K9 Bane was shot and killed near the intersection of Tulare Avenue and Palm Street while attempting to apprehend a suspect following a vehicle pursuit.
The pursuit began after another officer…
K9 Bane was shot and killed near the intersection of Tulare Avenue and Palm Street while attempting to apprehend a suspect following a vehicle pursuit.
The pursuit began after another officer…
The Australian gamer arrested after allegedly assaulting his pregnant partner during a live stream while their two young children screamed and cried says it “won’t happen again.” Luke Munday, 26, was arrested just before midnight on Sunday, about three hours after he could be heard on his livestream allegedly getting into a violent fight with…
Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame. About four and a half years ago, here at SCOTUSblog, commenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with […]
Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.
About four and a half years ago, here at SCOTUSblog, commenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.
One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound.
Justice Clarence Thomas noted more than two decades ago that the Supreme Court’s “Establishment Clause jurisprudence is in hopeless disarray.” More recently, he has reported that it is “in shambles.” The late Justice Antonin Scalia had pronounced a consonant, but more colorful, conclusion, comparing the so-called “Lemon test” that (some) justices (sometimes) apply in establishment-of-religion cases to a “ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” to frighten little children and attorneys alike. Commentators on the court’s work have used words like “incoherent,” “schizoid,” “chaotic” and “complete hash.”
Actually, as we were reminded by the establishment clause dog-that-didn’t-bark in last year’s Trinity Lutheran v. Comer decision, the justices have developed a fairly straightforward method for dealing with financial and other forms of cooperation for “secular” purposes between governments and religious institutions. Although they seemed to have fixed the doctrinal flaws that once prompted the late Sen. Daniel Patrick Moynihan to observe that “atlases” are “books of maps,” their tools for handling cases about signs, symbols, memorials, monuments, prayers and pageants are unwieldy and unreliable, and invite strange, silly challenges. Case in point: A few years ago, a federal court in Montana was asked to declare unlawful the presence on leased Forest Service land near the top of Whitefish Mountain Resort of a beloved, if somewhat kitschy, statue of Christ that was put up in the 1950s by the Knights of Columbus to honor World War II soldiers from the 10th Mountain Division. (“Big Mountain Jesus,” I am pleased to report, survived.)
It is (well past) time for the Supreme Court to come clean about what it is actually doing in “religion in the public square” cases and to scrap both the three-part Lemon “test” that bar examiners and lower courts are required to pretend is the relevant doctrine and the “no endorsement” rule that was grafted onto it by Justice Sandra Day O’Connor – a “refinement,” she called it – in the 1980s. After all, Justice Stephen Breyer’s controlling opinion in the 2005 Ten Commandments case, Van Orden v. Perry, had characterized Lemon as merely a “useful guidepost” for navigating judicial inspection tours of religious displays. And, in Town of Greece v. Galloway, the court’s 2014 decision reaffirming the permissibility of at least some legislative prayers, the Lemon “ghoul” did not shuffle. It is entirely reasonable, then, that another of the questions presented in American Legion is whether Lemon, Van Orden, Town of Greece, “or some other test” should be applied to cases involving a “passive display incorporating religious symbolism.”
Applying Lemon-plus-“no endorsement” – with “due consideration given to the Van Orden factors” such as the monument’s “placement, its physical setting, and the length of time it remain[ed] unchallenged” – a panel of the U.S. Court of Appeals for the 4th Circuit concluded (over a dissent) that the “display and maintenance” of the Bladensburg Cross violates the establishment clause. The court conceded that the cross survives the “fairly low hurdle” of Lemon’s first “prong” because “[g]overnment preservation of a significant war memorial is a legitimate secular purpose.” However, after a “detailed factual analysis of the Cross, including its meaning, history, and secularizing elements” and “the appropriate factors under Van Orden[,]” the majority pronounced that a “reasonable observer would fairly understand the Cross to have the primary effect of endorsing religion.” What’s more, the cross failed the third Lemon requirement as well, by creating “an excessive entanglement between government and religion.” This “entanglement” exists because, first, the government has spent and plans to spend money on maintenance and restoration and, second, the display “aggrandizes [sic] the Latin cross” and uses the “hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments in the park, but also excludes all other religious tenets.”
