depicts an innocent White girl who has been taken captive by an unknown,

threatening man. She appears startled, which suggests that she does not know her
captor. While the image is not intentionally racist, it exploits concerns about
White female vulnerability to anonymous threats. The image is on countless posters
and websites that invite the public to combat the threat of “modern day slavery.”63
The framing of sex trafficking as modern slavery intends to communicate the
seriousness of the threat, equalizing it to chattel slavery in the United States.
Ironically, the modern-day slavery campaigns tend to ignore that White supremacy
was the underlying ideology that supported chattel slavery while leveraging White
supremacist ideals about victimhood and racialized threats. The focus of these
campaigns has been on increasing the law enforcement response to sex trafficking
and increasing criminal penalties for pimps and johns as sex traffickers. But as
Gruber notes, “the vision of enslaved young white girls” gives the campaigns a
sense of urgency (p. 27).
As Gruber discusses in Chapter Two: “In the late 1970s, activists and students came
together in ‘take back the night’ (TBTN) rallies to give voice to women’s shared
fear of prowlers lurking in the dark. TBTN rallies often occurred after high-
profile, if statistically rare, murders and rapes of women by strangers” (p. 43).
As Gruber explains, these efforts to “take back the night” focused on security-
oriented proposals that nonetheless bought into the narrative of vulnerable White
women besieged by threatening strangers (p. 43). Likewise, Gruber documents the
evolution of American domestic violence law through the 1980s to now, reflecting
the troublesome commitment to punishment even when evidence indicates that
punishment is ineffective at preventing domestic violence. Carceral domestic
violence activists:
publicized a one-dimensional story involving sexist male officers influenced by
chauvinist law and culture, who refused to arrest abusers because they believed
that abuse was acceptable, the woman deserved it, or the matter was personal.
Police empathy for abusers, the story went, remained unmitigated even when the
woman was beaten and bloodied. This narrative defined nonarrest as an exercise of
sexism, so that every arrest was an instance of gender justice, regardless of the
consequences. In turn, violent male police officers using violent arrest to control
violent men was not a pathology of a ‘fascist’ state. It was feminist. (p. 70)
Gruber further provides an illustrative example of the contradictions within
carceral feminism64 through the Brock Turner case (pp. 178–90). As is already well
known, Brock Turner was a Stanford University student, and his conviction for
sexual assault became a symbol for campus sexual assault.65 On January 18, 2015,
Brock Turner sexually assaulted Chanel Miller while she laid unconscious outside
the Kappa Alpha fraternity house on Stanford’s campus.66 Two graduate students
passed the scene and observed the sexual assault in progress.67 They apprehended
Turner and called the police, who arrested him.68 Turner was convicted of assault
with the intent to commit rape of an unconscious person, sexual penetration of an
unconscious person, and sexual penetration of an intoxicated person.69 He faced a
maximum sentence of fourteen years in prison.70 Turner’s sentencing judge, Judge
Aaron Persky, sentenced him to six months in the county jail and three months of
probation, as recommended by the Probation Office (p. 180). Turner was also
required to register as a sex offender for the rest of his life. This sentence was
widely criticized as being too lenient. Turner was transformed into the
prototypical predator. Judge Persky was accused of being biased toward the
privileged Turner, whom detractors claimed reminded Judge Persky of himself (p.
185). However, Judge Persky routinely followed the recommendations of the Probation
Office (p. 185).
