Annie Kuo: Hello to our season seven listeners, and welcome to Discovery, a University of Washington podcast where we interview the law school's distinguished faculty and guests from around the world. I'm your host, Annie Kuo, and this episode kicks off 红桃视频鈥檚 125th anniversary season. This month, 125 years ago, the law school opened with quite a diverse class that included multiple women, a black student and a Japanese American. We decided that to commemorate the 125 years of 红桃视频 we鈥檒l be opening each episode of this season with a fun factoid about the law school. For our 125th anniversary, 红桃视频 is both celebrating the past that brought us to the present moment and looking toward the future. Autumn quarter has brought over 300 new students to 红桃视频 and we recently announced the arrival of eight new faculty to the law school and four new deans. This announcement is part of our strategic growth toward the future, and along those lines, let's think about what's in store for the whole country this year. In November, we'll be electing our 47th president, so that's one reason we're bringing our guest today, Professor Danieli Evans, to the podcast. Welcome Danieli.
Danieli Evans: Thanks for having me.
AK: Danieli Evans teaches in the areas of constitutional law, criminal procedure, law and social science and civil rights. Her research investigates how people's experiences with government institutions influence their sense of belonging, and how this impacts their well-being and social opportunities. She holds a JD from Yale Law School and a Ph.D. in law, also from Yale. Professor Evans' article 鈥淐arceral Socialization as Voter Suppression鈥 was published in the spring 2023 issue of the Michigan Journal of Race and the Law, and that is what we're going to get into today. So, Professor Evans, could you tell us how socialization plays a role in shaping political behavior?
DE: Sure, sure. And I'm very excited to talk about these topics today. So, this article is really drawing from a large body of research that has been done by other scholars in the fields of political science and sociology, scholars including Amy Lerman, Vesla Weaver, Traci Burch and Joe Soss. Then this research investigates something that's oftentimes called policy feedback loops. And what this research finds is that people's political participation and political behavior is a product of their experiences with government. And so people's encounters with government 鈥 it can be police, it can be welfare agencies 鈥 teach them lessons about their status as citizens, and those lessons have an effect on their political behavior.
For example, Joe Soss finds that recipients of TANF benefits, which are state administered benefits that are means tested 鈥 you have to have certain income below a certain level in order to receive these benefits 鈥 and the agencies that administer these typically interact with clients in a way that is more moralizing, more stigmatizing. They require drug tests. They ask a lot of intrusive questions. People who receive TANF benefits tend to see themselves as second class citizens. Tend to be more distrusting of the state and less likely to participate in politics, compared to people who receive Social Security benefits, which is sort of a universal program that is not means tested, that's a more luxurious program, sort of administered by the federal government, and people are treated in that program in a way that's more responsive, more affirming of a right to petition, a right to make claims on the state.
And so the takeaway there is that people's views don't just precede their political participation and influence politics as sort of an external factor, but policies and their outcomes also shape people's views about participation and their likelihood of participating. This research has been extended into the area of the criminal system by Amy Lerman, Vesla Weaver, Traci Burch and many others at this point, all of whom find that encounters with police and the criminal system tend to demobilize people. So, each level of increasing contact with the criminal system has a greater effect on diminishing a person's likelihood of participating in politics.
People are widely familiar with the fact that certain felony convictions can lead to formal legal disenfranchisement. But here we're not talking about that. We're talking about a distinct phenomenon where people who are legally entitled to vote, who have not been disenfranchised due to a felony conviction, nonetheless withdraw from participation because encounters with the criminal system teach them lessons about the government and the nature of government that leads them to distrust government and believe that political participation will be either futile 鈥 i.e. like government agents aren't concerned about my interests, they're not going to listen to me, why would I bother participating, I'm not going to make a difference 鈥 and even worse than that, they might fear political participation. They might fear that if they walk into a government office, there might be some arbitrary form of retaliation or punishment because if all of your encounters with police, which police are a primary representative of government, they're one of the primary ways in which people learn about government and come into contact with government. If all of those encounters are stigmatizing and subordinating and authoritarian, the lesson you take away from that is that government can't be trusted, and government might, if I go into any sort of government office I might be in trouble. I might get punished in some arbitrary way. The best, most safe strategy is to stay out of sight and avoid participating in politics.
