worked mainly on plantations, vegetable fields, and orchards in the Pacific Islands and West Coast areas. Nearly a half of Japanese migrant workers chose to stay permanently in the United States. Within a decade between 1885 and 1894, for example, only 46% of migrant workers in America returned to Japan (Chan, 1991, p. 12). Although Hawaii and California were also common places of entry to them, the Koreans and the East Indians came to America later and in a much smaller number than the previous two groups. Leaving a country wrecked by the foreign wars between Japan and China (1894–1895) and Japan and Russia (1904–1905), a small constituency of 7,000 Koreans arrived in Hawaii as plantation workers between December 1902 and May 1905. Unlike the Japanese and Chinese migrants, most of them used to be laborers, former soldiers, and artisans, not farmers, and nearly half of them were Christian converts. After their emigration halted in 1905 when Korea was declared a Japanese protectorate, 5,000 Koreans resettled in Hawaii and 1,000 immigrated to the U.S. mainland (Chan, 1991, p. 15). The East Indians, mostly habitants of the Punjab area in northwestern India and ­followers of the Sikh faith, also arrived in the same amount of 7,000 migrants as the Koreans did. Being subjects of British colonization, and forced to leave the country by the colonial tax imposition, Punjabi Sikhs often ventured first to British 1 From the title of Ronald Takaki’s book Strangers from a Different Shore: A History of Asian Americans. Boston, MA: Little, Brown and Company, 1998.



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Columbia, Canada—another territory of the British Empire—searching for a better life. After being barred by the Canadian immigration law passed in 1908 that required Indian immigrants to possess $200 each, they turned to the United Sates as an alternative destination. This migratory trajectory ended in 1917 when U.S. law excluded Indian immigration. Most Indians resettled in California, working as farmers in places like the Imperial Valley. Filipino emigration in the early twentieth century remains a unique case. After the Philippines gained its independence from the Spanish colonists, the short-lived republic quickly fell under U.S. subjugation as a trophy of the American–Spanish War. Being American colonials thus enabled Filipinos to travel as U.S. nationals. Many Filipinos were recruited for Hawaiian plantations, from several hundred émigrés in 1907; by the 1930s, roughly 180,000 Filipinos had arrived in the United States. Many later dispersed in different states. On Hawaiian and California’s fields, they worked as farm workers. In the metropolises, they worked in menial services such as busboys and janitors. Some even headed to Alaska to look for jobs in cannery plants (Cordova, 1983). Similar to other Asian migrant groups, there was also a gender imbalance in Filipino immigration. In 1930, Filipina women accounted for less than 10% of the community of Filipino immigrants (U.S. Census, 1930). Immigrants with Human and Social Capital Versus War Refugees: Post-1965 Asian Migration

Decades after the earlier specific exclusionary acts that curtailed all people from Asia to enter America, the 1965 Immigration and Naturalization Act rendered possible the second wave of Asian immigration. For many Asian countries, the act allotted an annual quota of roughly 20,000 immigrants. The 1965 act signaled a tremendous increase in the Asian-American population: whereas in 1965 this population was only 1 million and accounted for 1% of the U.S. population, by 1985 it had multiplied to 5 million and become 2% of the total population (Takaki, 1998, p. 420). There were also significant changes in countries of origin and class statuses in the second wave in comparison to their predecessors. Unlike the earlier immigrants, the new immigrants mainly came from urban areas and many of them were professionals and entrepreneurs who brought human and social capital to the host country. Especially, the pursuit and completion of a U.S. education became a common venue for Asians to obtain their immigration status. Of the 300,000 foreign students in America in 1980, a half of them were from China and other Asian countries. For the Chinese, many stayed after completing their training and became San Yi Man or “new immigrants” in opposition to the Lo Wa Kiu or “old overseas Chinese.” Scientists, managers, technicians, and medical workers also flocked to the United States from Taiwan, Hong Kong, South Korea, and especially India. In 1966, 67% of Indian immigrants with status adjustment via employment were American university graduates and their dependents. This number became 77% in 1970 and 64% between 1975 and 1979 (Bhalla, 2006; Khadria, 1999; Sahoo, Sangha, & Kelly, 2010). Most Asian professional immigrants were successful in either bringing their family with them or eventually sponsoring their relatives’ immigration. Another crucial landmark in U.S. history of Asian immigration is the arrival of hundreds of thousands of people fleeing their war-torn countries. In the last two decades, the United States had admitted roughly 20,000 Afghans, 100,000 Burmese, and 100,000 Iraqis through various refugee projects. Notably, many of these refugees came from countries wrecked by U.S. political and military intervention. One significant case is refugees from the former French colonial territory of Indochina, which includes Vietnam, Laos, and Cambodia. The collapse of the American-backed

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South Vietnam in 1975 initiated the mass exodus of Indochinese in the decades that followed. Vietnamese émigrés entered the United States under different programs and at different periods of time, with hundreds of thousand people each in five different waves, including the 1975 “Indochinese Refugee Assistance Program” (130,000 refugees), the 1980 “boat people” movement (170,000 refugees), the 1987 “Amerasian Homecoming Act” (90,000 Amerasians and their family members), the 1989 “Special Released Re-Education Center Detainee Resettlement Program” (200,000 former political detainees), and the 1982 “Orderly Departure Program” (300,000 immigrants). The Indochinese refugee body was also joined by approximately 80,000 Lao, 60,000 Hmong, and 100,000 Khmer Cambodians (Chan, 2006; Haines, 1989; Monterol, 1979; Takaki, 2008; Viviani, 1984). Notwithstanding the government’s initial effort to disperse the Indochinese, many preferred California as resettlement location. Asian Americans now belong to the fastest growing minority in the United States. According to 2010 U.S. Census’s statistics, Americans who claimed themselves Asian American accounted for 4.8% of the population while others whose heritage combined Asian descent with one or more racial groups also comprised 5.6% of the population. The five biggest Asian groups were Chinese (22% of the total Asian-American body), Indian (20%), Filipino (18%), Vietnamese (11%), and Koreans (10%). Trailing behind were Japanese (5%) and a combination of Pakistanis, Hmong, Cambodians, and Lao (6%). In the same census, of more than 18 million Asian Americans, 19.8% lived in the Northeast, 11.9% in the Midwest, 22.1% in the South, and 46.2% in the West. Nearly three-fourths of them settled in 10 states, with 5.6 million in California, 1.6 million in New York, 1.1 million in Texas, 0.8 million each in New Jersey and Hawaii, 0.7 million in Illinois, 0.6 million each in Washington and Florida, 0.5 million in Virginia, and 0.4 million in Pennsylvania (Hoeffel, Restogi, Kim, & Shabid, 2012). Although Asian Americans now are dispersed in almost every community throughout the country, ethnic enclaves such as Little Saigons, Little Tokyos, Koreantowns, Chinatowns, and Little Manilas still exist and are strongholds of ethnic cultures and economy.

“Because of You. . .” Asians as Victims Institutionalizing Racial Discrimination: Asian Immigrants and U.S. Immigration and Citizenship

In her work that explores the [mis]representation of Chinese in U.S. performance art, Krystyn Moon (2005) sums up that racism toward Asians/Asian Americans is h­ istorically derived from the U.S. construction of six negative images: “the pollutant, the coolie, the deviant, the yellow peril, the model minority, and the gook” (p. 8). Such “aliens, outsiders who are inside,” she asserts, “disrupt the internal structure of a cultural formation as it defines itself vis-à-vis the Other; their presence constitutes a boundary crisis” (p. 3). Drawing on these anti-Asiatic sentiments, over decades at the turn of the century, multiple legal barriers had been legitimized and regulated to make sure the alien object would not penetrate into U.S. soil and/or be legally ­incorporated into American society. In the history of U.S. immigration, few people have suffered from federal and state exclusionary policies as much as the Asians did. At the state level, California alone passed two laws, one in 1858 and another in 1870, to curtail the importation of Chinese and Japanese laborers and women. Until the enactment of the Immigration and Naturalization Act in 1965, with an exception of Koreans, whose immigration had been curbed by the Japanese ruler, each one of the five largest Asian groups was singled out for discrimination in entry admission. Some of the most notorious acts