Now, it seems unlikely that the Supreme Court agreed to hear this case for the limited purpose of what court-watchers call “fact-bound error correction” or to save this particular memorial. That said, even a court content with the state of its public-religion precedents would have good reasons to reverse the 4th Circuit’s ruling. First, assuming for present purposes that the Constitution not only authorizes but requires federal courts to – taking into account, and applying “legal judgment” to, things like the sufficiency of officials’ efforts to prevent bushes from blocking the plaque listing the fallen soldiers or the fact that the American Legion uses a “Christian prayer manual” – divinate the presence of an equal-citizenship-denying, outsider-status-imposing, official “endorsement” of Christianity, the dissenting judge’s lighter-touch version of the exercise seems more consistent with the relevant precedents.
In addition, the panel misapplied, because it seems to have misunderstood, Lemon’s “no excessive entanglement” command, which exists to focus courts’ attention on the establishment clause’s historical heartland concern, that is, official intrusion into matters of religious doctrine, worship, polity and personnel. The lower court, however, announced that because the memorial “aggrandizes [sic] the Latin cross” and “excludes all other religious tenets” it therefore creates “excessive entanglement.” However, and putting aside the strange claim that the display of one religious tradition’s symbol “excludes” the “tenets” of another, this is simply a repackaging of the endorsement objection.
But again, correcting these mistakes would treat the symptoms, not the disease, and – even in this era of a small and shrinking court docket – is hardly worth the candle. Minimalism and incrementalism are well and good, but so are candor, clarity and coherence. As “Survivor” fans know, there are times for “big moves.” Let me suggest two.
First, the justices should reject the notion that mere “unwelcome contact” with a religious symbol or display constitutes an “injury” sufficient to satisfy the Constitution’s “standing” requirement. As Judge Frank Easterbook of the U.S. Court of Appeals for the 7th Circuit has explained, “offense at the behavior of the government” does not create standing. For too long – at least since Flast v. Cohen in 1968 – courts have indulged in a kind of “Establishment Clause exceptionalism” and allowed what one court called allegations of “squishy ‘psychological’ injury” to trump the important separation-of-powers values that standing rules exist to vindicate. Longstanding monuments and displays that incorporate religious symbols should not be uniquely vulnerable to a heckler’s veto.
Next, the Lemon “test” has long ceased to function as a test and instead now serves as an invitation (and an excuse) for judges to label their idiosyncratic impressions as the exercise of “legal judgment” and their prepossessions as the conclusions of the well-informed “reasonable observer.” It has not been applied — almost certainly because the justices realize it would produce unjustifiable and unwanted results — in decisions involving Ten Commandments monuments, legislative prayers, the Pledge of Allegiance and so on. It asks judges not only to ask questions they are not well equipped to answer but also to give disingenuous, jury-rigged answers to the questions they ask. It should be dramatically revised, if not abandoned altogether and replaced.
We should ask and expect of judge-made doctrines that they are workable, that they respect the nature of and limits on the judicial role in a democracy, and that they generate outcomes that are consistent not so much with this or that abstract “principle” that the religion clauses are said to embody or reflect but instead with – as the court appreciated in Town of Greece – the traditions, practices, and history of the political community that enacted and is constrained by them. Lemon does not measure up to these expectations.
Lemon’s “secular purpose” requirement is almost never outcome-determinative and, in any event, it is not clear why courts should invalidate the actions of politically accountable officials based on speculations about their motives or aims. The better course is to evaluate what the government has actually done, that is, to focus on objective outputs rather than subjective inputs. Scholars in many disciplines are increasingly sensitive to the fact that “secular” is a complicated and contested term. Whether a law’s assumed or assigned “purpose” is sufficiently “secular” to permit its enactment is a question that legislators, and voters, can answer as well as, and more legitimately than, judges. A rule against “excessive entanglement” is well-grounded in history and, correctly understood, appropriately keeps political authorities in their lane. As we saw in the Supreme Court’s unanimous Hosanna-Tabor v. Equal Employment Opportunity Commission ruling, though, the Lemon “test” is not needed – indeed, it was not even mentioned – to safeguard the rights of religious communities to choose their teachers and teachings or to prevent government interference in religious affairs. After decades of conflicting and confusing attempts to identify the indirect, religion-advancing “effects” of various religion-neutral funding programs, the court seems to have settled on the view that, as Professor Eugene Volokh once put it, “equal treatment is not establishment.” And, as for the no-endorsement “refinement” of the test, Professor Steven Smith is (and has long been) right: “As two-plus decades of experience attest, the doctrine cannot work as contemplated, and can only aggravate the problem its proponents want to address – namely, political division and alienation caused by religion. There comes a time when futility should be conceded.” That time has come.