And so what these studies show is that people who have relatively minimal contacts with the criminal system, just being stopped by a police officer, being arrested but not convicted, or being convicted and serving a very short jail sentence for like a misdemeanor, each level of contact increasingly significantly diminishes the likelihood of voting, and that's controlling for other factors that are well known to affect voting. And it's also controlling for previous political behavior, and some studies show that this effect is distinctly large among Black citizens. And there are a couple of theories as to why that might be true, and we can get into that, but the important point is that people's political participation isn't only a product of their right to vote and their formal legal rights to access the polls. It's also a product of the way that they've been socialized through interactions with government.
AK: I wondered if we could talk a little bit about your statement that 鈥淓xperiences鈥︹ I'm quoting your paper, 鈥淓xperiences with carceral control are profoundly undemocratic.鈥 How do you define the carceral state? Is that like society in general, or is there like a segment of society, such as these highly policed neighborhoods? Could kind of lay it out for us.
And then second stage of the question is about how you define democracy, democratic participation and citizenship. And the lead is citizenship is all about belonging, I believe, is what you're you're arguing about.
DE: Yeah, yeah. Absolutely. There is no universal agreed upon definition of the carceral state. It's a phrase that's used very often to describe the system that we live in, and I issue defining it in this paper. I don't attempt to create a comprehensive definition of that term, but I do say that we can posit that a carceral state is one where approximately one in three men can expect to be arrested by the age of 23. I was just showing my criminal procedure class yesterday statistics showing that approximately 50% of black men will have been arrested by the age of 36. Somewhere in the 30-something percent of white men, and somewhere in the middle range of that for latino/latina men.
And so what I mean by the carceral state, and there are many, many scholars who have written about this and observed this phenomenon, is a polity in which encounters with a criminal system are routine, formative experiences for many people. Examples of this, or instantiations of this, are things like school resource officers, so police officers that are designated officers in schools, school arrests or students being arrested more and more for behavioral infractions, rather than them being dealt with within the school system itself. These things are very hard to track and study, because there are tens of thousands of police forces in the country and many jurisdictions, and they don't all keep aggregate data, but there are studies of people living in heavily policed communities finding that people have been stopped 10 or more times by the age of 14 or 15. And narrative accounts show that people's routine experiences with police 鈥 so, you know, questioning why they're walking on the street in the neighborhood that they're in, or why they're, you know, running or doing very fairly innocent, innocent things 鈥 and having their behavior constantly question that those things are very routine.
Another aspect of the carceral state that I kind of draw out throughout the paper is this idea that it's appropriate and acceptable to use criminal sanctions for any sort of thing that we deem a behavioral infraction without any assessment of proportionality. And so the example that I discuss a lot in the paper is a case called Atwater v. City of Lago Vista, where the Court held that it's acceptable to arrest someone for a fine-only misdemeanor 鈥 this was a traffic infraction, not wearing a seatbelt, it鈥檚 a woman who was driving with her two kids and was stopped for not wearing a seatbelt and was subject to a custodial arrest, taken into custody in front of her kids 鈥 even though you couldn't get any jail time as a punishment for that, it was only a civil fine. The argument there was what function is an arrest serving in a case like this, it's not even something that someone could be punished for. You couldn't put someone in jail for that sort of traffic infraction. So, what is the point of arresting them?