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include the 1882 Chinese Exclusion Law, the 1907 Japan–U.S. “Gentlemen’s Agreement,” the 1917 Indian Barred-Zone Law, the 1934 Filipino Tydings–McDuffie Act, and the 1924 Immigration Act that denied all Asians but the Filipinos ­permission to immigrate to America. Being the pioneers of Asian migration, the Chinese became a scapegoat for the class conflict between white laborers and white capital (Takaki, 1988, p. 111). The white working class’s outcry for the massive arrival of “the Orientals” “stealing” their jobs in the second half of the nineteenth century demanded U.S. capitalism to look for a resolution, which resulted in the barring of all but a few students, merchants, and diplomats from China in 1882. Until it was repealed in 1943, this act would be renewed twice in the next two decades and made indefinite in 1904. Racial discrimination against Japanese immigrants from Hawaiian and California’s white populace also rendered the U.S. government to seek an agreement with Japan in 1907 that ceased the coming of Japanese male laborers while allowing a certain quota of Japanese female “picture brides” until 1920. The Indians, being a controversial subject of racial definition in the United States since they were considered of the “Aryan” race but not quite “white” (Chan, 1991, p. 55), were finally excluded by the “Barred Zone” Law enacted in 1917 that geographically, and hence racially, separated India from the Caucasian Zone. Being the colonial subject of the American empire—one that made them a “notorious subject” in immigration admission (Cruz, 2010, p. 22)—the Filipinos eluded the 1924 National Origins and Asian Exclusion Act that limited the admission quota of Southern/ Eastern European nationals and barred all Asians from immigration. Nonetheless, a decade later their “luck” ran out when anti-Filipino whites joined force with advocates for Philippines’ independence to successfully strip their national privilege. Admission for Filipinos went down to a handful of 50 immigrants per year via the 1934 Tydings–McDuffie Act. But curtailing Asian immigration was not enough. U.S. legislation and state governments had to seek ways to solve the “problem” of tens of thousands of Asians who had already arrived in the country. Hence, a series of nationalization eligibility laws, anti-miscegenation laws, and rights of property possession were legitimized and enacted during the decades from the 1850s to the 1940s. Such efforts were made at many legislative levels to ensure the Asian expulsion, livelihood hindrances, and sexual and population control. “The American of Asian descent,” Lisa Lowe concluded, “remains the symbolic ‘alien,’ the metonym for Asia who by definition cannot be imagined as sharing in America” (1996, p. 6). In fact, the United States has a long racist history of citizenship exclusion not only for Asians but also for other people of color. Since 1790s, a federal law had been passed, reserving naturalization only to “free whites.” Even though later the law was extended to include “aliens of African nativity or African descent,” this amendment resulted from an effort to exclude Native Americans and Chinese. As early as in 1878 In re Ah Yup ruled Chinese ineligible for naturalized citizenship. The previously mentioned case of Takao Ozawa v. United States sealed the fate of almost all foreign-born Asians in terms of naturalization. One year later, even the “racially exceptional” East Indian immigrants finally met their doom when the U.S. Supreme Court shattered their desire of becoming American in the 1923 case of United States v. Bhagat Singh Thind, ruling Indians ineligible to naturalization. It was not until 1943, when in need of China as an ally in the Pacific Asian front, that the Congress passed the Magnuson Act, allowing Chinese to become naturalized. Following this success, Filipino and Indian immigrants were also made eligible for naturalization in 1946. Six years later, all racial restrictions in U.S. citizenship naturalization were removed. Apparently, it took Asian immigrants roughly a century to enjoy what their Anglo-Saxon European counterparts had always been given unquestionably.

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Of the many reasons that spurred the United States to curtail Asian naturalization, the privilege of agricultural and real estate property ownership pertained by U.S. ­citizenry is perhaps the most important one. The concerns about Asians gaining U.S. citizenship through jus soli (or birth right) and marriage resulted in U.S laws mandating both the restriction of the immigration of Asian women and forbiddance of miscegenation marriages between U.S. citizens and Asian aliens. For example, Chinese females, except for a handful of prostitutes and students, were not allowed to come to America. Also, American female nationals, especially white women, would “cease to be a citizen of the United States” if they married aliens ineligible to citizenship (Parreñas, 1998, p. 129). Such federal mandates were passed with the expectation that the disfranchisement of property ownership and legal family would lead to the aliens’ economic impediment and eventually to their departure from the country. Yet, being a U.S. citizen may not always guarantee an Asian descendant the same rights as his/her country fellows. During the Second World War, even the U.S.-born Asian Americans suffered from U.S. wartime racial project when, under the Executive Order 9006 and the Public Law 503, roughly 110,000 people of Japanese descent living on the West Coast, of which one-third were American citizens, were forcibly removed from their home to internment camps across the country. Although the United States was at war with the Axis powers, whereas German Americans and Italian Americans were not questioned for their loyalty to America, Japanese Americans were solely singled out as “enemy aliens.” “The Chinese Must Go!” A History of Asian Immigrants Encountering Violence and Hate Crimes

O, California’s coming down, As you can plainly see, They’re hiring all the Chinamen And discharging you and me. But strife will be in every town, Throughout the Pacific shore, And the cry of old and young shall be, “O, damn, Twelve Hundred More!” —Takaki (1998, p. 103) Above is a popular song sung in booming towns along the West Coast in the 1870s, expressing the frustration and disdain white labors and settlers had for Chinese labors. Although Asians were an irreplaceable workforce to California’s powerhouse economy, as soon as they entered the United States, they immediately faced hostility and violence from whites. Derogatory terms such as “Chinamen” and “Chinks” became common in everyday language to connote Chinese workers in the same way “Japs” did for Japanese and “little brown monkeys” for Filipinos. Being often ignored and/or underprotected by the law, early Asian migrants fell prey to all sorts of crimes, ranging from insult and harassment to arson, mob lynching, and even massacre. Because they were constitutionally denied of naturalization and thus omitted from political power, Asians found themselves with little to no power to protect themselves against white criminals. Again, being the first people to come to the Gold Mountain (Gam San, the name Chinese gold prospectors called San Francisco), the Chinese met with violence from townsfolk as early as the 1850s. As Chan (1991) notes, accounts of hostility against Chinese workers took three forms: “maiming and wanton murder of individuals, spontaneous attacks against and the destruction of Chinatowns, and organized effort to drive [them] out of certain towns and cities” (p. 48). Some of the most notorious incidents include the outbreak of mob violence in the Chinatown in Nigger Valley, Los Angeles, in 1871 that left 15 Chinese hung, 4 shot, and 2 wounded. In another



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incident in 1877, the Chinatown of Sacramento Valley was burned to the ground and 4 Chinese were burned alive by members of the white supremacist organization Order of Caucasians. Mob lynching and arsons led to large-scale massacre of Chinese workers in the anti-Chinese outbreaks at Rock Springs in Wyoming in 1885, in which 28 Chinese were killed on the spot and others later died of serious wounds. The burning of their huts and stealing of their valuables also cost the Chinese labors at Rock Springs more than $147,000 (pp. 48–49). Although other Asian groups might not have suffered as much as the Chinese had in the rate of murders and arsons, racism, nativism, and especially economic reasons also made them scapegoats to whites and turned them into subjects of expulsion. A group of Korean fruit pickers were forced to run for their lives from unemployed white mobsters who accused them of stealing their jobs in Hemet, California, in 1913 (Moon, 1976). Two hundred Indians were driven out of Bellingham, Washington, in 1907 because of their employment in the local lumber mills (Hallberg, 1973). Not only being degraded and imprisoned in the exploitative agricultural work, Filipinos in California also suffered from mistreatment and violence from white supremacists, who accused them of having relationships with white women (Parreñas, 1998). Attacks often happened in taxi dance halls established for Filipino men. In the riot that happened in 1930 at the Northern Monterrey Filipino Club, 400 whites attacked and injured dozens of Filipinos and killed one, Mr. Fermin Tobera (Sterngass, 2007, p. 51). The looting and destruction of the Japanese internees’ property during the WWII internment only mimicked what they had experienced decades before. One example was in 1921, in Turlock, California, where Japanese farmers were forced to leave town at midnight by armed white mobsters and told to not ever come back (Niiya, 1993, pp. 337–338). In most crimes against Asians, law enforcement responded slowly while, in courts, white culprits often walked or were given light verdicts. Hate crimes and injustice toward the Asian-American community, as the Vincent Chin case proves, are not only a problem of the past. Despite the fact that Asian Americans, especially Japanese Americans and Chinese Americans, have been exalted by American public since 1965 as the “model minority” in terms of class upward mobility and cultural assimilation, this myth does not render them immune from racial violence. The mass arrival of Southeast Asian refugees during the 1970s and 1980s put many Americans on edge since the refugees reminded them of a lost war they had tried to forget, and the hardworking “Orientals” posed a threat to their livelihood. Harassment and terrorism became a norm, especially in the West Coast where the newcomers tried to make their home. In 1981, white fishermen in Texas, including members of the local Texas Knights of the Ku Klux Klan and the Texas Emergency Reserve, rallied to protest the “gooks”—a derogatory term used for Asians in general but for Vietnamese in particular—for being an increasingly competitive threat in the Gulf Coast shrimping industry. The protestors organized a boat parade near Seabrook, displaying their weapons and hanging a Vietnamese effigy behind one of their boats. Similar efforts to drive the Vietnamese out of town to “protect” white fishing industry also happened at the same time in places like Monterey, California. Vietnamese boats were burned, Vietnamese fishermen were threatened and, in some cases, beaten, and lawsuits were filed against the inexperienced and scared new immigrants (Vietnamese Fishermen’s Association v. the Knights of the Ku Klux Klan, 1981). Much like what happened before and at the turn of the twentieth century, blatant discriminatory actions, including murders, were also parts of the Asian-American experience. Some notable cases took place during the 1980s. In 1984, Vietnamese high school student Thong Hy Huynh was stabbed to death by two white students on the Davis High School campus in Davis, California. In 1987, South Asian American Navroze Mody was murdered by an anti-Asian white gang in Jersey City, New Jersey. In the next year, two notorious incidents happened. In Raleigh, North Carolina, Jim