Initially, carceral feminists portrayed Judge Persky’s lenient sentence as a threat
to women.71 They claimed that he was unable to deliver the sort of justice that
victimized women deserved (p. 181). He, like Turner, became a villain in the story
of women’s equality. And soon his portrayal as a threat to women’s equality meant
he was also a threat to racial equality. Carceral feminists claimed that the Turner
case reflected both a disregard for the seriousness of sexual assault, and the
disproportional nature of justice in this country. Feminists, led by Professor
Michele Dauber, searched for evidence that Judge Persky was less lenient when there
were Black or Brown defendants in his courtroom (pp. 179–83). This claim exploited
concerns about the unequal nature of justice in the criminal system to galvanize
support for Judge Persky’s removal. However, Judge Persky was a judge who
consistently granted lenient sentences — or rather sentences that appear lenient
within a system with excessively lengthy sentences.72 He generally followed the
recommendations of the Probation Office (p. 185). Public defenders supported him
during this challenge, concerned that his removal would contribute to the “culture
of mass incarceration [that] has warped our psyches into thinking that lengthy jail
or prison terms are always the answer to criminal behaviors.”73 Nevertheless, Judge
Persky was ultimately removed from the bench,74 and he was ordered to pay over
$161,825 in legal fees to Professor Dauber’s campaign.75 But the question remains
whether this removal reflects justice for feminism.76 Is the removal of a judge who
consistently sentences within the recommendations of the Probation Office
consistent with the progressive goals of social justice?
This case and others like it prompted Gruber to write this book, which builds upon
a body of scholarship that critically examines the connections between race,
gender, and punishment.77 Gruber’s prior experiences as a public defender
contextualize her unique insights about the harms of the criminal system. The
Feminist War on Crime lays bare the tensions between seeking punishment for harms
against women within a system that is stacked against marginalized communities. It
is a tension that has long resided within the feminist movement but is especially
important given the collective recognition that mass incarceration is one of the
most important problems for this generation to address.78 Judge Persky’s recall
undermines efforts to encourage judges to mitigate the collateral consequences of
the criminal system.79 The outrage about Turner’s conduct may have been warranted
because he harmed another person. But should the outrage against his conduct
automatically translate into the punishment of every person that happens to be
connected to his criminal case?
The Feminist War on Crime diagnoses the harms of the feminist script for
punishment. While the goal was to improve the lives of women by criminalizing
harmful conduct, mass criminalization has contributed to the breakdown of
communities and promoted a narrative that is both racist and patriarchal. The
suggestion that women are always victims who are waiting for the criminal law to
rescue them feeds into tropes about the helpless nature of women that are core to
patriarchy. It fits within that paradigm and has been so successful, in part,
because it complies within the existing dominant narratives about the nature of
women in need of rescuing. The script leans into these narratives that might later
be used to limit women’s rights. As Bernstein has noted, this narrative locates:
social problems in deviant individuals rather than mainstream
institutions . . . [and] seeks social remedies through criminal justice
interventions rather than through a redistributive welfare
state, . . . advocat[ing] for the beneficence of the privileged rather than the
empowerment of the oppressed. As such, this approach leaves intact the social
structures that drive low-income women (and many men) into patterns of risky
migration and exploitative informal sector employment, including those relatively
rare but very real situations that would rightly qualify as “trafficking” or
“slavery.”80
As Gruber notes, this narrative ultimately contributed to the “prosecutorial
achievements of second-wave feminism[, which] are numerous and include mandatory
arrest and no-drop prosecution for domestic violence, criminalization of
nonforcible sex, and prosecution-favoring evidentiary rules” (p. 44). This book
invites feminists to interrogate foundational questions about the methods and goals
of feminism and to reevaluate the dominant feminist script, which has advanced the
goal of punishment over improving the material conditions of women.
II. The Harms of the Carceral Feminist Approach
The feminist script for punishment relies on stereotypes about women, men, race,
and sexuality and has not allowed for more nuanced analyses of the intersectional
systems of oppression. As Gruber states: “There is a deeply ingrained American
punitive impulse, originating from the media and government’s relentless focus on
horrific criminality, that leads even progressive incarceration critics to advocate
for strict prosecution of those whom they see as the worst of the worst” (p. 9).