The court openly acknowledged that the arrests served no purpose but gratuitous humiliation, and it nonetheless said, we're not willing to limit police officers' discretion to arrest people. Whenever an officer has probable cause to believe that somebody's committed an infraction, any infraction, no matter how trivial, they have the discretion to arrest them, even if, in this particular case, there's no justification for it, and it's serves no goal but gratuitous humiliation. And that is a feature of the carceral state that I think is important to think about, where we're so willing to use carceral punishments without weighing any purported benefits against the extreme harm they cause. And following Atwater, we've had lower courts do things like uphold the arrest of a middle school or a high schooler for eating a single French fry in the subway or a middle school or high school 鈥 again, I'm forgetting the ages of these kids 鈥 for fake burping in class. There's no proportionality analysis, no evaluation that arguably justify an arrest outweigh the costs of that harm. And so this like lack of proportionality and this willingness to use carceral interventions to tackle any problem is another feature of what I call the carceral state.
AK: The carceral state, it's perhaps something that came out of our living in this era of mass incarceration, but it extends to more than just the disenfranchisement of being incarcerated, but also actually, like having any contact with the law
DE: Yeah. I mean, certainly incarceration is the core of it, but it's this idea that every single form of social regulation or social problem is best addressed through criminalization 鈥 policing and criminal sanctions, and oftentimes physical custodial arrests and incarceration, but not necessarily. And so to the second part of your question, the democratic citizenship point, I also don't endeavor in this article to define democracy. That's, you know, topic of volumes and volumes and volumes of literature and political science, following the lead of other scholars on this, sort of say, we can think about some core features of what democratic citizenship entails by thinking about the opposite of democracy.
Instead of trying to come up with democracy is XYZ. We can say what democracy is not, right? The opposite of democracy is a monarchy or being under something like totalitarian rule, where you don't have any voice or any say, and you're told what to do by a leader, an all-powerful leader, right? And the thing that we value when we think about being a part of a democracy is having what is oftentimes called political equality, the idea that I am entitled to mutual respect and concern, equal respect and concern, or sometimes phrased as being part of a community of equals, where everyone's interests matter and are entitled to equal consideration.
And voting is, of course, an important signifier of political equality because when you vote it signifies that your views are entitled to equal weight and that you're entitled to participate and have a say in decisions. You're not just subject to authoritarian rule.
The way that the carceral system is contrary to this 鈥 or the way that encounters with the carceral system are contrary to this 鈥 is that they're inherently and largely by design, subordinating, right? You're being subordinated to the authority of government. You're being told by a police officer to stand against the wall and spread your arms, or you're being told you can't leave a scene. If you're booked into jail, you can be strip searched. It is inherently demeaning, right? And then you're also labeled as a criminal and a label that is a public record. Even if you're not convicted, you have an arrest record in many jurisdictions that can be a public record. 聽And if you're convicted of a minor crime, like a misdemeanor, that will be on your record.
We have tons of evidence that people discriminate against people with criminal histories in hiring and in housing and all kinds of things like that. That's going to lead other people to discriminate against you, so literally, having contact with the criminal system puts you in a position of being in a subordinated status relative to both the government and other people in society. And that's inherently in tension with the idea of political equality, and I think that's pretty well accepted. I mean, I even quote some opinions saying that criminal punishment is by design, stigmatizing. The question is just, or what has long been assumed, is that all of the stigmatization and subordination is justified because the person who is being subject to the criminal intervention somehow deserves it based on their behavior, or something like that.
AK: From here the application to belonging is that if folks don't feel like they belong, right 鈥 since this is, like, social psychological impact of carceral contact, is that they don't feel like they belong, or that their vote or voice doesn't matter as much 鈥 they're less inclined to participate in that process.
DE: Yeah. So, one way to understand what political equality is, the way that I defined it, was just being a part of a community of equals. Well, that is very close to the idea of belonging. And there's a large body of research in social psychology that shows that belonging is a fundamental need, and without it, people can't function optimally. And also, people who experience ostracism or exclusion or lack of belonging tend to withdraw and disengage in a self-protective way. It's painful to be excluded, right? Just like if you touch a hot stove, you're going to pull your hand back and you're not going to want to touch that stove again. If there's a domain where you experience a lot of exclusion, you're going to want to avoid that domain and not want to engage with that domain again.