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(Ming Hai) Loo—a Chinese American—was pistol whipped to death by two white brothers, Robert and Lloyd Pitche, who had mistaken him to be Vietnamese. In Stockton, California, 26-year-old Patrick Purdy discharged his gun into a kindergarten, killing five Southeast Asian children ranging in age from six to nine. In courts, such cases were all proven to be racially motivated. The Pitches attested that they hated the Vietnamese because they lost a brother in the Vietnam War, while Purdy was reported to have accused that “the government was giving jobs to the Vietnamese and they also got money to live on before they got their job” (Espiritu, 1992, pp. 156–157). Pressure from a more united Asian-American community, however, made the justice system more serious than the Chin’s case: Robert Pitche was found guilty of second-degree murder and sentenced to 37 years in prison. Patrick Purdy eluded a verdict by committing suicide before his arrest. Regardless, hate crimes toward Asian Americans became so alarming that in New York City Asian Americans formed the Coalition Against AntiAsian Violence (CAAAV) to cope with local incidents related to anti-Asian violence and police brutality. Decades later, even after Asian refugees had carved a niche in America in terms of social adaptation and economic upward mobility, such successes do not erase the social animosity and racial discrimination they suffer. The Asian-American community continues to face the racial “glass ceiling”—a sociological term coined for invisible barriers a person of color would meet once she or he reaches a certain level of success—in political empowerment, economic improvement, and cultural influence. At schools such as UC Berkeley, Stanford, Harvard, and Brown, unfair admission quotas and limitations were set up to reduce the enrollment of Asian students in the 1980s. Ironically, this discrimination was usually promoted by those who advocated for the abolishment of affirmative action, saying that it was other students of color, rather than whites, who suffered unfairly from the high admission rates of Asian Americans (Takaki, 1998, p. 499). The construction of Asian-American identity has now become more complex and nuanced, notwithstanding the continuity of anti-Asian sentiments. Under the gaze of the American public, such identity is the combination of both “the gook and the geek” (Hillenbrand, 2008, p. 57) and the racial nature of the Asians in America has circled “from yellow peril through model minority to renewed yellow peril” (Shim, 1998, p. 385).

“An Isolated Boy in a World of Strangers”2: Asian Americans as Offenders Recently, the model minority myth, as described in the textbox below, which often portrays Asians as submissive, law-abiding, nonviolent, and highly educated subjects, has seemingly excluded Asian Americans from being viewed as “menacing” minority groups. However, this assumption serves several different purposes. On the one hand, it is an effort to criminalize blacks and Latinos. On the other hand, it aims at emasculating and domesticating the Asian body. Under the tip of the model minority iceberg, the image of the stealthy, unpredictable, and tong-related Asian criminal is still alive and well. One good example of such prejudice is the murder of Kao Kuan Chung by San Francisco police in Rohnert Park in 1997. Kao was shot to death by police officer Jack Shields on account of him “looking Chinese” and holding a long wooden cane (Chao, 1997). For U.S. law enforcement and the public, being Asian with a weapon often makes one a martial arts expert and thus a dangerous criminal. The identification of the Asian body as a site of deviance began with the arrival of the early wave of Asian labors. The Asian “deviant” was identified with the appearance 2

Title from an article in Washington Post (Cho & Gardner, 2007).

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Model Minority Myth Lynn Jones The stereotypical label of a “model minority” has historical roots in the United States as a way to demonstrate that Asian Americans, through hard work and against the odds facing racial/ethnic minorities (Caramat, 2014), have succeeded without complaint or government support, while other racial or ethnic groups have “failed.” Starting in the 1960s, the media used such terminology to characterize Asian immigrants as fulfilling the American Dream, while conveniently neglecting the decades of anti-Asian sentiment in this country (Chow, 2011). Using a model minority narrative isolates Asian Americans from other people of color as it undermines the understanding of other marginalized groups: if one group can succeed, then there must be something inherently wrong with the other groups that explains their own position in society (Chow, 2011). Also, the apparent praise associated with the stereotype has also recast Asian Americans as a foreign threat, as with challenges to affirmative action (Caramat, 2014). Asian Americans are often ­perceived according to their “success” because of average high rates of education and income compared to other groups. Such apparent success is thought to support claims that white privilege does not exist, and reinforces the myth that people of color do not face discrimination if they share values of hard work and education (Wang, 2015). However, not all Asian Americans share this ­experience, and reinforcing the stereotype of a “model minority” creates further misconceptions about difference and people of color. As noted in Chapter 2, even a seemingly “positive” stereotype is still a stereotype—and Asian Americans and Pacific Islanders (AAPIs) face pressures to live up to this socially constructed myth of success and educational achievement, while the realities of their experiences and community needs are often ignored. Further, if Asian Americans are seen only in terms of the misperception and myth of success, then public policy decisions regarding assistance to communities will miss important needs of this group. Additionally, the myth of the model minority collapses all Asian Americans and Pacific Islanders into one category and eclipses the vast diversity of this population. In the United States, Asian Americans and Pacific Islanders are the fastest growing racial group, with their population expected to grow by double over the next 50 years (Wadhwa, 2015) and surpass Latinos as the country’s largest immigrant group (Wang, 2015). However,

there are inequalities among AAPIs just like other racial minority groups, and research shows that these communities face serious problems in education and other areas of society. The AAPI community includes people from a vast geographic area including “Fareast Asia, Southeast Asia, the Indian subcontinent, and the Pacific Islands, with over 100 languages and dialects represented”; further differences of these groups include religious practices, socioeconomic status, school experiences, and the contexts in which they have immigrated to the United States (Chow, 2011). When disaggregating the achievement data among Asian Americans, the experiences of South Asian Hmong, Lao, Cambodian, and Khmer groups mean they fall below typical measures of economic or educational accomplishment (Wang, 2015). A recent White House Initiative on AAPIs evidenced that Asian Americans are similar to African Americans in their high rates of needing remedial coursework, and that most AAPIs are enrolled in community ­colleges rather than elite private colleges (Wadhwa, 2015). Many Asian Americans are also firstgeneration students, and some face language barriers. Particularly vulnerable are Southeast Asian and Pacific Islander students, including Native Hawaiians, who have high rates of school dropouts and family poverty (Chow, 2011). AAPI students and adults differ in whether they experience wealth or poverty, family support and community connections or families who do not speak English and isolate, or immigration contexts that offer structural ­supports or barriers. It is important to acknowledge these differences within the Asian-American population, as well as the limitations of any stereotype, in order to more fully appreciate and include all Asian Americans in the work toward social justice. References Caramat, A. (2014, December 18). #ModelMinorityMutiny: What this hashtag means and why it’s trending. Audrey Magazine. Retrieved from http://audreymagazine.com/model­minority mutiny-what-this-hashtag-means-and-why-its-trending/. Chow, G. S. (2011). The model minority myth: Implications for independent schools. Independent School Magazine, Winter. Retrieved from http://www.nais.org/Magazines-Newsletters/ ISMagazine/Pages/The-Model-Minority-Myth.aspx. Wadhwa, V. (2015, May 18). Why calling Asian Americans model minority glosses over crucial issues. The Washington Post. Wang, Y. (2015, October 20). Asian Americans speak out against a decades-old ‘model minority’ myth. The Washington Post.

of opium dens and brothels run by Chinese bosses and “madams” in the West Coast. The confinement of thousands of Chinese bachelors in Chinatown and the increase of California’s boomtowns demanded a contingent of Chinese prostitutes, who later joined by Japanese prostitutes, to be brought to the new land. Most of these women were

