The Criminal Legal System: Alternatives and Reform Through the Lens of Survivor Advocates
By Tunisia Owens & Nishara Gunasekara
Sep. 16, 2021
Domestic violence affects everyone, across racial and ethnic backgrounds, gender expression, sexual orientation, and socioeconomic levels. That being said, domestic violence overwhelmingly affects communities of color and women. Specifically, Black, Indigenous, and Hispanic 1 women are subject to domestic violence at higher rates than White women (source).
Interlocking Systems of Oppression and Violence
Understanding why women of color suffer disproportionately from abuse requires a look into how racism and sexism, among other things, operate within a given community. For example, in many Black communities, the issue of racism is prioritized over sexism (source)2. When thinking about domestic violence then, which is largely a gendered crime, Black women can often feel obligated to dismiss gender-based issues when doing so jeopardizes a Black community’s image in the “public eye” and risks harmful (potentially fatal) contact with law enforcement.3 Contextual factors like culture, religion, immigration, and colonization similarly help to explain why women of color experience domestic violence at higher rates than White women.
At the nexus of domestic violence and the criminal legal system is the relationship between police and communities of color. Communities of color, particularly Black, Indigenous, and Hispanic, have disproportionately borne the brunt of police brutality and aggression. For example, proportionately, Native Americans are the most likely racial group to be killed by police (source). Native American men are “imprisoned at four times the rate of White men, and Native American women at six times the rate of White women (source).” This biased policing has roots in colonialism and white supremacy, which can be traced back to the systemic subjugation, mutilation, and elimination of Native Americans by European colonizers during the 15th century and onwards. We can similarly trace the institutionalized roles and power of police back to 17th century slave patrols in the U.S. (source).
In many ways, our modern criminal legal system remains influenced by America’s colonialist, white supremacist, and racist history. We continue to see manifestations of these oppressive roots in both the biased policing tactics aimed at as well as justice outcomes for communities of color. (source 1, source 2).
1. [Authors have opted to use the same language of the original quotation or language used in Studies. Terminology that may be considered out-of-fashion (Hispanic, Asian, Black, White, Minority) are not meant to offend, but are to be consistent with the literature cited throughout this piece.]↩
2. [Black feminists have argued that despite claims to the contrary, racism cannot and should not be prioritized over sexism. Black women's unique experience is intimately related to their positionality in this society (source).]↩
3. [Sociologist, Patricia Hill Collins, argues in Black Feminist Thought that Black women often experience interlocking systems of oppression that cannot be pulled apart. Rather the entire Matrix of Domination must be dismantled.]↩
The Criminal Legal System and Domestic Violence
Some may be inclined to think that the relationship between police and domestic violence survivors is an exception to law enforcement’s history with communities of color. Survivors need protection from their abusers and police protect the survivors, right? Unfortunately, the realities of sexism, racism, classism, etc. continue to operate against survivors, predominantly survivors of color, even during instances of domestic violence. Black and other marginalized women are more likely to be criminalized, prosecuted, and incarcerated for trying to “survive the violence in their own lives” (source). The likelihood of criminalization is further exacerbated when socioeconomic status is accounted for: low-income women are disproportionately impacted by mandatory arrest policies for domestic violence (source). Further, women, in general, are also more likely to be severely punished with longer prison sentences for protecting themselves against their abusive partner or trafficker. While women are inside, they are also unlikely to receive treatment for their trauma related to the abuse and exploitation (source).
This can be partially explained by the influence of a white male-dominated criminal legal system. The criminal legal system is but one off-shoot of the greater network of systems at play that were created to assist the evolution of civilization. Such systems include our three-branch government structure, capitalism, and social services- all of which were developed to largely benefit and enshrine the white male identity. Looking at the history of our government, economy, and welfare system, we find that these public institutions were created during a time when the Black community was systemically forbidden from participating freely. For example, Settlement Houses in the United States, some of the earliest forms of established charities and volunteer sites were segregated (source). Even as systems were developed to assist the evolution of civilization, we must remember that these systems were really to assist the evolution of some and desist that of others.