So, I think there's some of that going on. I think that one of the functions that being entitled to vote serves, apart from the ability to influence political outcomes, it also affirms and dignifies a person's sense of belonging. It communicates to them that they are entitled to participate and their voice matters, and that's a way of signaling that they belong. But when the state grants that sort of belonging through a right to vote, but simultaneously treats the person in a stigmatizing and subordinating manner through all these police encounters, they can take away with one hand what they granted with the other. So, if the right to vote is granting you the sense of belonging, but then the police turn around and treat you in these incredibly demeaning ways 鈥 I mean, spread your hands against the wall, strip search, these kinds of things 鈥 it really undermines and undercuts the message that comes from conferring a right to vote and renders it almost like hollow.
AK: It's a fascinating argument because you bring in the citizens鈥 participation in the democratic process here on the eve of election. We spoke a little bit before, you know, we started to record about how there's no way that the argument here could impact the coming election in terms of the changes, some of the solutions that you suggest, which we're going to get to. You offer this constitutional argument in favor of stricter review and oversight of carceral policies. The intended audience for part of your article is the judiciary, and so I want to, you know, take a moment here to ask if you could tell us about why you anticipate that this vision would not resonate with some of the members of the judiciary, and why would you persist?
DE: Yeah, absolutely. And so in this paper, I talk about a bunch of different interventions. I talk some about courts, I talk some about legislatures, and some about things at the executive branch, like the Department of Justice through its justice reinvestment funding and other funding streams to state and local governments for reducing incarcerated populations. All these different mechanisms or steps that different entities could take to reduce the anti-democratic consequences of the criminal system. I do think because I'm a lawyer and I teach in a law school focusing on courts, and I think a lot about constitutional theory is, sort of, the more interesting angle here.
The main argument that I make from a constitutional law perspective is essentially this, in constitutional law, courts oftentimes review policies that state and local elected officials are making, whether that's particular policies censoring speech or restricting the areas where you can speak, or policies governing policing. You know, police departments choices about where to conduct stops, who to stop, when to search, what kinds of surveillance to do, when to arrest, like the Atwater case that I just described. And so there's a long standing argument in constitutional law that federal courts ought to defer to elected government 鈥 state and local elected officials 鈥 because those individuals are more representative. They're more democratically accountable to the public because the members of the public in that state or in that locality vote for them and choose them, and their views are presumptively more representative than the views of federal unelected judges. And the argument goes that the only exception to this should be when the state and local elected officials are doing something that itself distorts or interferes with representative democracy.
So, a classic example would be like if a local legislature or state legislature passes a law restricting who can vote, like a poll tax, that's a scenario where what they're doing interferes with free and open elections in such a way that it's no longer safe to assume that deferring to legislative outcomes is the more democratic move. In that scenario, a court intervening and saying 鈥淣o, everybody has a right to vote. You can't enact a poll tax,鈥 is actually promoting democracy because it's enfranchising a bunch of people who would have been excluded by a poll tax. That's pretty well established in constitutional law, that it's acceptable for courts to review with a higher level of scrutiny, state and local laws that do things that infringe on the political process, whether it be restricting political speech or restricting who can vote in a formal way.
But they've long not applied that kind of logic to the criminal system. They don't think of the criminal system. So, rules governing policing, or criminal laws that set forth extremely draconian punishments, or a state law that allows police to arrest people for non-jailable, fine-only offenses like in Atwater. They don't think of those as the sort of law that implicates the political process, and hence they defer to them. They say, well, we should leave it to state and local elected officials to decide whether this is the appropriate policy because state and local elected officials are presumptively more representative of the public.