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kidnapped and smuggled to America where they would be exploited by brothel owners, highbinders, policemen, and even immigrant officials. Opium dens and gambling halls were also established to help lonely Asian males forget their hard lives and homesickness. Although most of these joints were legal at the time, the law made sure that they were kept in check and out of the white’s space. To prevent them from “contaminating” the town, for example, as early as in 1854 San Francisco authority put a fine of $1,000 on several Chinese madams and ordered their Chinese “houses” to be moved out of the city limit. Local expulsion soon turned into state ban and federal exclusion when California passed two acts in 1870 to forbid the importation of “Mongolian, Chinese, and Japanese females for criminal or demoralizing purposes” and the Congress passed the Page Law in 1875 to bar Chinese, Japanese, and Mongolian women, as prostitutes and felons (as well as male contract labor), from entering the country (Chan, 1991, pp. 54–56). The majority of white prostitutes, however, were left alone. As offenders, Chinese traditions of thousand-year ancestral ties, brotherhood, and clan unity enabled the making of powerful organizations known in the West as the triads, or tongs. These fraternal organizations gradually mutated into crime organizations, engaging more in criminal activities and controlling much of the lucrative trades such as Chinese opium dens or brothels. They also extended their hands to extortion and illegal protection rackets as long as the Chinese population increased and Chinatowns’ businesses became more diverse. Interest ­c onflicts and disputes over gangs’ “honor” and turf turned into bloody feuds between different tongs, and clashes were often met among notorious “highbin­ ders” and “hatchet men.” It was not until 1925 that the fighting tongs came to agreements that led to a truce in the Chinese underground world. The world of the Chinese tongs and their contemporary (and many times rivals) Japanese Yakuza is nonetheless often exaggerated by the American mass media, especially Hollywood, to emphasize on the threat of the menacing “yellow race.” In contemporary America, Asian-American communities are reported to have the lowest crime rates of all racial groups. For example, in 2014, of the total 8,730,665 offense charges, Asian Americans only accounted for 100,067 charges, whereas these numbers are 6,056,687 for whites and 2,427,683 for blacks and 135,599 for American Indians. Of these offenses, violent crime number is also very low: only 5,453 cases in comparison to 390,233 cases in total, in which 107 out of 8,230 cases of murders and non-negligent manslaughters, 67 out of 74,077 robbery cases, and 4,507 out of 291,600 aggravated assault arrests (The Federal Bureau of Investigation, 2014). Although such positive reports are usually attributed to the model minority, what lies behind the seemingly crime-free communities of Asian Americans may tell a different story (Chou & Feagin, 2008; Du & Richard, 1996; Fong, 2007; Lee, 2009; Wu, 2013). Extortion, gambling, prostitution, illegal human trafficking, and money laundering are still lucrative revenues for international criminal organizations in Asian ethnic concentrations. Being marginalized and bullied in the public sphere, many Asian-American youths, especially the 1.5 generation, fall into the hands of street gangs. Southeast Asian gangs such as Asian Boyz (formed by Filipino youth to fight back against Mexican gangs’ harassment and later joined primarily by Cambodian and Vietnamese young immigrants) clashed with the Chinese rivals of Wah Ching gang in Southern California (Marcellino, 2013), while the Hmong gang of Cobras made their name notorious in the Midwest (Straka, 2003). Gang-related crimes often involve home invasions, petty thefts, car highjacking, extortions, rapes, drive-by shootings, and other forms of violence between rival gangs. Because young Asian gangs often limit their activities to capitalizing on their own people and preying on the Asian neighborhood (Ong, 2003, pp. 229–241), few

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Asian-American violent crime offenses are reported, let alone make national headlines. One of the several exceptional cases may be the robbery and holdup of four Vietnamese gang members at the Jing Hing jewelry store in Los Angeles in 1984, which ended up in a shootout that took the lives of one police officer and two young criminals. The most shocking violent crime that concerned Asian youth was, in fact, a non-gang-related case. On April 16, 2007, Korean-born American student Seung Hui Cho opened fire at students and faculty at Virginia Polytechnic Institute and State University, killing 32 people before committing suicide. While the “lost generation” represented in Cho’s massacre and the Jing Hing robbery pointed to the state of social isolation and violence young Asian immigrants had to cope with in America, made famous by mainstream media, these crimes also revealed the subtle prejudice against the Asian “other” (So, 2013, p. 271). Alarmingly, Asian Americans also fall victim to the “divide to conquer” strategy of the model minority as racial tension between Asians and other communities of minority groups has been increasing throughout recent decades. The most noticeable animosity is that between Korean Americans and African Americans. One example is the 1992 Du’s case, in which a 51-year-old Korean storeowner, Soon Ja Du, shot 15-year-old Latasha Harlins to death over the quarrel of a bottle of orange juice. Du was later convicted of voluntary manslaughter and sentenced to only a probation term. The case enraged the African-American community and contributed to the 1992 Los Angeles riot, in which the majority of Korean-owned businesses were destroyed. While the argument that Asians are often treated more favorably than blacks in the court of law is often well founded, scholars also argue that the racial division is also intended and misled by the mass media (Park, 1996, p. 496).

“The Working Man’s Opportunity to Move up the Ladder”3: Asian Americans as Service Providers Asian immigrants began to establish agencies to serve their countrymen and communities very early. Since 1851, Chinese immigrants from the same districts had formed associations or huiquan in San Francisco to help homemates build their lives in the new land and extend businesses among members of the association. In 1862, Chinese members of different associations formed the Chinese Consolidated Benevolent Association—or the “Six Companies”—to unite Chinese in California and help them deal with the difficult and hostile anti-Chinese environment in the West Coast. The Japanese also built prefectural associations, or kenjinkai, and the Japanese Association of America to cope with the rising anti-Japanese sentiment in early 1900s (Chan, 1991, pp. 63–68). These early Asian associations, though sometimes controversial, were instrumental in protecting and assisting Asian immigrants in a world where Asians had no power and little protection from the law. In the contemporary era, Asian organizations also work hard to provide needed services to the community and bring justice to oppressed and marginalized Asian Americans. The success of the Japanese American Citizens League (JACL) is one typical example. In late 1970s, it launched a campaign demanding that the U.S. government redress the WWII Japanese internment issue, which later resulted in the government’s apology to the Japanese and a reparation payment of $20,000 to each internee still alive. The American Citizens for Justice, founded after the killing of Vincent Chin, was key to combating anti-Asian sentiment and 3

Quoted New York University historian John Kuo Wei Tchen in an article in The New York Times, January 3, 2015.

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hate crimes and advocating the empowerment of the Asian-American community. Other community-advocated organizations such as the Asian American Justice Center or the Asian Immigrant Women Advocates also have been of aid of the Asian community in the United States. As an important part of community and racial empowerment, Asian Americans also partake in criminal justice agencies. However, although the number of minority serving in law enforcement has been steadily increasing in recent years, the percentage of police officers with Asian-American heritage continues to be small. For example, in 2013, of about 27% of local police officers who were members of a racial or ethnic minority, Asian/Pacific Islanders accounted for only 2.4% (in comparison to 12.2% being blacks and 11.6% being Hispanics) (Reaves, 2015, p. 5). In the same year, reports also showed that approximately 14,000 police officers were Asian/Pacific Islander Americans and American Indians (p. 6). In 2015, the New York Times reported that “Twenty-five years ago, there were just 200 Asian-American officers in New York City. Now there are more than 2,100 in uniform, or six percent of the total […]. The percentage of academy graduates, moreover, has jumped to 9 percent, from 4 percent, in the last decade” (Chen, 2015). The notable increase in the number of Asian American police officers serving local law enforcement was only observed in a few exceptional metropolises with large working class Asian populations such as New York City. The majority of Asian-American law enforcers, however, are concentrated heavily in metropolises with populations of more than 500,000 people. Because the AsianAmerican population continues to be anchored in major cities’ ethnic enclaves, such ­disproportion also suggests that while Asian public servants pay attention to provide ­services to their ethnic communities, the lack of their presence throughout the country somewhat disempowers their civil rights and political power. The contemporary image of Asian Americans in U.S. law enforcement is also quite controversial, since they can be seen as both victim and offender of U.S. racial conflicts. On November 20, 2014, NYPD Chinese American police officer Peter Liang, during his patrol in the Louis H. Pink Houses in East New York, shot and killed a 28-year-old unarmed African American, Akai Gurley. One month later, on December 20, a Chinese American officer named Wenjian Liu and his partner Rafael Ramos were shot to death while sitting in their squad car in Bedford-Stuyvesant in Brooklyn, New York City, by an African American named Ismaaiyl Abdullah Brinsley. In the wake of the Ferguson riot and the critical state of police brutality toward African Americans, both cases indicate that the 1992 Los Angeles Riot is not an isolated incident and the experience of people of color, including that of Asian Americans, with the U.S. history of racialized justice should always be in remembrance.

Questions for Review 1. Why are Asian Americans often associated with the terms the “alien within” or the “perpetual foreigner”? 2. Why were Asian immigrants historically targeted by U.S. immigration policies? And why did U.S. government pass different exclusionary laws on different ­ethnic groups of Asian immigrants? 3. To what extent did the racial construction of Asian as the “Oriental deviant” and the “yellow peril” criminalize Asian Americans?

4. How successfully did Asian Americans manage the ­discriminatory social environment and exclusionary laws to provide service to the community? 5. In a deeply racially conflictual society of the United States, Asian-American service providers often have to negotiate a difficult position of being “neither black nor white.” Discuss how and why such an “in-between” state impacts their job.