Religion-and-public-life questions are important and (sometimes) hard. We (sometimes) disagree about these questions because they matter. Often, answering them requires balancing and trade-offs, because there are multiple values at stake, and in tension. And so, this side of heaven anyway, why isn’t the best way to answer them not through ahistorical judicial ruminations on symbols’ all-things-considered communicative content or psychological impact but instead through politics and the practice of civic friendship, with an appropriate respect for the traditions we inhabit and inherit?
An Uber driver in St. Louis used a translator app to demand money from a customer who had earlier left his phone in the man’s minivan, police said. A 28-year-old victim told police he set up a meeting with the Uber driver early Sunday after leaving his phone inside the man’s black 2004 Honda Odyssey….
An elderly woman was knocked down by a vehicle in a McDonald’s parking lot after chasing after the man who allegedly stole her Coach purse. The victim was taken to the local hospital, where she is being treated for her injuries. Police in Okeechobee, Florida, arrested suspect Charles Alton Jr. in connection with the incident.
In a breakthrough for criminal justice reform advocates, the Senate will vote on a federal sentencing and prison reform bill that has proved deeply controversial within the Senate Republican ranks. Debate could begin this week.
In a breakthrough for criminal justice reform advocates, the Senate will vote on a federal sentencing and prison reform bill that has proved deeply controversial within the Senate Republican ranks, Senate Majority Leader Mitch McConnell (R-KY) said on Tuesday.
McConnell said in a floor speech the Senate will take up the legislation, written principally by Senate Judiciary Committee Chairman Charles Grassley (R-IA), Sen. Richard J. Durbin (D-IL) and other Democratic and Republican senators, the Washington Post reports.
The House passed the First Step Act earlier this year, but it has been pending in the Senate for several months as senators have negotiated primarily on sections involving reducing the possibility of prison time for several thousand inmates convicted of drug offenses.
The House version of the bill included only reforms in the federal prison system, but a bipartisan group of senators has insisted on adding sentencing reform provisions. President Trump recently announced his support for the measure.
Backers and advocates have been publicly and privately lobbying McConnell for months to bring the bill to the floor, arguing that they have at least 70 votes in support of the legislation.
McConnell’s decision is a dramatic turnaround from last week, when he warned that he did not have time to move the criminal justice bill this year, which he said could take up to 10 days. “It’s extremely divisive inside the Senate Republican Conference, in fact there are more members in my conference that are either against it or undecided than or for it,” McConnell said at a Wall Street event. “This is a one-week to 10-day bill and I’ve got two weeks.”
McConnell and Majority Whip John Cornyn (R-TX) estimated last week that a majority of Republicans were undecided or opposed to the bill, but since then several Republican senators, including Sens. Ted Cruz (R-TX) and David Perdue (R-GA) have endorsed it.
Durbin and Grassley have been circulating a draft that includes changes to win more GOP support. The new version of the bill is expected to released as soon as Tuesday, the Hill reports.
The changes are expected to include expanding the list of crimes that exclude an inmate from bill’s “earned time” credits, which cut time off a prison sentence. Senators are also discussing eliminating a “safety valve” portion of the bill that gives judges some discretion in going around mandatory minimums.
McConnell’s decision comes days after Trump doubled down on publicly urging the GOP leader to bring up the bill for a vote.
“Hopefully Mitch McConnell will ask for a VOTE on Criminal Justice Reform. It is extremely popular and has strong bipartisan support. It will also help a lot of people, save taxpayer dollars, and keep our communities safe. Go for it Mitch!” Trump said in a tweet on Friday.
Sen. Tom Cotton (R-AR) is strongly opposed to the legislation, which he calls the “jailbreak bill.”
