Stanford Prof's Book Explores US Violence And The Law

By Sameer Rao | April 18, 2021, 8:02 PM EDT

In "A Pattern of Violence," David Alan Sklansky illuminates how the U.S. legal system's overdependence on faulty understandings of violent crime has fueled some of today's most pressing criminal and social justice issues.

The most important question of the virtual panel that Stanford Law School recently held to discuss professor David Alan Sklansky's latest book, "A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice," arrived about 40 minutes into the session.

"How are you defining violence there, David?" his colleague and panel moderator Dr. Rabia Belt asked.

The question was a crucial one, as much of the discussion to that point had dealt with how social movements, technology, racism and shifting politics shape a concept that the criminal justice system inconsistently defines. Sklansky, a former labor lawyer and assistant U.S. attorney in Los Angeles, acknowledged that complexity in his answer.

"I feel like if we didn't make so much of a distinction, it wouldn't matter as much exactly how we define it, but I would define violence as the use of force against another person ... or the threatened use of force against another person," he said. "That would mean that there's a lot of forms of … abuse that aren't violent, and it's wrong to think that anything that falls within the category of violence is going to be categorically worse than anything that falls outside of it."

The question underscored a wide-ranging talk on April 12 about "A Pattern of Violence," Sklansky's book that Belknap Press published in March, and its exploration of how muddled legal understandings of violence enable miscarriages of justice. In his opening remarks, Sklansky highlighted two particular "tragedies" as examples: mass incarceration and the dissolution of police reform efforts.

"I started with this sense that, in criminal law, we often make too much of violence, and in regulation of the police, we often make too little of it," he explained. "And I wanted to figure out why that was."

Sklansky elaborated on this premise Wednesday, saying that his interest in how the law treats violent crime grew over the last decade.

"Before that, like most people, I tended to assume that violence was a pretty clear category, and that violent crimes were the worst kinds of crimes," he explained to Law360. "Over the past 10 years, I noticed that both of the major events [mass incarceration and the collapse of police reform] that have taken place in American criminal justice over my career seem to have roots in how the legal system thinks about violence, and in how the legal system is inconsistent in how it thinks about violence."

Sklansky's professional history also informs his perspective on these issues. He was an assistant U.S. attorney in Los Angeles during the trials and unrest related to the videotaped beating of Rodney King. Although he wasn't involved with any related lawsuit — his focus was on white collar fraud, he said — he later served as a special counsel for a blue-ribbon commission that investigated the Rampart scandal, in which an anti-gang unit of LAPD detectives were implicated in unprovoked violence against suspects, drug dealing, bank robbery and cover-ups.

In looking at this era, he believes that even reform efforts like the community policing movement did not prioritize police violence enough.

"It's not as though people stopped thinking at all about police violence, but it wasn't the focus of reform energy … I think, in part, because the extent of police violence wasn't sufficiently appreciated," he said. "And it wasn't sufficiently appreciated because the Department of Justice didn't keep statistics, good statistics, on police shootings and other forms of police violence."

Sklansky added that this institutional disinterest coincided with both a widespread belief that policing was getting better and, in the background, the increased militarization of police departments. But, as he notes in "A Pattern of Violence," legal institutions do not always understand police brutality as a kind of violence.

During the panel — presented by Stanford Law School with its constituent Criminal Justice Center, which Sklansky co-directs, and the university's Center for Comparative Studies in Race and Ethnicity — Belt and Sklansky drew on the experiences of their co-panelists to further illustrate how these inconsistent perceptions of violence are rooted in racism and sexism, as well as challenged by the social justice movements fighting oppression. For instance, political journalist Adam Serwer of The Atlantic brought up how the 21st-century introduction of cellphone cameras corresponded with a shifting public perception of police violence that Sklansky's book addresses.

"It seems to me that one of the big shifts in this conversation that David is writing about is that the invention of cellphone cameras means that it's much easier to capture these moments that occur outside, away from the eyes of a courtroom, and in this sort of nebulous world of what are the cops allowed to do before they actually try to convict you of a crime," Serwer noted.

Fellow panelist sujatha baliga, a Bay Area attorney turned restorative justice practice leader, also spoke about the problem of reform-minded district attorneys and others relying too heavily on legal standards of violence. For instance, baliga discussed how those DAs struggle without a consensus around the data about diversionary programs' effectiveness, compared to the hefty sentences that most prosecutors instead pursue.

"Sometimes, I think that, in trying to do these reform approaches [that are] too entangled with the system means that we're dealing with, having to deal with all of these statutory definitions … It doesn't really operate well, in the context of restorative justice, to have to also be juggling these things," baliga said. "It both harms restorative justice and, I think, produces less good outcomes."

California Supreme Court Justice Mariano-Florentino Cuéllar, another panelist, noted the difficulty of measuring violence when so many legal and political processes affect how it is perceived.

"It feels to me like the challenge is: If somebody wants to say, 'Well, the polluted river, that does violence to my community,' there's a sense in which we'd want society to say, 'Yeah, we recognize that this is a form of violence,' and at the same time, know the law should not treat it the same as somebody who stabbed you in the stomach," Cuéllar noted earlier. "And it's hard, I think that's not easy, because I think the very point of expanding the category [of violence] motivates ballot initiatives, legislators to act, courts to struggle with this [and] jurors when they're thinking about this, but we also want them to be technical and precise in an almost lawyerly way."

Sklansky said Wednesday that he appreciated the insight the panelists brought to his work, which he plans to continue beyond "A Pattern of Violence." He also highlighted one of Belt's comments about how focusing on so-called "spectacular violence," or where the violence holds the public eye because it is a "spectacle," overshadows other kinds of abuse that could be defined as violence.

"The everyday violence of stop-and-frisk has been ignored," he explained to Law360. "In fact, even the words 'stop-and-frisk' are, as the Supreme Court itself has recognized, euphemisms for what can be a quite violent interaction, particularly when the police are encountering minorities."

Sklansky added that such inconsistent definitions have also affected women, who endure disproportionate sexual and intimate partner violence, and feminist activism. He observed that efforts to define these problems as violent crimes actually limited attention to the more subtle kinds of "sexual victimization and domination" that women experience in and out of relationships.

"More recently, reformers who work on issues of rape and issues of intimate partner violence have stressed the importance of seeing the connection between these forms of violence and things that we don't generally tend to describe as violence, like coerced control inside of a relationship or the forms of sexual harassment that the Me Too movement has drawn attention to," he said.

While he did not completely disregard the need to legally define violence, Sklansky said that legal systems and access to justice ideally should not rely on those definitions as unilateral, unbiased indictments of character.

"The problem comes when we treat the category of violence as a master category that we can use to distinguish people who are beyond the pale, incapable of redemption, undeserving of mercy, from people who deserve mercy, can be redeemed and should be treated as part of humanity," he explained.

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--Editing by Kelly Duncan.

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