A law professor and former prosecutor reveals how inconsistent ideas about violence, enshrined in law, are at the root of the problems that plague our entire criminal justice system—from mass incarceration to police brutality.

We take for granted that some crimes are violent and others aren’t. But how do we decide what counts as a violent act? David Alan Sklansky argues that legal notions about violence—its definition, causes, and moral significance—are functions of political choices, not eternal truths. And these choices are central to failures of our criminal justice system.

The common distinction between violent and nonviolent acts, for example, played virtually no role in criminal law before the latter half of the twentieth century. Yet to this day, with more crimes than ever called “violent,” this distinction determines how we judge the seriousness of an offense, as well as the perpetrator’s debt and danger to society. Similarly, criminal law today treats violence as a pathology of individual character. But in other areas of law, including the procedural law that covers police conduct, the situational context of violence carries more weight. The result of these inconsistencies, and of society’s unique fear of violence since the 1960s, has been an application of law that reinforces inequities of race and class, undermining law’s legitimacy.

A Pattern of Violence shows that novel legal philosophies of violence have motivated mass incarceration, blunted efforts to hold police accountable, constrained responses to sexual assault and domestic abuse, pushed juvenile offenders into adult prisons, encouraged toleration of prison violence, and limited responses to mass shootings. Reforming legal notions of violence is therefore an essential step toward justice.

The U.S. death penalty is a peculiar institution, and a uniquely American one. Despite its comprehensive abolition elsewhere in the Western world, capital punishment continues in dozens of American states– a fact that is frequently discussed but rarely understood. The same puzzlement surrounds the peculiar form that American capital punishment now takes, with its uneven application, its seemingly endless delays, and the uncertainty of its ever being carried out in individual cases, none of which seem conducive to effective crime control or criminal justice. In a brilliantly provocative study, David Garland explains this tenacity and shows how death penalty practice has come to bear the distinctive hallmarks of America’s political institutions and cultural conflicts.

America’s radical federalism and local democracy, as well as its legacy of violence and racism, account for our divergence from the rest of the West. Whereas the elites of other nations were able to impose nationwide abolition from above despite public objections, American elites are unable– and unwilling– to end a punishment that has the support of local majorities and a storied place in popular culture.

In the course of hundreds of decisions, federal courts sought to rationalize and civilize an institution that too often resembled a lynching, producing layers of legal process but also delays and reversals. Yet the Supreme Court insists that the issue is to be decided by local political actors and public opinion. So the death penalty continues to respond to popular will, enhancing the power of criminal justice professionals, providing drama for the media, and bringing pleasure to a public audience who consumes its chilling tales.

Garland brings a new clarity to our understanding of this peculiar institution– and a new challenge to supporters and opponents alike.

Over seven million Americans are either incarcerated, on probation, or on parole, with their criminal records often following them for life and affecting access to higher education, jobs, and housing. Court-ordered monetary sanctions that compel criminal defendants to pay fines, fees, surcharges, and restitution further inhibit their ability to reenter society. In A Pound of Flesh, sociologist Alexes Harris analyzes the rise of monetary sanctions in the criminal justice system and shows how they permanently penalize and marginalize the poor. She exposes the damaging effects of a little-understood component of criminal sentencing and shows how it further perpetuates racial and economic inequality.

Harris draws from extensive sentencing data, legal documents, observations of court hearings, and interviews with defendants, judges, prosecutors, and other court officials. She documents how low-income defendants are affected by monetary sanctions, which include fees for public defenders and a variety of processing charges. Until these debts are paid in full, individuals remain under judicial supervision, subject to court summons, warrants, and jail stays. As a result of interest and surcharges that accumulate on unpaid financial penalties, these monetary sanctions often become insurmountable legal debts which many offenders carry for the remainder of their lives. Harris finds that such fiscal sentences, which are imposed disproportionately on low-income minorities, help create a permanent economic underclass and deepen social stratification.

A Pound of Flesh delves into the court practices of five counties in Washington State to illustrate the ways in which subjective sentencing shapes the practice of monetary sanctions. Judges and court clerks hold a considerable degree of discretion in the sentencing and monitoring of monetary sanctions and rely on individual values—such as personal responsibility, meritocracy, and paternalism—to determine how much and when offenders should pay. Harris shows that monetary sanctions are imposed at different rates across jurisdictions, with little or no state government oversight. Local officials’ reliance on their own values and beliefs can also push offenders further into debt—for example, when judges charge defendants who lack the means to pay their fines with contempt of court and penalize them with additional fines or jail time.

A Pound of Flesh provides a timely examination of how monetary sanctions permanently bind poor offenders to the judicial system. Harris concludes that in letting monetary sanctions go unchecked, we have created a two-tiered legal system that imposes additional burdens on already-marginalized groups.

A CounterPunch Best Book of the Year
A Lone Star Policy Institute Recommended Book

“If you care, as I do, about disrupting the perverse politics of criminal justice, there is no better place to start than Prisoners of Politics.”
—James Forman, Jr., author of Locking Up Our Own

The United States has the highest rate of incarceration in the world. The social consequences of this fact—recycling people who commit crimes through an overwhelmed system and creating a growing class of permanently criminalized citizens—are devastating. A leading criminal justice reformer who has successfully rewritten sentencing guidelines, Rachel Barkow argues that we would be safer, and have fewer people in prison, if we relied more on expertise and evidence and worried less about being “tough on crime.” A groundbreaking work that is transforming our national conversation on crime and punishment, Prisoners of Politics shows how problematic it is to base criminal justice policy on the whims of the electorate and argues for an overdue shift that could upend our prison problem and make America a more equitable society.

“A critically important exploration of the political dynamics that have made us one of the most punitive societies in human history. A must-read by one of our most thoughtful scholars of crime and punishment.”
—Bryan Stevenson, author of Just Mercy

“Barkow’s analysis suggests that it is not enough to slash police budgets if we want to ensure lasting reform. We also need to find ways to insulate the process from political winds.”
—David Cole, New York Review of Books

“A cogent and provocative argument about how to achieve true institutional reform and fix our broken system.”
—Emily Bazelon, author of Charged