The effectiveness of carceral feminism has been due to its reliance on racist and
sexist stereotypes.81 It does not allow for a complicated analysis of the differing
forms of oppression that women encounter and the ways that these systems of
oppression intersect and diverge.82 That level of nuance slows down the media
spectacle and moral outrage that spark carceral impulses. As Professor Patricia
Hill Collins states, intersectionality provides the “critical insight that race,
class, gender, sexuality, ethnicity, nation, ability, and age operate not as
unitary, mutually exclusive entities, but as reciprocally constructing phenomena
that in turn shape complex social inequalities.”83 Professor Kimberlé Crenshaw
explains:
Where systems of race, gender, and class domination converge, as they do in the
experiences of women of color, intervention strategies based solely on the
experiences of women who do not share the same class or race backgrounds will be of
limited help to women who because of race and class face different obstacles.84
In reality, many victims do not fit within the mold of the ideal victim. Many women
do not want the State to intervene in their lives because they do not trust
government actors.85 Black, Brown, Indigenous, and other women and queer people of
color are accustomed to police who racially profile, stop and frisk, and harass
their communities.86 Feminists from these communities long warned about the harms
of relying on punishment to achieve feminist goals.
A. The Black Feminist Resistance
Many women who face intersectional subordination do not want additional
entanglement with the carceral apparatus. Immigrant women, especially undocumented
women, may be concerned that interactions with the police will eventually lead to
deportation.87 All women, including queer women, may be both victims and
perpetrators of violence against women.88 Likewise, many perpetrators are also
victims.89 They are not unidimensional villains who repeatedly prey on women.90
Most of them will not offend again.91 They are not all men. Carceral feminists
overlook many factors that complicate their desire to express their disapproval of
gender-based violence, often to the material degradation of women who do not fit
within the classic feminist mold of White, middle-class women.92 Gruber discusses
how feminists of color resisted carceral tactics:
Feminists of color, like [Shelly] Fernandez and [Bok-Lim] Kim, had argued
vociferously that minority women were differently situated from middle-class white
women, had different views of racism and sexism, and existed in a different
relationship with the state. Black feminists were particularly resistant to
policing as a response to minority women’s problems. Nevertheless, much in the way
antipatriarchy feminists insisted on the everywoman argument, many legal feminists
doubled down on their commitment to law enforcement . . . . (p. 62)
In fact, Black feminists long warned about the harms of incarceration. They
recognized the importance of an intersectional analysis that considers the harms of
the carceral system and the importance of improving the material conditions of
women of color. As Gruber discusses in Chapter Two, Black and Brown feminists
challenged the punitive approach they noticed within the domestic violence movement
(pp. 52–53). In 1977, the Combahee River Collective, a collective of Black women
feminists, published a collective statement about their political commitments.93
They stated:
One issue that is of major concern to us and that we have begun to publicly address
is racism in the white women’s movement. As Black feminists, we are made constantly
and painfully aware of how little effort white women have made to understand and
combat their racism, which requires among other things, that they have a more than
superficial comprehension of race, color, and Black history and culture.
Eliminating racism in the white women’s movement is by definition work for white
women to do, but we will continue to speak to and demand accountability on this
issue.
In the practice of our politics, we do not believe that the end always justifies
the means. Many reactionary and destructive acts have been done in the name of
achieving “correct” political goals. As feminists, we do not want to mess over
people in the name of politics.94
The Combahee River Collective called out the racism within the mainstream feminist
movement.95 As Richie notes:
Some aspects of the work to end violence against women have benefited from the
ideological shifts associated with the buildup of America’s prison nation. These
“benefits” include harsher punishments for so-called violent perpetrators,
technological advances to monitor threatening and illegal behavior, and a
fundamentally conservative public commitment to “law and order” that does not take
into account the roles that families play in social stability.96
In 1977, the Santa Cruz Women Against Rape published an open letter to the anti-
rape movement to contest its reliance on prisons and prosecution:
We, the members of Santa Cruz Women Against Rape, are writing this letter because
we are concerned about the direction the anti-rape movement is taking. . . . [W]e
would primarily like to address the issue of the relationship of the anti-rape
movement to the criminal justice system. . . . We do not believe that rape can end
within the present capitalist, racist, and sexist structure of our society. . . .
. . . .
. . . Attempts at “good relations” with the criminal justice system have served to
co-opt our movement, and have led to the belief (or hope) that the criminal justice
system can solve the problem of rape. Yet, the sexist and racist nature of the
criminal justice system only makes the problem worse.