Looking at the criminal legal system as another off-shoot of a network of systems historically enshrined in the white male identity then, we can start to identify how the power of the law has been weaponized against survivors time and time again to not only reassert control over “certain” bodies, particularly those of women, color, different abilities, and poverty, but also to preserve the freedom of “others” (White males).
With all of that being said though, the issue of domestic violence and the needs of survivors continue to be intimately tied to the powers of the State and our criminal legal system. From protective orders, to district attorneys, to calling 911, survivors’ options for safety and protection outside of our criminal legal system is limited. Employing an intersectional analysis to the oppressive systems that domestic violence survivors are often regularly interacting with is the only way to elucidate the obstacles to be overcome in creating a more survivor-centered criminal legal system. The complexities and challenges highlighted by employing this analysis is supported by what plays out in front of us in real life. These real life consequences of not only our nation’s history, but also the lack of intersectionality in the solutions we build around criminal legal reform and public safety are what domestic violence organizations like ours, Family Violence Law Center (FVLC), are often responding to reactively and proactively.
Black Codes and Black Lives
The Reconstruction Era of American History with the infamous Black Codes, provides insight into how mass incarceration as a tool of public safety is grounded in anti-Black racism. The Black Codes were laws instituted in the post-Civil War south to ensure that the way of life under slavery was preserved.
“The codes required that blacks sign annual labor contracts with plantations, mill, or mine owners. If African Americans refused or could show no proof of gainful employment, they would be charged with vagrancy and put on the auction block, with their labor sold to the highest bidder.” (source)
Moreover, these Black Codes had a negative impact on future generations of Blacks using civil conscription of Black children as laborers. Carol Anderson describes the horrific conditions in her book, White Rage: “More galling yet was a provision whereby black children who had been sold before the war and hadn’t yet reunited with their parents were to be apprenticed off, with the former masters having the first right to their labor.” (source) It is through an equity lens that we recognize mass incarceration, the school-to-prison pipeline, the criminalization of poverty, and gentrification as “not new” technology. These forms of oppression have been part of maintaining the status quo: keeping Black folks in their place while simultaneously keeping landowning White men in power and feeling ‘safe.’
The uprisings and protests that occurred in the summer of 2020 following George Floyd’s murder by police ushered in a discussion that had been boiling for some time. The Black Codes during the Reconstruction Era of U.S. history were the “legal” means utilized by southern states to eliminate access of former slaves to political, social, and economic power. The brutal violence used against African Americans by this country under the cover of governance and legal structures maintained the infrastructure of white supremacy and increased its wealth using free Black labor. Floyd’s murder captured on cellphone video was an outrage of epic proportions, and his death along with thousands of others in U.S. history was part of a continuous assault on our humanity.
The Work of Engaging in Cross-Movement Advocacy
The murders of George Floyd, Ahmaud Arbery, Breonna Taylor, and countless others ignited one of the most pivotal discussions in our nation’s history around police and criminal legal reform. As survivor advocates, it is not only incumbent upon us to take part in these discussions, but to also do the work of looking inward as an organization to understand how our values are represented in who we are as a team. We, at FVLC, took up the charge, with a rigorous evaluation of what racial justice actually looks like within the organization’s departments, management levels, and Board level. We developed a Diversity Equity and Inclusion committee to work on a plan and set goals for the organization. One of the major highlights of that work was the need to integrate and uplift survivor voices into all aspects of our work, particularly in our advocacy work.
We also wrestled with the notion that public safety is bigger than the laws that protect the one-percent, using unlawful means. Police officers have been misused as agents of the state to enforce inequitable policies for decades, and that had to be a central part of the discussion. FVLC, as an organization, supports the agency of survivors and their right to make choices about their own safety, including the decision to press charges or remain in relationship with an abusive partner. FVLC’s mission is broader than providing crisis services to survivors. This agency advocates for services that go beyond ensuring physical safety and therefore requires a bigger commitment from public systems to survivors than just the freedom from violence. FVLC’s advocacy, grounded in anti-racist, anti-poverty, gender-equity values requires a commitment from public agencies, elected officials, and the government that our communities are fully equipped with access to safe affordable housing, healthy food, healthcare, and wellness services (to name a few) to ensure true safety.