“So when cornered by a zealous bill sponsor, most senators will hem & haw, trim, [and] hedge. They will say something abstract like, ‘I agree, we need to do something,’ etc etc. But then they tell the whip they don’t want to touch the bill with a 10-foot pole,” Cotton said in a tweet about internal GOP dynamics.
If the Senate passes the legislation, it will still need to be approved by the House by the end of the year before it can go to Trump’s desk. AshLee Strong, a spokeswoman for House Speaker Paul Ryan (R-WI), said the House “will be ready to act.”
McConnell warned on Tuesday that because of the decision to add the measure to the Senate agenda, “members should now be prepared to work between Christmas and New Year’s.” He urged senators to “work together or prepare for a very, very long month.”
Congress also must complete work on appropriations bills this month or face a partial government shutdown.
A 3-year-old girl died in Kentucky after her uncle slit her throat in an attack her father heard over the baby monitor, authorities said. Josephine Mia Bulubenchi died Sunday at the University of Kentucky Children’s Hospital, where she was taken after being allegedly attacked early Saturday by Emanuel Fluter, her 33-year-old uncle who was living…
Marci A. Hamilton is Robert A. Fox Professor of Practice and Senior Resident Fellow of the Program for Research on Religion at the University of Pennsylvania. The Supreme Court’s grant of certiorari in The American Legion v. American Humanist Association (along with a companion case brought by the state involving the same facts) is troubling. There […]
The post Symposium: Supreme Court at the crossroads of the establishment clause as it considers a cross appeared first on SCOTUSblog.
Marci A. Hamilton is Robert A. Fox Professor of Practice and Senior Resident Fellow of the Program for Research on Religion at the University of Pennsylvania.
The Supreme Court’s grant of certiorari in The American Legion v. American Humanist Association (along with a companion case brought by the state involving the same facts) is troubling. There was no split in the circuits that required the Supreme Court’s attention and the rulings in both cases were eminently reasonable. In the American Legion case in particular, a large, and I mean huge, cross dominates an intersection. It is intended to be dedicated to veterans of World War I, and is referred to as the Bladensburg World War I Veterans Memorial. There is no question, however, that it is a deeply religious symbol on public property that sends a message of government endorsement of Christ and Christianity. The government has had to pay over $100,000 for upkeep. The U.S. Court of Appeals for the 4th Circuit correctly held it is a violation of the establishment clause and remanded for consideration of either removal or adding other religious symbols for the purpose of changing the Christian message to one of religious diversity and inclusion. The Supreme Court’s grant signals that the current conservative members of the Supreme Court may be poised to do what many feared they might: further cripple the separation of church and state.
The push by conservative religious entities like the Becket Fund and the Alliance Defending Freedom since the 1990 Employment Division v. Smith decision has been to enlarge free exercise rights while diminishing the restrictions on religion that flow from the establishment clause’s mandate of government neutrality toward religion. Unfortunately for the United States and the unity of this diverse nation, the goal of these entities has been to co-opt government power – whether state or federal – to further their positions on specific religious ends, including opposition to abortion and even contraception, denying civil rights to LGBTQ people, and expanding the right to refuse service or healthcare delivery to those with whom they religiously differ. They have pursued two pathways. First, they have pressed for extreme religious liberty statutes like the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Second, they have litigated to dismantle establishment clause doctrine that restricts the ability of government to support and promote religion. They have argued that the establishment clause exists solely to enlarge rights for religion, and that any restrictions on religion that flow from the establishment clause are “hostile” to religion. And, of course, they have succeeded in getting those priorities set in the Trump administration’s Department of Justice, where former Attorney General Jeff Sessions issued strong letters to federal departments and agencies directing them to follow RFRA to its logical extreme and to cater to religious entities as a first priority.