We are opposed to the criminal justice system orientation of many anti-rape groups
for a number of reasons.97
These open letters to the mainstream feminist movement illustrate that various
feminists recognized the harms of a carceral approach to feminism before many of
the excesses of the feminist war on crime occurred.
Despite these warnings from various feminists since the 1970s, the hunger for
punishment became a defining feature of carceral feminism. In the Introduction,
Gruber tells the story of one of her cases as a public defender (pp. 1–5). Her
client, Jamal, was charged with domestic violence after a dispute with his partner,
Britney. Despite calling the police on Jamal, Britney had concerns about moving
forward with the case. Jamal and Britney shared a child and were living together in
the Lincoln Heights housing project. A young female advocate on the case instructed
Gruber not to communicate with Britney and proceeded to prosecute Jamal over
Britney’s protests. The young family was considerably worse off because of the
prosecution. Britney and Jamal remained together but struggled to pay for a baby
and an apartment they ultimately lost because of Jamal’s conviction. The case
initiated a series of cases that they would have to face through the years, none of
which was for domestic violence and all of which exacted an immense toll. While
feminists vigorously advocated for mandatory arrests and prosecutions for cases
like this, it is not entirely clear that this outcome was the best one. As Gruber
discusses, solutions that address the material concerns of the family, such as the
provision of living wages and affordable housing, would have gone a long way to
improving the conditions that exacerbate domestic violence (pp. 194–95). This case
illustrates that there appears to be a major disconnect between feminist advocacy
and feminism’s articulated goals.98 Punishment is unable to realize a feminist
vision that improves the lives of women in a meaningful way.
Along the path to women’s equality, the urge to punish and shame has taken priority
over materially improving the lives of all women.99 One might presume that gender
equality could be measured by the amount of punishment that a carceral feminist is
able to secure for a given act of violence against women.100 Each year in prison is
equivalent to a unit of dignity and value within a woman’s life.101 So leniency in
this context is the language of patriarchy.102 The system is too lenient, and any
suggestion that leniency is ever appropriate fails to feed into the moral outrages
that carceral feminists benefit from.
B. Expression over Materiality
The Feminist War on Crime convincingly argues that carceral feminists have largely
ignored the harms of punishment by emphasizing the importance of the law’s role in
declaring communal values through the expressive function of criminal law (p. 107).
Legal philosopher Joel Feinberg argued that criminal law plays an important role in
expressing the values of a community.103 By criminalizing conduct, the community
expresses its collective morality.104 Feminists have adopted expressive arguments
about the criminal law to argue about the importance of “sending a message” that a
specific type of conduct is harmful by criminalizing that conduct (p. 107).
However, expressive theories of the law rarely acknowledge that there are multiple
publics, with varying degrees of power and access to the deliberative process of
determining what is moral and acceptable. This neglect means that criminal law’s
expressive value is limited by the systemic marginalization and isolation of entire
communities from full political participation.105 These communities often are those
same communities most harmed by the very act of criminalization.106 As a result,
elite members of the public get to proclaim the community’s values and then
facilitate which people can be arrested and placed in cages for failing to comply
with these communal values. An even more skeptical account suggests that the
exclusion of marginalized community members from the deliberative process is
intentional or a core feature of the process of making criminal law, because social
elites perceive marginalized people as threats. So expression is merely another
tool for subordination.