In FVLC’s internal discussions about how our agency could effectively respond to Floyd and others’ murders and the ongoing protests, we recognized that we have to carefully consider our role as advocates for survivors who live in the community. On the one hand, we regularly work with law enforcement agencies to assist survivors during some of the worst moments of their lives. At the same time, intervention in intimate forms of violence often requires a delicate balance between understanding the interplay between structural racism, systemic oppression, and the gender-based power imbalance that accompanies domestic violence/sexual assault. There are no easy solutions to these challenges, but we begin and end our work with supporting survivors in making the choices for their lives that they can live with and manage in their healing process.
We are also a legal services organization and advocate on behalf of our clients within legal structures such as the criminal legal system, the family court system, and the civil court system. Our clients have needs that go beyond the outcomes that can be resolved within these structures and that is why we participated so diligently in Oakland’s Reimagining Public Safety process with other gender based violence provider organizations. Domestic violence and other forms of violence against women are often overlooked in public discourse on public safety. FVLC recognizes that women who are returning citizens from the carceral system are often lumped into re-entry programming that is insufficient and ill-equipped to handle the circumstances for women who may be survivors, homeless, mothers, and highly traumatized. It was through participation in this Reimagining process that voices of survivors could be lifted up and those experiences included in re-shaping how we think about safety. Survivor voices needed to be included in the process of resolving these community challenges. When our community considers how we offer alternatives to mass incarceration and how we respond to violence, it is not only the public displays of violence that must be considered. There must also be room left to contemplate how to respond to the forms of violence that were kept private and hidden. How do we truly make a victim whole? How does a system hold an individual accountable when what was taken is intangible? What outcomes are just for a family torn apart by the sexual assault of one sibling by another? FVLC seeks to use an intersectional lens to not only improve reform movements seeking to answer these questions, but to also assist survivors in rebuilding their lives in a safe and harmonious fashion.
We, as the authors, challenge the notion that there is only one right way to address violence and that is by perpetrating more violence. Mass incarceration has not provided safety to survivors. According to the Bureau of Justice Statistics (BJS), half of women incarcerated in jails and prisons (a much higher percentage than the general population) had been abused before their imprisonment. Moreover, in another BJS study, it was found that the programming in jails and prisons where women are housed is severely limited with fairly long waiting lists. As survivor advocates, to challenge notions of mass incarceration and engage in reform of our criminal legal system is to radically and persistently undo the built-in oppression that threatens community and interpersonal safety. At the same time, we must recognize that healing, safety, and protection for survivors does not start or end with the criminal legal system. At FVLC, we are intimately familiar with those survivors who choose to not engage with the criminal legal system. In cases like this, we pool our resources and imaginative thinking together to create the safety and protection survivors want and need, outside of the criminal legal system. We do this because we believe in supporting a survivor’s autonomy and right to lead their own healing.
However, within or outside the system, effecting change for survivors also requires an intention around ideas of restorative and transformative justice. For survivors of sexual assault, how does a survivor advocate, a criminal legal system, or policy restore or transform a survivor when something so intangible has been taken away from them? Beyond that, what is it exactly that we are seeking to restore or transform? Violent acts against a person are irreversible. Their impacts may vary, but the presence of them do not. For many survivors, the impacts of generational trauma, violence, poverty, etc. that underpin the saying, “hurt people hurt people” and the solutions currently offered under restorative and transformative justice movements do not go far enough for them. [j11] Just as locking an abuser up may not help survivors feel safe, reconciliation interventions between an abuser and survivor may not either.
This is not to undermine the restorative and transformative justice movements, but rather to interrogate our own understanding and assumptions around “justice” for survivors. Just as we hold space for survivors who choose to engage with the criminal legal system in their process of healing, we must also hold space for survivors who do not see themselves in the restorative and transformative justice movements. In that sense then, as we seek to find alternatives to the criminal legal system, we must be open to finding alternatives to restorative and transformative justice.