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References Bhalla, V. (2006). The new Indians reconstructing Indian identity in the United States. American Behavioral Scientist, 50(1), 118–136. Chan, S. (1991). Asian Americans: An interpretive history. Boston, MA: Twayne Publishers. Chan, S. (2006). The Vietnamese American 1.5 generation: Stories of war, revolution, flight, and new beginning. Philadelphia, PA: Temple University Press. Chao, J. (1997, May 25). Asian man’s shooting by police spurs three probes. San Francisco Examiner. Chen, D. (2015, January 3). In New York City, a toll is newly felt as Asians rise in the police ranks. New York Times. Cho, D., & Gardner, A. (2007, April 21). An isolated boy in a world of strangers: Cho’s behavior alarmed some who knew him; family humbled by this darkness. Washington Post. Chou, R. S., & Feagin, J. R. (2008). The myth of the model minority: Asian Americans facing racism. Paradigm Publishers. Cordova, F. (1983). Filipinos: Forgotten Asian Americans. Dubuque, IA: Kendall/Hunt Publishing Company. Cruz, A. (2010). There will be no ‘one big union’: The struggle for interracial labor unionism in California agriculture, 1933–1939. Cultural Dynamics, 22(1), 29–48. Du, P. P. L., & Richard, L. (1996). The dream shattered: Vietnamese gangs in America. Boston, MA: Northeastern University Press. Espiritu, Y. L. (1992). Asian American panethnicity: Bridging institutions and identities. Philadelphia, PA: Temple University Press. The Federal Bureau of Investigation. (2014). Table 43: Arrests by race. 2014 Crime in the United States. Retrieved from https://www.fbi.gov/about-us/cjis/ucr/ crime-in-theu.s/2014/crime-in-the-u.s.-2014/tables/ table-43. Fong, T. P. (2007). The contemporary Asian American experience: Beyond the model minority (3rd ed.). Upper Saddle River, NJ: Prentice Hall. Haines, D. W. (1989). Refugees as immigrants: Cambodians, Laotians, and Vietnamese in America. Rowman & Littlefield. Hallberg, G. N. (1973). Bellingham, Washington’s antiHindu riot. Journal of the West, 12, 163–75. Quoted in Chan, S. (1991). Asian Americans: An interpretive ­history. Boston, MA: Twayne Publishers. Hillenbrand, M. (2008). Of myths and men: “Better luck tomorrow” and the mainstreaming of Asian America cinema. Cinema Journal, 47(4), 50–75. Hoeffel, E. M., Restogi, S., Kim, M. O., & Shabid, H. (2012). The Asian population: 2010. 2010 U.S. Census Bureau Briefs. Khadria, B. (1999). The migration of knowledge workers: Second-generation effects of India’s brain drain. Thousand Oaks, CA: Sage Publications.

Lee, S. J. (2009). Unraveling the ‘model minority’ stereotype: Listening to Asian American youth (2nd ed.). Teachers College Press. Lowe, L. (1996). Immigrant acts: On Asian American cultural politics. Durham, NC: Duke University Press. Marcellino, E. (2013, May 14). Former Asian Boyz gang leader gets 218 years. Los Angeles Daily News. Monterol, D. (1979). Vietnamese Americans: Patterns of resettlement and socioeconomic adaptation in the United States. Boulder, CO: Westview Press. Moon, H. J. (1976). The Korean immigrants in America: The quest for identity in the formative years, 1903–1918. Unpublished dissertation. Quoted in Chan, S. (1991). Asian Americans: An interpretive history. Boston, MA: Twayne Publishers. Moon, K. R. (2005). Yellowface: Creating the Chinese in American popular music and performance, 1850s–1920s. New Brunswick, NJ: Rutgers University Press. Niiya, B. (Ed.). (1993). Japanese American history: An A–Z reference from 1868 to the present. Facts on File Publications. Ong, A. (2003). Buddha is hiding: Refugees, citizenship, the New America. Berkeley, CA: University of California Press. Park, K. (1996). Use and abuse of race and culture: Black– Korean tension in America. American Anthropologist, New Series, 98(3), 492–499. Parreñas, R. S. (1998). “White trash” meets the “little brown monkeys”: The taxi dance hall as a site of interracial and gender alliances between white working class women and Filipino immigrant men in the 1920s and 30s. Amerasia Journal, 24(2), 115–134. Reaves, B. (May 2015) Local police departments, 2013: Personnel, policies, and practices. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Sahoo, A. K., Sangha, D., & Kelly, M. (2010). From ‘temporary migrants’ to ‘permanent residents’: Indian H-1B visa holders in the United States. Asian Ethnicity, 11(3), 293–309. The Senate and House of Representatives of the United States of America. (1906). An act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens [260 U.S. 178, 191] throughout the United States. The American Journal of International Law, 1(1), 31–47. Shim, D. (1998). From yellow peril through model minority to renewed yellow peril. Journal of Communication Inquiry, 22, 385–409. So, C. (2013). Asian American studies and the subject of Seung Hui Cho. Journal of Asian American Studies, 16(3), 267–293. Sterngass, J. (2007). The new immigrants: Filipino Americans. Chelsea House Publishers.

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Straka, R. (2003). The violence of Hmong gangs and the crime of rape. Criminal Justice International, Sam Houston State University, 19(76). Retrieved from http:// www.cjimagazine.com/archives/cji5c60.html?id=690. Takaki, R. (1998). Strangers from a different shore: A history of Asian Americans. Boston, MA: Little, Brown and Company. Takaki, R. (2008). A different mirror: A history of multicultural America. Boston, MA: Little, Brown and Company. U.S. Census. (1930). Fifteenth census of the United States (Vol. II). Washington, DC: Government Printing Office. Quoted in Parreñas, R. S. (1998). “White trash” meets the “little brown monkeys”: The taxi dance hall as a site of interracial and gender alliances between white working class women and Filipino immigrant men in the 1920s and 30s. Amerasia Journal, 24(2), 115–134.

Vietnamese Fishermen’s Association v. the Knights of the Ku Klux Klan, 518 F. Supp. 993. (1981). Civ. A. No. H-81-895. Memorandum Opinion and Order. United States District Court, Southern District of Texas, Houston Division. Viviani, N. (1984). The long journey: Vietnamese migration and settlement in Australia. Melbourne, Australia: Melbourne University Press. Wu, E. (2013). The color of success: Asian Americans and the origins of the model minority. Princeton University Press. Zia, H. (2012). Detroit blues: “Because of you motherfuckers.” In J. Y. W. S. Wu & T. Chen (Eds.), Asian American studies now: A critical reader (pp. 35–54). New Brunswick, NJ: Rutgers University Press.

PART FOUR ▪ ▪ ▪ ▪ ▪

Categories of Difference: Immigration and Race

Part Four focuses on issues related to immigration and race, which in the United States currently tend to reflect a conversation about Latinos even though there are immigrants from many other backgrounds. We restructured the organization of the book to group these chapters together since many instructors were clustering these chapters in their teaching of the material. There are three chapters in this section, and together they deconstruct the historic and current experiences of Latinos, immigrants, and the socially constructed meanings of difference that result in moral panics surrounding the politics of immigration and justice. For us, teaching and researching in the Southwest—and specifically in Arizona—provides rich experience in discussing issues of immigration from south of the border. In Chapter 14, Costelloe describes the apparent contradictions in the history of American immigration in that we pride ourselves on being a melting pot or a “nation of immigrants,” while at the same time we have excluded or characterized certain immigrants as different or “other.” The socially constructed meaning of various immigrant groups is contingent upon historic social contexts, and both past and present debates about immigration should illustrate that the melting pot image is really a myth. Costelloe details different historical periods in which immigrants were coming from different parts of the world due to difficult situations in their country of origin, such as the Irish, coupled with expanding opportunities in the United States. The social construction of certain immigrants was further reinforced through law, and this chapter shows how current legal efforts are not that different from those in the past. The chapter also shows how the media advances particular images of immigrants, influencing and reflecting both public discourse and attitudes about immigration and the stereotypical connection to crime. Enforcement of immigration laws has created an increase in incarceration for immigrants, but whether there is an increase in criminal violations is less clear. As Costelloe demonstrates with a discussion of existing research, there is no consistent evidence suggesting that foreign-born individuals are any more or less likely to engage in crime compared to American-born individuals. Costelloe continues to describe how anti-immigrant attitudes have fueled victimization of different immigrant groups over time. This is similar to the discussion in Chapter 13 on anti-immigrant sentiment of Asian Americans at different times in the last century. The chapter ends with a call for greater cultural awareness of the complexities associated with immigrants for improved service delivery in the criminal justice system. The phrasing of “unwelcome citizens” in the title of Chapter 15 by Alvarez succinctly supports our rationale for including this chapter in Part Four alongside the two i­mmigrationrelated chapters by Costelloe. Latinos are often cast as unwelcome immigrants even when they or their families are American-born or several generations beyond immigration. The policing of Latinos reflects a concern about illegal or criminal status, demonstrating how the social ­construction of Latino difference often conflates perceptions about ethnicity with those about certain immigrants. The controversy surrounding Arizona’s SB 1070 and its “show me your papers” requirement provides a good example of a regional issue that became part of the broader 223

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national discourse on immigration. Alvarez also details the differences within the Latino population, arguing that different histories and social contexts in the United States for Mexican Americans, Cuban Americans, and Puerto Ricans have created very different experiences for these groups. Different perceptions, often related to socioeconomic status, have led some Latinos to become more criminalized and otherwise more likely to come into contact with the criminal justice system. In general, Alvarez points out that Latinos are overrepresented in arrest data, and presents a few theoretical explanations for why that may be the case. Alvarez closes out the chapter with some discussion about victimization and justice work among Latinos, and it is helpful to connect to the related material in the two chapters by Costelloe for depth of understanding. In Chapter 16, Costelloe elaborates on the ideas introduced in the two previous chapters by examining how the socially constructed difference associated with immigrants intersects with perceptions of economic and cultural threat. The legal efforts responding to such perceptions include limiting access of immigrants to the country, limiting access to education and social services once here, declaring English as an official state or national language, and criminalization generally. With this revised chapter, Costelloe nicely incorporates an explanation of how the dynamics of globalization and migration further contribute to the construction of certain immigrants as a threat. The theoretical tool of a moral panic provides a mechanism for understanding how a problem of immigration and certain others come to be defined in a fear-based and distorted way to justify particular policy actions. An analysis of the discourse of threat shows how a moral panic can be rooted in fears that are economic, cultural, and criminal—all of which help explain the criminalization of immigration (or crimmigration). Together these chapters provide an illustration of how Latinos, immigrants, and moral panics are linked and informed by examination of historic and present-day social contexts. They demonstrate recent examples of how the socially constructed nature of these groups, and the differences within groups, impact criminal offending and victimization patterns, as well as policy responses more generally.