Nevertheless, feminists have been wielding the power to express themselves through
punishment. Unfortunately, the harms of criminalization are generally an
afterthought in the attempts to wield the criminal law as a sword against the
perceived threat of patriarchy. The law’s power to punish and express that certain
conduct is immoral has taken precedence over the law’s role in reproducing White
supremacy, ableism, and economic subordination. Expression and the symbolism of
punishment have been the paramount goal within carceral feminist movements to
punish away threats to women.107 The importance of sending a message about violence
against women has erased the violence of the criminal legal system itself.108
As feminists have utilized the expressive function of criminal law, they have found
strange bedfellows in social conservatives (p. 102). With regard to domestic
violence, feminists have advanced the use of the penal system to punish men who
engaged in domestic violence. The system has contributed to the use of coercive
tactics to force victims to testify against the accused even when they prefer not
to do so.109 It has contributed to the breaking up of families.110 With regard to
sex work, radical feminists have partnered with social conservatives to abolish
pornography and prostitution.111 They have advocated for the criminalization of
pornography because it represents violence against women and have called for the
prosecution of johns and pimps as sex traffickers.112 They paint a grim picture of
sex work and rely on loose data and hyperbole to present the most terrifying
accounts of the industry as representative of sex work.113 Social scientists have
widely criticized the problematic manipulation of unreliable data that radical
feminists advance as serious research.114 Nevertheless, these provocative accounts
have been influential in advancing the story of universal victimhood within the sex
trades.115 Pimps are terrible men who should be criminalized like sex
traffickers.116 Sex-work clients are exploitative johns who manipulate women and
who are sex traffickers.117
For example, in December 2016, the National Organization for Women (NOW), a
preeminent feminist organization,118 wrote a brief opposing the decriminalization
of sex work, based on heteronormative arguments about the sanctity of marriage and
procreative sex.119 The brief suggested that traditional relationships should be
protected120 and made no mention of race, class, or the obvious harms of the
criminal legal system that stem from criminalizing sex work.121 It didn’t even
claim that sex workers’ conduct should be decriminalized while clients’ conduct
remains criminalized.122 Instead, these feminists fought for the carceral
system.123 This organization had diverse women at its founding,124 but somewhere
along the way it has prioritized the interests of White, middle-class women
although it remains committed to the optics of inclusiveness and diversity. Like
many feminist organizations, it has failed to prioritize intersectional analysis to
the extent of allowing it to shift priorities, abandon previous commitments, and
acknowledge the harms of former techniques. Instead, the commitment to punishing
sex work has allowed NOW to adopt arguments that would be harmful to many of the
women its leadership claims to protect. Queer women or women who choose not to have
children may have relationships worthy of less constitutional protection if NOW’s
legal arguments about the special value of procreative sex are taken seriously. As
for its conception of sex work, there are no sad, lonely women and men who choose
to pay for intimacy. Only predators, and more punishment is needed to punish them —
even if it means a few women need to be thrown in jail along the way. But, as
Gruber highlights in the book, these alliances with socially conservative groups
undermine the values that many feminists claim to hold dear (pp. 102–03).
Although it is not clear that criminal expression was the most appropriate mode of
realizing the goals of feminism, the symbol of criminalization has come to
represent success even when criminalization is unable to achieve the goal of
improving the lives of women — the presumed goal of feminism. The material
conditions that lead to domestic violence for poor women, such as lack of
employment or affordable housing, are the same or worse for many women.125 Women
have experienced some of the worst harms of the feminist war on crime, including
loss of familial income, disruption to support networks following intense
surveillance and policing of marginalized communities, and surveillance under the
family regulation system. These harms should matter to all feminists. They should
be centered in discussions about strategy and political tactics.126 Too often, the
voices that can reflect on these issues are excluded from the exclusive strategy
conversations within feminist circles, or they are ignored when they are
present.127 When feminists express viewpoints that counter aspects of the feminist
script for punishment, they are demonized as enemies to the cause or portrayed as
mind-controlled victims of patriarchy.128
Admittedly, feminist activism has improved the lives of women throughout the United
States and worldwide, contributing to better workplaces, home lives, and political
lives for women.129 Through this activism, women have achieved the right to
vote.130 The culture of the workplace has fundamentally shifted into a space that
is more welcoming of women.131 The harms of domestic violence are well known, and
the private spaces that women have historically occupied have been granted the same
protections as other spaces.132 Overt discrimination is prohibited,133 and the
harms of campus sexual violence are notorious. Nevertheless, feminists have tended
to fall short by adopting strategies that are harmful to many women and by failing
to center and prioritize intersectional frameworks in their analysis that would
have made their strategies inclusive. Accordingly, the gains of feminism have
primarily accrued to White elites at the top of the feminist order.