This combination of preference for religious practices with an attack on the establishment clause marks the religion-clause jurisprudence of the conservative justices now on the Supreme Court. For example, this wing of the court is responsible for the decisions in Burwell v. Hobby Lobby, which expanded RFRA rights to for-profit corporations; Hein v. Freedom from Religion Foundation, which restricted taxpayer standing for establishment clause cases; and Trinity Lutheran v. Comer, which held that if a state provided funding for playgrounds it could not deny funding for a church’s playground. The Trinity Lutheran case may seem silly and marginal in that it was about playgrounds but is still concerning, because it espouses an insidious theory at the core of the anti-establishment-clause movement that would require government to fund religious organizations anytime that nonreligious entities are funded. For those who have not been tracking this issue, that is the pathway from tax-funded public schools to tax-funded public and private schools, also an agenda item.
The conservatives have been hostile to the so-called Lemon v. Kurtzman “test” for determining when government action violates the establishment clause and to Justice Sandra Day O’Connor’s “endorsement test.” Instead, they have pushed for a standard of “coercion”: If the government is not forcing someone to believe something against her will, the courts should find no violation, according to them. That opens the door wide to government financial support of religion, as in the plurality’s reasoning in Mitchell v. Helms, a case involving funding for computers in private religious schools, and to the introduction of prayer into government proceedings, a la Town of Greece v. Galloway.
In Lemon, the Supreme Court set out three factors to be considered: the purpose and effect of the government action and whether it leads to excessive entanglement of government and religion. The 4th Circuit found a violation of the establishment clause in that the Bladensburg Cross led to excessive entanglement. It is also in my view an unconstitutional government endorsement of a specific religious message. The American Legion case is best understood in light of the Supreme Court’s 2005 dual holdings on public displays, in which it held in McCreary County v. ACLU of Kentucky that a Ten Commandments display in a Kentucky county courthouse was unconstitutional but, in Van Orden v. Perry, that a Ten Commandments monument on the Texas statehouse grounds was not.
As I discussed in this column at the time, the cases turned on context. The McCreary County courthouse posting of the Ten Commandments was saturated with religious intent. Moreover, a courthouse is a venue where neutrality is especially important. The Texas statehouse grounds set the Ten Commandments in the context of other monuments and did not scream at passersby that the state was endorsing a particular religious tradition.
The guiding principle in establishment clause cases should be the separation of power between church and state. It’s not that church and state must exist in non-overlapping universes, wholly divorced from each other. Of course they coexist. Rather, the danger that the establishment clause seeks to deter is the peril posed by a union of power between church and state. History — especially the European history preceding the founding of the United States — shows the tyranny imposed when these two most authoritative structures of human existence unite to control society. One important weapon in preventing a tyrannical union is limiting the capacity of religious believers and organizations to co-opt the state for their religious messages. If that line is erased, despotism is closer at hand.
At this time in history and particularly in this case, the Supreme Court needs to pay attention to the religious makeup of the United States, where the fastest growing cohort consists of the “Nones,” those who are not religiously affiliated. The Nones may be spiritual and even believe in God, but they are not enamored of organized religion. They are reminiscent of the Deists prevalent at the time of the framing of the Constitution, including the likes of Thomas Jefferson, who famously cut out the parts of his Bible that he found too fantastical. The Nones are important, because they are a reminder that Americans are not just religiously diverse but also independent. They don’t need and don’t want the government to tell them what to believe. Nor are they interested in having anyone push any one religious tradition or faith on them. The Nones are not likely to buy the duplicitous argument that a cross is nonreligious. Thus, no justice should presume that Americans will look at this imposing cross as some neutral symbol, just because it has been there for decades. Public sensibility about religion and government endorsement is context- and era-dependent. At this time, this symbol is religious, and the message is being sent by the government.
Sadly in my view, veterans have sided with the American Legion, while the American Humanists have had to be the ones to fight for the distinctive constitutional value of the separation of church and state. I would argue that the veterans were fighting in World War I to preserve the American way of religious diversity and the right to government neutrality toward all Americans. The American Humanists are on the side of the American core constitutional virtues the two world wars preserved. I understand the emotional attachment to a symbol that is tied to particular veterans, but the 4th Circuit rightly suggested that other religious symbols in memory of veterans could be added or the cross could be moved to private property. Given its size, surely no one is concerned that it won’t be visible from the road! In light of the 4th Circuit’s sensible holding and suggested remedies, the only plausible reason the court took this case was to further disable the requirement of government neutrality and to decrease the separation between church and state, which in turn reinforces the cause of religious triumphalism. Thus, the best thing that could happen in this case would be for it to be relegated to a “DIG,” a denial of certiorari after it was “improvidently” granted.
