In the wake of the George Floyd killing, many Americans are engaging in a renewed debate about the role violence and especially police violence, plays in American society. In A Pattern of Violence: How the Law Classifies Crimes and What it Means for Justice (Harvard UP, 2020), David Alan Sklansky, the Stanley Morrison Professor of Law at Stanford Law School, argues that in order to think sensibly about criminal justice, we must consider how we think about violence and the criminal law’s role in shaping our perceptions.
Sklansky argues that the criminal law’s definitions of violence have proven “slippery” and have been used in highly inconsistent ways. We talk about offenders as being characterologically violent, but contrastingly talk about the police, gun owners, or free speech activists in nonviolent terms. For example, police officers use “force” to subdue “vicious” criminals. Or they “stop and frisk” suspects instead of violently violating a person’s bodily integrity. While the police have increasingly militarized and have become more insular and reactionary, Sklansky argues that police institutions themselves have also played a role in creating many of the situations in which the police find themselves. Additionally, Sklansky significantly details how our conversations of violence regarding rape and domestic violence, the treatment of juvenile offenders, and free speech and gun rights, suffer from the same inconsistencies, especially as they tend to exaggerate and perpetuate race, gender, and class differences.
Sklansky argues that the law has not always drawn consistent boundaries between violent and non-violent offenses. Burglary, while labeled a violent felony, requires no act of interpersonal violence. Assault or battery, on the other hand, are often misdemeanors, though they require physical violence.
In addition to thinking inconsistently about violence, most Americans accept and even celebrate forms of societal violence. For example, American prisons, while not officially condoning violence, allow and sometimes encourage violence against prisoners as forms of discipline and retribution. As Sklansky argues, violence in these institutions is often treated as a form of entertainment, a “morbid parody of combat sports.”
Sklansky prompts us to confront our overly simplistic definitions and assumptions about violence in the American law. He encourages us to take advantage of an increased awareness of violence and to work toward more just and consistent definitions.
Samuel P. Newton is an Assistant Professor of Law at the University of Idaho College of Law.