14

▪ ▪ ▪ ▪ ▪

Coming to America Immigration, Crime, and the Criminal Justice System Michael Costelloe

Chapter Objectives • Define U.S. immigration patterns. • Describe the major legislation that has influenced American immigration. • Explain how immigration policy responds to social, political, and economic contexts and the related socially constructed meanings of difference. • Summarize how changing immigration trends have changed the racial and ethnic composition of the United States over the last 60 years. • Discuss the various factors that shape the perceptions of immigration and immigrants. • Analyze the relationship between immigration and crime. • Identify the factors that tend to make immigrants vulnerable to criminal victimization. • Critically assess the importance of increasing the racial and ethnic diversity of the criminal justice system.

Introduction The United States has had a long and ambivalent relationship with immigration. On the one hand, we celebrate the “melting pot” description of American culture, while on the other hand we decry the cultural, social, and economic ailments that an influx of these “others” is thought to bring with them. While many find it is easy to reconcile these seemingly contradictory sentiments by clearly differentiating between those immigrants1 who came here through “proper channels” or legally and those who are deemed “illegal,” such convenient distinctions are rarely so clear-cut or even acutely relevant. It has never particularly mattered whether the newly arriving immigrants were Irish, Italians, Poles, Greeks, or Germans entering the United States “officially” through the Ellis Island immigration station in the late 1800s or whether they were Mexicans, Guatemalans, or Hondurans crossing the border “illegally” by splashing through the Rio Grande river into Texas during the dead of night in 2015. As U.S. history shows us, most immigrants who have come here looking for a better life or fleeing from an oppressive, dangerous, and/or impoverished one have generally been welcomed with hostility, discrimination, and even violence. This chapter examines some of the adversity that immigrants have had to overcome, including exclusion, anti-immigrant sentiments, and restrictive and oppressive immigration policies, which often belies the “melting pot” description of American society. Furthermore, it looks at the immigrants’ experiences with the U.S. criminal justice system as offender, victim, and practitioner. Before doing so, an examination of the long and complex history of American immigration is in order. 1

Please note that in this chapter unless otherwise stated “immigrant” refers to non-American-born individuals, regardless of their means of entry into the United States. When necessary, I will distinguish between documented and undocumented immigrants.

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Immigration Patterns and Trends Immigration affects every country in the world. In this regard, the United States is not unique. However, what does appear exceptional about immigration in the United States is the actual number of people who migrate here. With almost 59 million immigrants having arrived since 1965, the United States is the number one destination for those emigrating from one country and migrating to another (Manuel-Krogstad & Keegan, 2015). Understanding what pushes them from their homelands and draws them to the United States is a surprisingly difficult and complex endeavor. There are a wide range of social, economic, cultural, and political factors that influence immigration patterns and trends. Moreover, there are within-group differences as well as between-group differences. Within-group differences refer to the multiple and varied personal reasons why individuals within the same group decide to emigrate. Between-group differences, on the other hand, refer to the different reasons why certain groups immigrated to the United States. For example, why a vast number of German Jews immigrated to the United States in the 1840s (persecution, oppressive laws, and lack of economic opportunity) is different from why nearly 1.5 million Irish immigrated between 1845 and 1855 (poverty and starvation resulting from the Irish Potato Famine). Of course, not only is there variation in the reasons for why people emigrate but what the newly arrived immigrants encountered and experienced has also been quite diverse. These individual- and group-level differences, then, make attempts at generalizing the “immigrant experience” difficult at best and misguided at worst. Having said this, however, it would be nearly impossible to discuss all the multifaceted experiences of immigrants and thus some overgeneralizing is unavoidable. The United States has a long and complicated history of immigration, experiencing periods of ebbs and flows. Immigration to what is today called “America” began centuries ago as the ancestors of today’s American Indians migrated here from Asia, at a time when Asia was still connected to what is now considered North America by a land bridge. However, most discussions about immigration generally recognize four “great waves” of immigration beginning with British colonization and followed by escalations in immigration occurring in the early part of the nineteenth century, the latter part of the nineteenth century and early part of the twentieth century, and finally and most recently Latino immigration, which represents the largest wave of immigration from a single country to the United States (Passel, Cohn, & Gonzalez-Barrera, 2012). Changes in immigration patterns are due to reasons that are as varied as they are vast and often respond to or are supported by changes in immigration policies. This chapter provides an overview of these changes and discusses the policies that have been developed and implemented and that have at times encouraged immigration and other times have restricted it. Colonial America (1620–1776)

The first great wave of immigration began around 1620 when about a hundred English pilgrims came to America to escape religious persecution and pursue religious freedom. Over the next several decades, an estimated 20,000 puritans followed suit and settled in New England (Moore, 2007). Like pilgrims, the puritans were also seeking greater religious freedom but were also fleeing the economic depression that preceded the English Civil War (1642–1651) (Bankston, 2015). During this period, most of the immigrants were white Englishmen. However, soon the demand for labor and the difficulty in finding men and women willing to emigrate to America led to other means of populating the new land. For example, in addition to those who came free of restraints, others came as indentured servants. Indentured servants (many from Ireland) generally agreed to work for a period of time (generally about four years) for those who would pay for their passage to the English colonies. Another



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pool of labor came from those who had been convicted of crimes in England and who were given the choice of coming to America as indentured servants or going to jail. In many ways, then, America started out as a penal colony. In short, indentured servitude was an important source of immigration in colonial America. For example, in 1642 only about 8,000 people occupied Virginia, but by 1660 its population had swelled to almost 30,000, most coming from the British Isles as indentured servants (Bankston, 2015). European migrants from Holland, Sweden, and Germany played a significant role in the settling of America. Toward the latter part of the 1620s, Dutch traders established the colony of New Netherland (now New York). With the encouragement of Holland leaders, migration to the new colony escalated, resulting in an increase in the population from about 2,000 inhabitants to approximately 10,000 between 1648 and 1660 (Alchin, 2015). In 1637, the Swedish colony of New Sweden was established on Delaware Bay. German immigration to the America colonies began around 1683; however, its largest migration during the colonial era began in 1710 when around 2,100 Germans from the Palatine region fled political upheaval and economic adversity and settled mostly in New York. Over the next 65 years or so, an estimated 85,000 Germans migrated to America. At the conclusion of the revolutionary war, Germans thus constituted the largest group of migrants to America, with the exception of those who had come from Great Britain (Alchin, 2015). Between 1675 and 1725, colonial America was also impacted by the migration of a large number of Quakers, who came to spread their beliefs to the colonists and to flee English religious persecution. It is believed that about 23,000 Quakers arrived from England and in much lesser numbers from Wales and Ireland, settling in the Delaware River area of what would become Pennsylvania and New Jersey (Bankston, 2015). From 1750 to about 1775, Northern Ireland, Scotland, and North English migrants constituted the largest proportion of immigrants coming to America. Of these, people of Northern Irish descent led the way with nearly 50,000 people immigrating to America between 1750 and 1770, while 25,000 Scots arrived between 1760 and 1775. During this time, Scottish, Irish, and Northern Englanders accounted for approximately 90% of the growth in the western regions of the newly formed colonies (Bankston, 2015). Africans also constituted a source of labor during this time. The first 20 Africans arrived here in 1619, either as slaves or, like many white workers, as indentured servants (Takaki, 1993). However, over time the vast majority arrived, primarily from West Africa, as slaves or involuntary immigrants. During the first three quarters of the eighteenth century, almost 300,000 Africans were forcibly brought to America and by 1790 almost 20% of the American population was comprised of people of African descent (Takaki, 1993). Post-Colonial America (1815–1850)

The second great wave of immigration occurred from about 1815 to 1865. Again, most of those who migrated to the United States during this time were white and came from Northern and Western Europe with nearly 33% coming from Ireland. The explosion in Irish immigration is almost wholly due to the Great Irish Potato Famine, which affected Ireland from 1845 to 1849, killing over a million men, women, and children due to mass starvation and a number of other associated diseases such as typhoid and dysentery. Forced to leave Ireland as matter of survival, many sought relief and economic opportunity by immigrating to America. By 1850, almost one million Irish had immigrated to the United States, accounting for about 50% of the immigrants who came to America at that time. Most of Irish settled in the cities along the eastern seaboard, finding work with the newly developing transportation system and in Pennsylvania coal mines. Also during this time almost five million Germans migrated to the United States. Many were fleeing agricultural failures that had resulted in large-scale poverty and

