A Pattern of Violence: How the Law Classifies Crimes and What That Means for Justice
Author: David Alan Sklansky
Publisher: The Belknap Press of Harvard University Press, 2021. 316 pages
Reviewer: Benjamin Levin ǀ November 2021
In the summer of 1967, civil rights activist Jamil Abdullah Al-Amin (then known as H. Rap Brown) declared, “Violence is a part of America’s culture. It is as American as cherry pie.” Fifty-four years later, Al-Amin is incarcerated in Tucson, Arizona, serving a life sentence for the murder of a sheriff’s deputy. And fifty-four years later, violence remains central to questions of race, law, and social justice in the United States.
From moderate reformers to radical abolitionists, commentators are forced to reckon with violence, its costs, and how to address it. In a moment of relative enthusiasm for scaling back the carceral state, there remain limits; it’s all good and well to decry the lengthy sentence for a defendant found with a bag of marijuana in her pocket, but things get dicier when it comes time to assemble a coalition of advocates for the “violent criminals.” Reform efforts on the national and local scale consistently run up against the violent/non-violent distinction as much public support tends to wither at the suggestion that reforms might benefit “violent offenders.”
David Alan Sklansky’s A Pattern of Violence offers a timely contribution to our understanding of both violence as a concept and how the law should go about responding to violence. Sklansky frames his meditation on violence in U.S. legal and political culture in terms of two ongoing crises: mass incarceration and the brutality of raced and classed policing. In his account, violence is central to both of these longstanding pathologies of the criminal system. Sklansky identifies fear of violent crime and a public preoccupation with the problem of “violent offenders” as root causes of mass incarceration. On the flipside, as a fundamental issue in decades of “police reform,” he identifies a failure to engage deeply enough with the problem of police violence, particularly as that violence has been visited against people of color, particularly Black men.
The book itself offers a sweeping view of violence’s role in U.S. legal culture. Sklansky begins with a critically important observation: violence as a concept or category has tremendous social salience, but it is also surprisingly difficult to define. Consistently, those tasked with identifying the limits of “violence” have struggled mightily to do so. By way of example, after decades of trying to interpret the Federal Armed Career Criminal Act, the Supreme Court went so far as to strike down a portion of the statute as unconstitutionally vague. The offending provision? The law’s definition of “violent felony.”
Sklansky then moves on to the distinction not only between “violent” and “nonviolent” crime, but also between “violent” and “nonviolent” individuals. He tracks the historical moves that made violent crime synonymous with “serious” crime. And, importantly, he looks to the rise of anti-recidivism statutes and emphasizes a common view of “criminal violence as characterological instead of situational” (p. 9). That is, criminal law reflects a belief that some people are just violent. As Sklansky notes, it becomes difficult to divorce that characterological approach from racial bias and cultural narratives of Black criminality.
Following his inquiry into violence’s place in substantive criminal law, Sklansky takes readers on a whirlwind tour of constitutional criminal procedure and argues that violence plays a surprisingly minor role in the doctrines that regulate police. Sklansky is one of the nation’s leading experts on policing, and here he shows how—despite waves of activism—police violence remains frequently understated, unregulated, and perhaps misunderstood in U.S. legal culture. “Police violence usually isn’t called violence,” he notes (p. 114). And lurking below the surface of the euphemistic language of “use of force” is a problematic assumption: that policing itself isn’t violent. Or, at least, that when police “use force,” it is somehow categorically different from the violent acts committed by “criminals.”
From there, Sklansky walks us through three other legal areas where violence is ubiquitous, but where the law’s understanding (and definition) of violence remains fraught: rape and domestic violence crimes, violence by and against juveniles, and violence in jails and prisons. A recurring theme in each inquiry is the question of what constitutes “ordinary violence”—the imagined subject of criminal law’s prohibitions.
In the context of rape and sexual violence, Sklansky tracks divergent feminist approaches to the problems of subordination and describes competing views on whether to emphasize or de-emphasize the violence of gender-based violence or sexual harm. In the juvenile context, Sklansky traces tropes of juvenile delinquency and moral panics about “superpredators,” situating them against the backdrop of uncertainty about questions of rehabilitation and incorrigibility. Notably, Sklansky pushes on the victim/offender binary here, arguing that violence against juveniles and violence by juveniles should be treated as a part of the same conversation. In shifting to prison violence, Sklansky argues that carceral institutions pose a unique problem: they are exceptional spaces in which violence is socially understood not only as ordinary, but also expected. While each of these three chapters reflects a different history of violence, each also highlights a concern for how law constructs racialized others—people seen as either intrinsically violent or perhaps deserving of violence.
The book’s final chapter is perhaps its most ambitious, as Sklansky examines the place of violence in legal treatments of speech and guns. The ruminations on both subjects easily could make for books in and of themselves (as could the discussions in each chapter). Ultimately, though, Sklansky claims that First and Second Amendment doctrines have surprisingly little to say about violence. And, together with related sub-constitutional doctrines, they have shaped a legal consciousness in which ideology and identity do significant work in determining which conduct and which movements are treated as “violent.”
Throughout each area of inquiry, Sklansky paints a picture of violence as deeply contingent and context dependent. The story of violence in U.S. law and legal culture is not one of natural categories or easy lines, but of political decisions and contested cultural perceptions. Indeed, Sklansky’s accounts and arguments are effectively bolstered by reference not only to cases, statutes, and legal academics but also to television, film, and literature. In this respect, Sklansky powerfully demonstrates how understanding “legal culture” requires (or, at least, should require) legal scholars to grapple with law as embedded in culture.