But what I want to say is that when you appreciate the ways in which carceral contact can demobilize people and reduce political participation, it becomes clear that policing policies and criminal policies are not only a byproduct of political inequality, but they're also a driver of political inequality. They are a form of political suppression. And once you appreciate that, these are policies that can distort the political process, much in the way as restrictions on voting can distort the political process, and hence they should be subject to a stricter level of review. Courts should be asking, 鈥淚s this policy necessary? What goal is it serving?鈥 So, in a case like Atwater, rather than saying the police can arrest whoever they want so long as they have probable cause to believe they committed a fine-only infraction, the court should say, what's the purpose of arresting someone for a fine-only infraction? Is there an alternative that is less harmful, that could have served that same purpose. If it's gratuitous humiliation, and serves no other goal, that's probably not enough of a justification to impose this harm once you appreciate that that arrest has an effect on political participation, not unlike a rule that makes it harder to vote.
AK: You referenced the solutions that you suggested on the court level, state versus federal, but also some solutions that could be enacted by legislatures and executive officials. Could you, kind of, give us a high-level summary of some of the ways that this could be reduced by steps taken by these different branches of government?
DE: Yeah, and I just realized as well that I didn't complete the answer to your last question, which was, 鈥淲hy do I think that a lot of courts are not going to be particularly sympathetic to the argument I'm making here?鈥 which is just, I mean, we all are observing the court. We know the way that the court has been moving on voting rights lately. The justices do not seem to be particularly concerned about this approach to judicial review, which is sometimes called political process theory, or approaching constitutional law in a way that seeks to protect political equality and that scrutinizes state and local laws that interfere with the political process. They've, you know, held that partisan gerrymandering is non-justiciable. They've issued a number of rulings that basically allow state and local elected officials to distort the political process in their favor, and that is a major threat to democracy that a lot of people are focusing on. And so I don't expect a sympathetic audience from this particular court, but I also think that the fact that this particular court is unlikely to be sympathetic should not be a reason to abandon an argument, right? Because I think that gives up too much of a progressive vision for what's feasible in the short run, and if we do that, we're really compromising on our long term vision.
I do think there's a lot of interesting hope in justices like Justice Sotomayor and Justice Jackson, who are writing incredibly powerful dissents. Justice Sotomayor has a dissent in a case called Strieff that really calls out some of these citizenship harms, which I quote at length in the article. I think there's a lot of hope in state courts who are doing a lot of interesting, kind of, revolutionary things, and I talk about that a little more in the paper.
In terms of the legislative solutions. Well, I think most of my legislative solutions are geared primarily toward 鈥 and this is really the province of the legislature 鈥 thinking about the interest in policing and criminalization and reevaluating the criminal sanctions, kind of, across the board, and thinking more about what value or what benefits accrue from arrests and incarceration. And thinking about those benefits in relation to their harms, and not just the inconvenience or even economic costs, but also the civic cost of having the people with such common, routine encounters with a criminal system.
I also think that legislative solutions are difficult to achieve. The policy space in the criminal system area, and the incentives are notoriously pathological, and that's indeed part of my argument for why judges have a role to play here.
The executive branch has a bunch of really interesting opportunities. One that has been highlighted by other scholars as well, and I'm not the first to mention this, is the Justice Reinvestment Initiative, which is a grant that the federal government gives to states. They use the funds to reduce their incarcerated populations, and basically they have to go through a whole process where they analyze all the different things that are happening in their criminal system and make a bunch of policy changes and the funds saved by reducing incarceration are supposed to be reinvested into the communities that have been most hurt by incarceration. Up until now, many of these reinvestments have essentially been into correctional agencies to support things like more reentry programs and things like that, but they're nonetheless coercive. They have sort of a lot of the characteristics of the carceral state. They're authoritarian. They're controlling their parole, probation, community supervision, and I suggest really prioritizing in the Department of Justice, reinvesting in local community organizations. Reinvesting in building civic power, reinvesting in organizations that are led by people who have had contacts with the criminal system.