The post Symposium: Supreme Court at the crossroads of the establishment clause as it considers a cross appeared first on SCOTUSblog.
The Justice Department threatened fines and prison time for city officials who open a site where people can use illegal drugs under supervision. A Denver official responded, “We’re moving forward, maybe even with more vigor.”
With opioids killing more than 115 people a day, several U.S. cities have been toying with the idea of opening a supervised injection clinic for the past few years. Such sites are places where people can safely use their own illegal drugs under the watchful eye of a medical professional who steers them toward social services like drug and mental health treatment. These clinics exist in a few other countries, including Canada, Australia and several in Europe. Dozens of studies have shown that they reduce overdoses without increasing drug use or crime in the community. The federal government recently weighed in on the matter for the first official time, issuing the city of Denver a stern rebuke over its plans to open a safe-injection site next year, reports Governing.
A joint letter from the U.S. Attorney and the Denver field office of the Drug Enforcement Administration warned the city last week against moving forward with its plan. The letter stressed that such a facility is illegal under federal law. “Just like so-called crack houses, these facilities will attract drug dealers, sexual predators, and other criminals, ultimately destroying the surrounding community,” the letter read. “More importantly, the government-sanctioned operation of these facilities serves only to normalize serious drug usage.” The letter threatens “criminal fines, civil monetary penalties up to $250,000, and imprisonment up to 20 years in jail for anyone that knowingly opens, leases, rents, maintains, or anyone that manages or controls and knowingly and intentionally makes available such premises for use.” That isn’t stopping city officials. “We’re moving forward, maybe even with more vigor,” says Denver City Councilmember Albus Brooks. “Drug users are not the enemy.” Philadelphia, one of the other cities pursuing a safe injection clinic, is similarly defiant.
Sex workers—and sex-trafficked women—continue to be victimized by the justice system despite efforts to change how they’re treated by law enforcement and the courts. That makes a TCR columnist wonder whether we’re really serious about giving them the protection and support they need.
I recently read about an experiment conducted with Capuchin monkeys in captivity at Yale-New Haven Hospital that offers some intriguing lessons about the relationship between sex and crime.
Under the experiment, monkeys who performed specific tasks at researchers’ behest received silver chips that could be exchanged for a favorite fruit or toy. The experiment was designed to see if monkeys could be taught the value of money, but in the process they received a lesson in crime control.
Aware that the chips could vanish while they slept, the Capuchin monkeys began to hide them. But female monkeys learned an additional lesson. At risk of having their chips taken by stronger males, they actually began offering chips—“protection money”—to the strongest males.
It didn’t take long for the theft, robbery and protection rackets emerging from the experiment to be infused with another element.
The males began offering the female Capuchins their hard-earned chips to have sex, and the females soon realized that it was far easier to make money “selling” sex then it was to complete tasks for researchers.
They quit performing tricks for humans and got paid by the “tricks” in captivity with them.
The mix of sex, money and crime gets more complicated when it comes to humans. In his book, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,
Gayle Rubin writes that “sex law incorporates a very strong prohibition against mixing sex and money, except via marriage.”
Consequently, outside of animal enclosures, legions of police are devoted towards hunting women down who dare to exchange sex for money on a commercial basis.
In my youth, I saw many women on the strip get questioned, frisked and hauled off by police officers for violating the criminal justice system’s catchall crime of “loitering;” but in reality they were targeted as suspected prostitutes.
The local news often had stories about sex workers peddling their wares on the streets, and purportedly reducing the quality of life for the rest of the citizenry.
Yet even when prostitution moved from street corners to websites, sex workers continued to be persecuted.
This is a strange thing for me to see when the city I was raised in now has licensed shops where marijuana can be sold legally, and the county works to make the lives of heroin addicts easier.
There was a time when the culture seemed to be shifting—at least to the extent that female sex workers were coming to be seen as victims of both the criminal justice system and patriarchy: their male clients were sent home after trying to purchase sex, but the women were sent to jail.
Many reformers argued that laws against prostitution restricted freedom and autonomy, and decriminalization or regulation of this activity was a better strategy than continuing to fund Vice Squads and incarcerate (primarily poor) women for selling their bodies for money.
