CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, June 28, 2019

Aviram on Progressive Punitivism

Hadar Aviram (University of California, Hastings College of the Law) has posted Progressive Punitivism: Notes on the Use of Punitive Social Control to Advance Social Justice Ends on SSRN. Here is the abstract:
This essay examines the emergence of an academic and popular discourse that advocates turning the cannons of the punitive machine against the powerful. I identify this discourse as “progressive punitivism”: a logic that wields the classic weapons of punitive law — shaming, stigmatization, harsh punishment, and denial of rehabilitation — in the service of promoting social equality. This logic has permeated much of the political conversation on the progressive left in the United States, and while it has gained some hold in academic discourse, particularly in the legal field, its core lies in the leftist social media arena, where it has enjoyed considerable popular appeal in the last few years. Progressive ire before, and especially after, the election of Donald Trump to the presidency, has flared around issues such as police accountability for use of excessive force, especially against people of color; the proliferation of sexual harassment, assault, and abuse, by the powerful, with too little accountability; and the too-lenient legal response to expressions of racism, xenophobia, corporate/political malfeasance, and other forms of discrimination, social hatred and exclusion.

Progressive punitivism operates within the criminal justice system, in the context of a call to hold people perceived as belonging to powerful groups accountable for their actions. However, it also operates throughout the realm of social media and public opinion, often compensating for the perceived lack of formal consequences against the powerful with intense bursts of informal social control, such as online shaming and excoriation. These two realms — formal and informal social control — frequently cross paths in progressive punitivism in complex ways, often yielding informal, democratized punitive power to those perceived as powerless within the formal apparatus. 

In this paper I attempt to sketch the main features, origins, and consequences, of the progressive punitive perspective. I start with an overview of the main characteristics of progressive punitivism: turning the existing punitive machine on the powerful, focusing on identity and group politics as an epistemological resource for identifying perpetrators, the concept of “ratcheting up” punishment, the preoccupation with victim voices, and the idea of punishment as a catalyst for social change. I then review the three key areas in which ideas of progressive punitivism have gained visible popularity in recent times: police abuse of force, sexual assault (carceral feminism and the #metoo movement) and hate crimes. I also engage in a brief discussion of the interplay between the call for formal consequences for lawbreaking and the engagement in intense punitive expressions of informal social control, particularly via shaming campaigns on social media. I then expand the theoretical framework by interrogating the intellectual and cultural sources of progressive punitivism, examining radical and critical criminology, second-wave feminism, and Communist China as a surprising intellectual parallel. I conclude that the most plausible source of progressive punitivism is conservative punitivism; Americans of all political stripes, I explain, have been steeped for decades in a framework that sees criminal justice as the quintessential solution for moral problems and victims of crime as the premier moral interlocutors. American criminal justice in the late 20th and early 21st centuries has had a deep impact on the national psyche, and progressive punitivism is, upon reflection, an application of this mentality, rather than a deviation or revolutionary reinterpretation of it. The essay ends with a discussion of the discontents of progressive punitivism and the dangers of cottoning to it as a viable strategy for social justice reform.

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