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destitution among some segments of the German people (U.S. Immigration and Migration Reference Library, 2004). In fact, following the American Civil War, more than 1.3 million German farmers came to the United States, many buying Midwest farms or occupying Midwest cities such as Cincinnati, St. Louis, and Milwaukee. There was at least one notable difference about this wave of immigration. During the mid-1800s, the United States experienced a significant increase in the number of Asian migrants settling in America. Pulled from their homelands and pushed toward the United States by the prospect of finding gold in California during the Gold Rush, nearly 25,000 Chinese immigrated here by 1850. Rather than finding their fortune in gold, however, many ended up taking agricultural jobs, working in factories, and building railroads (U.S. Department of State, 2015). As will be seen later, the Chinese would eventually become the first ethnic minority specifically targeted by restrictive ­immigration legislation. The Late Nineteenth and Early Twentieth Centuries (1850–1920)

The late nineteenth and early twentieth centuries was a time characterized by rapid and significant social changes that accompanied the age of industrialization. Along with the transformation from an agriculture-based society to one predicated on mass ­production came an increased need for labor, and immigrants answered the call in stunning numbers. Between 1850 and 1920, about 12 million immigrants came to America. The vast majority of these came from Central, Eastern, and Southern Europe (Jasso & Rosenzweig, 2006). Between 1890 and 1900, approximately 600,000 Italians came to America with four million more arriving by 1920. Additionally, two million Jews, mostly from Eastern Europe and fleeing religious persecution, arrived in the United States between 1880 and 1920. The number of new immigrants to the United States reached its apex for this period in 1907 when 1.3 million people immigrated here. The nature of immigration also changed during this time. For example, between 1880 and 1890, the five largest immigrant groups hailed from Germany, the United Kingdom, Ireland, Canada, and Sweden, while between 1890 and 1900 the top five originated from Italy, Austria/Hungary, Russia, Germany, and Ireland (Jasso and Rosenzweig, 2006). Regardless of their national origin, many of these newly arriving immigrants found employment in the rapidly growing manufacturing sector of the U.S. economy. Post-1920 to Present

After 1920, immigration to the United States would decline precipitously. While a number of factors such as the outbreak of World War I, the Great Depression of the 1930s, and World War II in the late 1930s and early 1940s contributed to this decrease, the influence of newly implemented and restrictive immigration policies c­ annot be overlooked. Prior to 1875, immigration to the United States was largely unrestricted. However, in 1875 a series of immigration policies that, at first, intended only to limit the kinds of people who would be allowed to enter the newly developing country were put in place. For example, the Immigration Act of 1875 prohibited the entry of prostitutes and criminals, while the Chinese Exclusion Act of 1882 banned the immigration of Chinese laborers and prevented Chinese individuals from becoming naturalized ­citizens (Jasso & Rosenzweig, 2006). The latter policy resulted primarily from the belief that Chinese laborers were responsible for depressing wages and increasing unemployment. While the Chinese population was relatively miniscule at the time, making up less than one-tenth of 1% of the total U.S. population, this legislation helped alleviate concerns of American-born workers as well as reduce apprehensions about the effect of Chinese immigration on the racial purity of whites. Following this legislation, a multitude of laws were enacted over the next 40 years or so, which increased the number of “inadmissibles” based upon qualitative characteristics. These policies accomplished such objectives as barring the immigration of contract labor, ­impoverished individuals, illiterates, those with certain contagious diseases or who were



Chapter 14  •  Coming to America    229

deemed physically or mentally defective, unaccompanied immigrants under the age of 16, Africans, Japanese, and other Asian immigrants (Jasso & Rosenzweig, 2006). Beginning in 1921, quantitative restrictions (in addition to the aforementioned qualitative restrictions) became increasingly more common. The first such law (aptly named “The First Quota Law”) was enacted in 1921 and limited the number of ­people who could migrate to America in any given year. Specifically, this act stipulated that in any particular year the number of immigrants from Eastern Hemisphere nations would be limited to no more than 3% of the total number of immigrants from that specific country already residing in the United States (Jasso & Rosenzweig, 2006). This law was followed in 1924 by the National Origins Act (also known as the Immigration Act of 1924), which reduced the immigration quota from 3% to 2% of the foreign-born population while entirely banning the immigration of Asians (Jasso & Rosenzweig, 2006). Additionally, this law changed the method for calculating these quotas. Instead of basing quotas on the number of foreign-born people residing in the United States, new quantitative restrictions would be calculated according to the total number of people of each nationality, regardless of whether they were born inside or outside of the United States. The practical effect of this change was that it increased the number of visas for those from the Great Britain and Western Europe while restricting the immigration of Southern and Eastern Europeans (U.S. Department of State, 2015). One unfortunate consequence of this act was that it made it extremely difficult for Eastern and Southern Europeans, particularly Jews, to come to the United States prior to and throughout WWII, during which time six million Jews were exterminated by the Nazis. These laws were born in part from escalating fears among the public that individuals from Southern and Eastern Europe were failing to become acculturated to American society and represented a threat to the well-being and future of the United States. In fact, it was not uncommon at the time to believe that these individuals suffered from genetically inherited moral and intellectual defects. To make matters worse, such fears and misperceptions were supported by severely flawed research of the time that suggested that intelligence was innately related to one’s racial and ethnic identity and that it was possible to create racial rankings based on IQ scores achieved on culturally biased IQ tests. Moreover, it was thought that such genetic deficiencies would be passed on to the American population through sexual relationships, eventually diluting the moral and intellectual character of the entire country (Gould, 1996). Over the next 30 years, a number of additional policies were enacted that further refined immigration policy in the United States, creating additional restrictions and at times generating opportunities for others. However, it was not until 1952 with the passage of the Immigration and Naturalization Act that the next major revision to U.S. immigration policy took place (Jasso & Rosenzweig, 2006). Also known as the McCarran–Walker Act, this bill retained much of the previously established quota ­system while also removing some of the past racial barriers to immigration. For example, this bill ended the ban on Asian immigration (albeit assigning them an extremely small quota and one based on race rather than nationality) and eliminated gender and racial limitations to naturalization. The bill was not without controversy, however. Many, including then President Harry S. Truman, criticized the bill due to its implementation of greater screening procedures and for prohibiting the immigration of members of the communist party (Jacobson, 1997). Others condemned the law as continuing to unjustly benefit those from Western and Northern Europe. In fact, this legislation would result in 85% of visas allotted each year going to those of northern and western descent. For some, this was simply an attempt to preserve a narrow conception of what it meant to be an “American” and what an “American” should look like. President Truman would go on to veto the bill, believing it to be discriminatory and, in fact, characterizing the bill as un-American. Congress, however, would eventually override the veto with the law going into effect later that year (U.S. Department of State, 2015).

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It should be noted that none of these bills placed restrictions on immigration from Western Hemisphere nations. This did not occur until 1965 with the passing of the Immigration and Nationality Act, which abolished the use of the national-origin quota system and committed the United States to accepting immigrants from all countries in almost equal numbers (Gjelten, 2015). The new law largely prohibited issuing immigration visas based on such characteristics as sex, race, nationality, and place of birth. Instead, the issuance of visas would occur according to preference categories with an emphasis toward family unification and labor force needs. To be sure, quantitative ­limits remained and, in fact, were expanded to include a limit on the number of immigrants from Western Hemisphere countries. Specifically, the Immigration and Naturalization Act of 1965 limited the number of visas for Eastern Hemisphere ­immigrants to 170,000 per year and 120,000 per year for migrants from the Western Hemisphere (FitzGerald & Cook-Martin, 2014). The subsequent effect of this law was in all likelihood underestimated. In fact, Gjelten (2015) maintains that no other twentieth-century law altered the demographic nature of the United States so drastically. According to Gjelten, after its passage, the proportion of immigrants of European and Canadian lineage decreased from 60% in the 1950s to 22% in the 1970s, while the proportion of Asian immigrants increased from 6% in the 1950s to 40% in 2013. Subsequent to the implementation of the act in 1965, Latin immigration to the United States also increased quite dramatically. The role that this law played in this is unclear. In fact, because this is the first piece of legislation to place restrictions on Latin immigration, one might have expected a reduction in the numbers of Latino immigration. Regardless, what is known is that between 1950 and 1960 about 460,000 documented immigrants from Latin America migrated to the United States. This number grew to approximately 4.2 million during the 1990s, which accounted for about 44% of the total number of immigrants arriving during that decade. Undocumented immigration from Latin countries also rose from almost zero in 1965 to 9.6 million in 2008. Nearly two-thirds of the documented immigrants and three-fourths of the undocumented migrants came from Mexico (Massey & Pren, 2012). In fact, between 1965 and 2015 more than 16 million Mexicans immigrated to the United States, representing one of largest waves of immigration to the United States (Gonzalez-Barrera, 2015). There were an estimated 11.7 million Mexican-born individuals residing in the United States as of 2014 with about 5.6 million classified as unauthorized or undocumented and representing about 49% of the total unauthorized population (11.1 million) in the United States (Krogstad & Passel, 2015). Most recently, the United States has experienced a decline in the number of Hispanics and Latinos immigrating to America. For example, between 2009 and 2014 it is estimated, using the best available data, that one million Mexicans have returned to Mexico from the United States, while during the same time period only 870,000 Mexicans came to the United States, resulting in a net loss of about 140,000 Mexicans. Furthermore, migration between the two countries is at its lowest point since the 1990s (Gonzalez-Barrera, 2015). These changes are likely due in part to decreased economic opportunities in the United States as a result of the Great Recession, greater border security, and decreasing violent crime in Mexico.