The arguments eventually succeeded in convincing enough people to change the status quo. But in a way that should concern anyone who looks at it closely
The “whores” who had been demonized by society were considered victims of sex trafficking—not of the criminal justice system. Prostitutes need to be protected. So they needed to be arrested just the same.
These bait-and-switch reforms can be seen in cities that claim to be progressive.
In Seattle, for instance, women are still being arrested and jailed for the “crime” of prostitution, even though the punishment is more lenient based on the view that these women are considered “victims” by those tasked with prosecuting and sentencing them.
In earlier eras, “fallen women” were saved by progressives who implemented policies to confine the fallen for purposes of domestication. The contemporary version of this involves incarcerating women to provide them with drug treatment and other skills that will enable them to escape sex trafficking.
But the underlying concept is that the criminal justice system is serving these women’s best interests.
A closer look makes clear that’s not happening.
Social workers are not gaining primacy over police officers; shelters are not supplanting jails; and criminal records are not being expunged to reintegrate the women into society and thereby help them avoid future sex trafficking.
Pseudo-reformers claim that victims of sex trafficking have a unique status that warrants a restorative and rehabilitative approach. But jails and prisons are not therapeutic communities.
In fact, I have no doubt that imprisoned victims of sex trafficking know that a retributive ethos lies at the heart of their present misery, notwithstanding benevolent evocations by prosecutors, judges, and apologists with doctoral degrees in criminology.
Still, while watching the news recently, I learned that throughout the Seattle International Airport, travelers will now see signs informing them how to identify and report suspected sex trafficking.
This marketing campaign has been brought to you by those who never had a problem with sending poor women to the pokey for selling their bodies. It never ceases to amaze me how the criminal justice system adapts when hypocrisy, bias and inequity make it problematic to continue a practice while maintaining legitimacy.
I know how this game works from firsthand experience.
I used to be a super-predator. My youth did not mitigate my culpability for committing adult-like crimes. Then, developments in psychology made the super-predator evolve into a less wicked being with a greater capacity for reform.
However, as with sex workers, that’s not what happens when the criminal justice system’s machinery swings into gear.
Records are not being expunged or sealed as a matter of course when youths turn 18, even though research tells us that crimes committed by juveniles generally reflect transient immaturity rather than irreparable corruption.
Juvenile detention centers are not being remodeled into therapeutic communities.
All that has changed is the quantum of punishment—not the response to crime or the personnel devoted to prevention.
So it is with sex workers as well.
Nevertheless, there are some ancillary benefits for women ensnared in the criminal justice system. By conflating all prostitution with sex trafficking, female defendants can use this as a means to obtain mercy.
If you are caught selling drugs, explain during trial or at sentencing that you were strung out by a sex trafficker long ago as a means of control—and now you must peddle narcotics to support the habit that was foisted upon you. Magically, you will transform from an avaricious, heartless drug pusher into a victim worthy of a reduced sentence and drug treatment.
If you assaulted some man in a domestic violence incident, explain that your actions were a product of the trauma induced by years of being trafficked for sex. With this plot twist, you will now be seen to have experienced trauma worthy of judicial recognition.
I could go on concocting mitigating arguments based on the present-day sex trafficking meme. It is a gift that can keep on giving.
I have a lot of empathy for women caught in these situations. It makes sense for any woman facing jail or prison time to use sex trafficking as a proxy for all of their criminal misdeeds.
A traumatic childhood defined by physical and sexual abuse, and abandonment and neglect, has not shielded women from draconian sentencing guidelines. Nor has childhood poverty, a criminogenic environment, and schools that aren’t conducive to learning made these women any less “wicked” to prosecutors, judges, and society once they have been arrested.
The rules of the game require that officials maintain the fiction that our crimes are the result of conscious, willful choice rather than systemic inequalities.
So, with no other options available to persuade justice officials to recognize their humanity, women who can reinvent themselves as sex trafficking victims might find mercy from a system that is all too often merciless.
Take a lesson from the Capuchin monkeys.
Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He is currently petitioning for release from the Stafford Creek Corrections Center. Readers who wish to support him are invited to sign up here.