I also suggest that the Department of Justice, in a lot of its litigation challenging pattern and practice of misconduct in police departments, seek to include measures and consent decrees that will operate to diminish or reduce the extent to which policing has inflicted these civic harms. So, thinking about the ways in these consent decrees, which are agreements with police departments, as to what they're going to do in order to comply with the DOJ鈥檚 finding of violation, is requiring the police department to, you know, measure public perceptions, to take steps to ensure that in encounters with civilians, police treat people in a way that is consistent with political equality, and really thinking about how to do that, and to really try to institute meaningful mechanisms for community control. Because having mechanisms that for community control where members of the public who have been policed have a meaningful way to provide oversight and input into policing, that, kind of, counteracts and builds a sense of civic participation and civic connection. It counteracts the suppression or the sort of exclusionary or stigmatizing message that might have been a product of previous police encounters. And so those are just a couple of the things that I consider.
AK: I like the suggestions at the community level because at the heart of solutions are also just like intra-familial feeling and the socialization that happens within groups, you know, which are deep rooted and going way back. You know, it can take a really long time to uproot, but it really sounds like a fascinating way of addressing the organizations and the laws around, you know, how people are socialized to participate in democracy. As we look toward the coming elections and beyond, I wonder how long this could optimistically take, you know. If all of these things were enacted over a period of time, like, how long would it take to for some of these solutions to be, to activate change?
DE: Yeah, this isn't a short-term vision at all, and this isn't like a quick recipe for change. It's more of a theoretical sort of contribution, hopefully. And the bigger theoretical shift that I'm hoping to make is that like a broader argument 鈥 and this is one part of several works that I will do on this 鈥 is that when we think about what it means to be a citizen, we oftentimes think about a bundle of legal rights, like the right to vote, the right to speak freely, the right to associate and having an equal right to do all those things. And that's true, those are all necessary components of being a citizen, but I want to say that it requires more than that.
We should also think legally, not only about whether a person was formally treated equally, whether they were granted the same right as somebody else to vote or, you know, to speak, but we should also think about how their interactions with government socialize them. Like what their interactions with government teach them about their status and standing in the community and doing that 鈥 thinking about citizenship in that way 鈥 would mean focusing a lot more on this nature of interactions between government and civilians. Like whether those interactions are stigmatizing and subordinating, what their social meaning is. I start in this paper with the criminal system, because it's a very easy case, because it is all in many ways designed to stigmatize and subordinate as a means of punishment.
But the argument that I make here extends to other agencies, education being a prime example. But also, you know, welfare agencies, the example that I started with in the beginning from Joe Soss's work. And so the carceral system of policing is one of many mechanisms by which people in race and class-subordinated communities receive messages that they are of inferior status, or that their views and values don't matter. And all of those different encounters 鈥 the schools, the police, the welfare system 鈥 combine and compound one another into a broader message that your views don't matter very much and you should avoid government unless you actually absolutely have to interact with it because something bad is going to happen anytime you interact with the government. And so fixing these problems is a long-term theoretical project that would require really reorienting how law thinks about citizenship. It's not something that's going to happen in the immediate election cycle.
AK: Thank you so much for taking time to sit with us and introduce your scholarship over this issue. We welcome you to the 红桃视频 Faculty. We're excited to get to know you, and I'm sure the students will enjoy the classes that you're teaching this quarter and beyond.
DE: Thank you. I'm so thrilled to be here.
AK: Professor Danieli Evans is teaching Criminal Procedure Investigation and in the spring, constitutional law at 红桃视频. Her article 鈥淐arceral Socialization as Voter Suppression鈥 was published in the spring 2023 issue of the Michigan Journal of Race and Law. Her next article, which is related to this topic, 鈥淚nstitutionalized Ostracism,鈥 is forthcoming in the Michigan Journal of Race and Law.