Political Rhetoric, Media Representations, and Anti-Immigrant Attitudes2 In a subsequent chapter of this book, I illustrate the threats that immigrants are thought to pose and how these threats are represented in political discourse and popular media. Though it should be noted that in light of the latest U.S. presidential campaign, the 2

Some of this section appeared in the second edition of this book with contributions from Barbara Perry and Luis Fernandez (see Perry, Fernandez, & Costelloe, 2009).



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a­ nti-immigrant discourse has seemingly increased, particularly on the part of those vying for the Republican Party nomination for the 2016 presidential election. However, Donald Trump has been the most offensively vocal in his anti-immigration sentiments. Though lacking any authority on the matter, he has recently called for a ban on all Muslim immigration and a week later stated that Muslims “are sick people.” While stopping short of calling for an outright ban on Latino immigrants, Trump also has publicly proclaimed that many undocumented Hispanic/Latino immigrants are drug dealers, rapists, and murderers. In declaring support for anti-immigration policies, other Republican Presidential hopefuls have made the “immigration crisis” a focus of their platforms, including Mark Rubio and Ted Cruz, who both have personal histories intimately linked to immigration. Whether such stances are simply instances of fear mongering in an attempt to cater to public opinion, anxieties, and fear, or whether such sentiments reflect their true beliefs is not known, but they are troubling nonetheless. The media have been especially complicit in the demonization of immigrants. This has long been the case; however, today it appears that the role of media in ­structuring immigration discourse and public attitudes has significantly expanded. Through the use of technological developments and various mediums, contested definitions of undocumented immigration are readily accessible and widely distributed. Not only do newspapers and television news continue to provide extensive coverage of immigration concerns, but they are also represented in popular culture through such sources as books, movies, and televisions. Websites and blogs also provide forums for individuals and special interest groups, who tend to address the problem in the most narrow of terms, terms that best reflect their values, beliefs, and interests. What is even more striking is that supposedly objective news stations (and some not so objective) actually employ “personalities” such as Glenn Beck, who once hosted his own show on CNN, and Bill O’Reilly (Fox News) who hosts talk shows that are politically slanted and that ultimately play a major role in framing the immigration debate. These individuals can only be termed “personalities” as the term “newsperson” does not technically apply. “Newsperson” denotes a certain level of objectivity that is plainly absent in these cases. Instead, these individuals wear their social and political opposition to undocumented immigration as a badge of honor. In fact, it appears that they have taken on undocumented immigration as a personal crusade. Bill O’Reilly even goes so far as to bestow on himself the title of “culture warrior” (O’Reilly, 2006). These personalities and others cast undocumented immigration almost exclusively in negative terms, emphasizing and describing the perceived threats (i.e., economic, cultural, and criminal) that are posed by increasing unauthorized immigration. Mainstream news is also at times complicit in presenting sensationalized and negative images of undocumented immigration. There is no shortage of news reports showing unauthorized immigrants streaming over the border in the dead of night as the Border Patrol looks on helplessly. Porous borders are thus shown to be open floodgates, if you are to believe these stories. The images are dramatic in effect and instill fear and invoke outrage. They also, however, lack context. What is often missing from these stories are explanations as to why these people feel compelled to risk their lives crossing miles and miles of unforgiving desert terrain in deadly heat to come to this country. They ignore the dire personal, social, and economic circumstances that force them to leave their own country, and they ignore the pulls and enticements that bring them to the doorstep of the United States. In other words, media portrayals often ignore, and at times implicitly deny, the humanness of those who risk their lives for a chance to support themselves and their families. Another way media influences perceptions of undocumented immigration is through crime news stories that explicitly mention the “illegal” status of those who commit crimes. For example, a local police officer in Phoenix was shot and killed by an undocumented immigrant. The Phoenix newspaper noted in the article that “the gunman, an illegal immigrant who had been deported last year, fled after shooting” (Arizona

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Republic, September 19, 2007). This in fact became one of the focal points of stories about the incident, at times even overshadowing the tragedy of the death. The result has been an even greater firestorm against immigration. While the murder of a police officer is always dreadful and should be treated as such, these news stories are presented in such a way that they fail to provide a realistic view of the actual problem. Rarely, if ever, are stories like these accompanied by the obvious fact that legal residents kill the vast majority of police officers who are killed in the line of duty, and it is indeed a rather rare occurrence when an undocumented immigrant kills a police officer. Addressing the undocumented status of those involved in criminal activity undermines the reality that most immigrants who come to the United States lead law-abiding lives. While there has been a paucity of good research examining the link between immigration and crime, what has been done tends to suggest that the relationship between these two phenomena is either fairly small or nonexistent (see, e.g., Aguirre, Saenz, & James, 1997; Butcher & Piehl, 1998a, b; Hagan & Palloni, 1998; Martinez, 2006). Some researchers have even gone as far as to suggest that Latinos have a stabilizing effect in most communities (Martinez, 2006). In fact, many report crime, serve on neighborhood watches, and are a source of informal social control in their neighborhoods, therefore assisting law enforcement rather than hindering it. Media sources often omit these realities of undocumented immigrants in their stories. A backlash against immigrants is also reflected in public sentiments. Gallup’s annual poll on immigration issues found that, in 2014, 77% of Americans believed it was extremely or very important that the United States tightens security around the border to stem the flow of immigrants coming to America. On the other hand, 87% favored new laws that would allow immigrants already in the country to become U.S. citizens (Newport, 2015). However, this support came with a caveat that immigrants meet certain requirements including paying taxes, having a criminal background check, and learning English, reflecting common concerns that many immigrants represent an economic, criminal, and cultural threat. In terms of Muslims, 43% of Americans h­ arbor some prejudicial attitudes toward Muslims (Younis, 2015).

Crimmigration Raymond Michalowski The term “crimmigration” is a composite of the words “criminalization” and “immigration.” It was first coined by legal scholar Juliet Stumpf (2006) to capture the growing tendency in United States to apply the penalties and procedures of criminal law to problems of immigration. Crimmigration has two key characteristics. One is to define and punish an increasing number of violations of immigration law as crimes, even though many of these are actually violations of administrative rather than criminal law. A good example of this is Operation Streamline, a joint effort by the U.S. Department of Justice and Department of Homeland Security whose purpose is to “criminally prosecute individuals who illegally enter the United States through defined geographic regions along the Southwest border” (Department of Homeland Security, 2015). Under Streamline, large groups of undocumented border crossers in cities like Tucson, Nogales, San Diego, and El Paso are prosecuted and sentenced en masse every day to terms in prisons or jails prior to deportation (Partlow,

2014). The other key characteristic of crimmigration is to render increasing numbers of non-migration offenses such as petty theft, drug violations, or other street crimes as the basis for deporting migrants, including those with legal permanent residency in the United States (Stumpf, 2006). This growing intersection of criminal and immigration law is an important change in the use of law to manage migration. Until the late twentieth century, criminal law and immigration law were distinct legal categories. Acts that violated criminal law were considered crimes and subject to criminal penalties including imprisonment. Acts that violated migration rules, however, were handled under the administrative procedures of immigration law. While administrative penalties under immigration law could include fines or possibly deportation, the violator risked neither imprisonment nor the stigma of being a criminal (Aiken, Lyon, & Thorburn, 2014). As the trend toward treating migrants as criminals increased, it led to “uniquely harsh methods of regulating

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the lives of migrants” well beyond those that were typical of the civil enforcement of immigration law (Garcia Hernandez, 2015). One example of this in the United States is the incarceration of migrant women and children without papers in immigration prisons, even though they have committed no crime other than being in the United States without formal documentation (Hennessy-Fisk, 2015). This imprisonment of migrants violates both international standards and U.S. law governing the treatment of migrants, particularly child migrants (Human Rights Watch, 2015). A number of ­anti-immigrant organizations such as the Federation for American Immigration Reform and the Center for Immigration Studies promote the fundamentally incorrect idea that if people are in the country without papers, they are automatically lawbreakers who deserve to be incarcerated (Potok, 2009). The lack of documentation by those held in immigration prisons does not automatically make them “illegals.” Anyone who seeks asylum from life-threatening conditions in their home countries, as was the case with many of the young people and their parents who crossed the U.S.–Mexico border in 2014 and 2015, has an internationally recognized, legal right to be present in the United States (or any receiving country) until such time as their claim can be heard by an immigration judge (IJRC, 2015; UNHCR, 2015). The Department of Homeland Security’s practice of confining migrants without papers to near prison-like conditions even though no court has judged them to be criminals is a clear example of how crimmigration works. The tendency toward criminalizing migrants is not unique to the United States. Many countries around the world, particularly developed countries that are popular sources of refuge for migrants fleeing zones of poverty, disorder, and war, are increasingly using the tools of criminal law to punish irregular migrants, that is, people who enter countries without governmental approval. These moves toward increasing crimmigration are closely linked to the belief in these countries that they can achieve “security” by criminalizing dangerous “others.” This typically translates into criminalizing people whose race, ethnicity, or religion differs from the dominant class in the receiving country. In the United States, crimmigration largely targets Latino migrants, as Operation Streamline with