I find Sklansky’s critique of “violence” as a legal category important and convincing. In fact, I find the critique so convincing that my biggest disagreement with Sklansky is probably his refusal to take the critique even further. Or, at the least, I remain less convinced by two claims in the book that I see as checking a wholehearted deconstruction of violence as a category worth retaining in U.S. legal culture.
First, Sklansky insists that he doesn’t see violence as conceptually “indeterminate.” I remain uncertain why not. Sklansky bookends his account by asserting that violence and violent crimes are—and should be—conceptually meaningful categories. As he demonstrates repeatedly, those categories are slippery and at times both over- and underinclusive. But, Sklansky ultimately argues that as a society we shouldn’t abandon the category of violence; we just should be more circumspect and bring more nuance to our understanding and classifications.
I greatly appreciate (and agree wholeheartedly with) the call for nuance and circumspection. But I also wonder if there’s a way to retain violence as a category while engaging in the sort of critical reflection that Sklansky seeks. Put differently, my own sense is that violence as a category is indeterminate. To me, that’s one of the powerful takeaways from Sklansky’s wide-ranging account of the violent/non-violent distinction: a line that appears intuitive to lawyers and non-lawyers alike and is critically important to how criminal law functions is nearly impossible to draw. Or, at the very least, drawing the line in a consistent and principled fashion appears nearly impossible. Like Sklansky, I believe that we as a society need to recognize how misleading classifications of “violence” can be; however, I’m less sure that “violence” as a category can ever not be slippery, confusing, and misleading.
Second, and relatedly, Sklansky’s compelling account of the law’s failure to define violence raises the question of whether “violence” is the right category at all. Sklansky notes “the widespread sense that violence is an especially serious form of victimization” (p. 22). But there’s a tricky chicken/egg question here: do we describe conduct as violent because it causes an especially serious form of victimization, or do we identify a form of victimization as particularly serious because the conduct that caused it was violent?
One way of reading A Pattern of Violence is that lawmakers, commentators, and judges have struggled to articulate just what makes some conduct worse than other conduct. If two acts are bad, what makes Crime A worse than Crime B? In trying to define the distinction or track that metric, they have reached for violence as a sort of proxy, or a way of saying “that conduct was particularly bad.” Perhaps that’s why “violence” becomes so nebulous in practice or why it doesn’t stand up to the exacting theoretical inspection that Sklansky applies (and that more of us in the academy should, too).
But, once we accept that violence is a proxy or stand-in for gradating the badness of conduct, then it opens up the possibility that violence isn’t the best proxy at all. Or, perhaps what Sklansky ultimately shows us is that violence as a concept fails to capture the scale of harm or the culpability of the conduct. If that’s right, though, why stick with violence at all? Why not favor “harmful” or some other descriptive category instead? If the appeal of “violence” as a category is its intuitive resonance, what happens when we realize that violence isn’t so intuitive (as Sklansky convincingly demonstrates), or at least, that many of us might disagree about what constitutes violence?
While Sklansky notes that “environmental degradation” and even certain “white-collar crimes” might be understood as forms of violence, the law generally fails to classify a business owner’s decision to dump toxic chemicals illegally as violent even though it does immense harm. Much like some of the examples of damaging speech that Sklansky describes, the (nonviolent) dumping might do more harm than much conduct that the law categorizes as violent—e.g., a simple shove on the subway. If our goal were to characterize conduct correctly and to gradate among relatively undesirable conduct, and if our only available metric were violence, then we might well conclude that the dumping should be characterized as violent. But why not just say it’s harmful or involves an unacceptably high risk of harm? Why should lawmakers, commentators, judges, and advocates stretch the definition of violence in order to conclude that the polluter has done something worse or more corrosive to society than the subway shover?
In short, I’m not sure why “violence” is the right way of distinguishing the not-so-good conduct from the truly bad conduct other than the fact that the nonviolent/violent distinction has come to dominate the cultural imagination and operate as the vernacular shorthand for a serious/non-serious distinction.
Ultimately, though, even if he doesn’t go as far as I might have, Sklansky provides an invaluable window into the dangers of accepting any category or distinction uncritically. As he demonstrates time and again, the impulse to sort conduct or crimes allows for the all-too-easy grouping of people and the all-too-easy conclusion that some class of conduct is off the table for decriminalization or some class of individuals is off the table for decarceration.
While I remain more skeptical than Sklansky that violence is the right category or is even a potentially coherent category, I greatly appreciate his core insight: any path forward in the struggle to address the cruelty of the U.S. criminal system will require a critical reexamination of the categories and classifications that put any person or any conduct outside of the realm of possible lenience, forgiveness, or even acceptance.
For those of us who embrace more radical and totalizing critiques of criminal law, Sklansky’s treatment of violence offers a blueprint to use in persuading others to second-guess their preferences for punishment. Understanding the contingent and constructed nature of one of the most intuitive categories—i.e., violence—invites a recognition that criminal law and punishment aren’t natural or immutable; they are the products of political decisions, and they could be altered by further political action. And, for others who remain more optimistic about intuitions of criminal law and punishment, Sklansky’s treatment of violence demands serious engagement and highlights the need to reexamine even the most basic and longstanding non-negotiables in U.S. criminal policy.
Benjamin Levin, Associate Professor of Law, University of Colorado Law School