Cycle of Socialization

Victims’ Rights and Public Safety

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Online citation: Beck, Julie A. 2010. “Victims’ Rights and Public Safety? Unmasking Racial
Politics in Crime Discourses Surrounding Parole Revocation for “Lifers” in California.” Western
Criminology Review 11(1):20-36. (http://wcr.sonoma.edu/v11n1/Beck.pdf).

Victims’ Rights and Public Safety?
Unmasking Racial Politics in Crime Discourses Surrounding Parole Revocation for

“Lifers” in California

Julie A. Beck
California State University, East Bay

Abstract: This paper reports on an intensive day-long symposium on Proposition 9 (also called the Victims’ Bill of Rights
Act, or Marsy’s Law) held inside San Quentin, a maximum security prison for men in Northern California. This new law
essentially ends parole for inmates serving terms of 25-years-to-life by extending the wait time between a parole denial and
a new hearing to fifteen years. Its sponsors have framed it as a victims’ rights bill. This paper adopts a race, gender, and
critical criminology perspective to challenge dominant criminal justice language and common-sense discourse such as
“victims’ rights,” “public safety,” and “equality.” Dominant framings in criminal justice are deconstructed and their
multiple meanings are explored from the position of diverse actors gathered at the prison symposium —Proposition 9
proponents, prisoners, crime victims, and prisoner-rights advocates. The paper argues that rather than protecting crime
victims and promoting public safety (claims by Proposition 9 proponents) power and inequality inhere in mainstream
criminal justice language whose dominant discursive framings mask a racial agenda and engender new forms of
victimization—that of prisoners and their families. Politicized criminal justice talk surrounding “victims’ rights,” and the
specific dichotomies it produces, ultimately denies rights and endangers the public by indefinitely removing parole-eligible
“lifers’ from their communities.

Keywords: critical criminology; prisons; race; gender; discourse analysis; critical race theory; social control; critical legal
theory; victims’ rights; Marsy’s Law

INTRODUCTION
“The law does not passively adjudicate questions
of social power; rather the law is an active
instance of the very power politics it purports to
avoid and stand above.” (Crenshaw, 1995:xxiv)

This paper analyzes how rights discourses and

mainstream criminal justice language, captured in
commonsense concepts such as “victims,” “criminals,” and
“public safety,” have helped to make California one of the
most punitive states in the nation. The Victims’ Bill of
Rights Act of 2008 (also called Marsy’s Law, or
Proposition 9) vastly changes the way persons in prison

serving life terms with the possibility of parole, are
considered for parole. The severity of this new law is
perhaps most clearly seen in its presumption of a fifteen-
year “wait period” between parole hearings, as opposed to
the usual one-year wait period, for inmates who are denied
parole.1 Opponents of the Law argue that this amounts to
an additional prison sentence. The following is an analysis
of how The Victims’ Bill of Rights Act claims to uphold
equal rights and protections for California citizens—and
for particular citizens. But this paper is not about the law,
nor is it an instrumentalist critique of law’s racially biased
outcomes. Rather, it is about how laws in the liberal
legalist tradition, and about how criminal justice language,
construct and are constitutive of unequal social relations.

http://wcr.sonoma.edu/v11n1/Beck.pdf�

Beck/ Western Criminology Review 11(1), 20-36 (2010)

21

My main argument is that the justice language
employed to frame the issue of crime by proponents of
Proposition 9 masks and embodies racial, gender, and class
power. Commonsense notions about crime, victims, and
public safety belie the inherent power relations they
represent and bolster a political agenda that reinforces
white privilege and serves the function of excluding those
not privileged. I seek to show how the Victims’ Bill of
Rights Act and Proposition 9 proponents have actively
appropriated the very rights discourse used in the past by
socially oppressed groups, and in so doing, reify white
privilege into law. This paper asks: (i) who is being
protected from whom through the Victims’ Bill of Rights
Act, (ii) who are the “victims,” (iii) who are the
perpetrators, and most of all, (iv) whose rights are at stake?
I accomplish this analysis through a report on an unusual
event — a deeply emotionally charged, day-long
symposium on Proposition 9 held inside San Quentin
prison, a maximum security prison for men in Northern
California. I was invited to the event, held in October
2008, as a scholar and prison activist, one month before
Californians voted to approve Proposition 9 by a 54%
majority.2 The Prison University Project3 sponsored this
symposium, which was structured as a panel discussion-
debate with outside guests and prisoners freely
participating.

I deconstructed the criminal justice language and the
discourse surrounding the Victims’ Bill of Rights Act of
2008 using a discourse analysis of what was said during
the seven-hour long symposium, and a textual analysis of
campaign literature.4 In this discussion of how both
proponents and opponents of Proposition 9 employed
criminal justice discourse, I intend to demonstrate how The
Victims’ Bill of Rights Act, rather than an example of the
neutral adjudication of interpersonal conflict between two
parties—“victims” and “criminals”—represents the “active
instance” of social power relations (Crenshaw 1995) and
specifically masks racial power. I take a deconstructionist
approach to make three main theoretical points: (1) the
commonsense justice language of mainstream criminology
relies on linguistic polarities, what I am calling
antagonistic dichotomies, which, bolstered by liberal
legalist discourse, are embedded in power relations; (2)
racial and gendered power relations, found in the victim
identity in particular, are associated with these antagonist
dichotomies; and (3) “victims’ rights,” as a concept and as
a movement, shadows other types of victimization and
appropriates rights discourses in a way that reproduces
power and privilege, a process I am calling rights
reversals.

CRIMINAL JUSTICE LANGUAGE:
THEORETICAL PERSPECTIVES AND
ARGUMENTS

My theoretical approach incorporates an explicit
analysis of power by framing this discussion within critical
criminological, race, and feminist scholarship. I am
primarily interested in exploring how both mainstream
criminal justice language and liberal legal discourses
masquerade as commonsense and neutral but mask power.
As Raymond Michalowski (2009) reminds us, critical
criminology is a critique of power—of laws and justice
practices and language, and how they reproduce
domination. In taking a critical criminology perspective, in
which laws are seen as created by those who have power
(Black 1976; Chambliss 1999; Chambliss and Seidman
1971). My aim is to broaden orthodox criminology’s focus
on interpersonal-harms to include an exploration of the
state’s social harms/punitive crime policy. While
appearing to empower (particular) crime victims, such
policy, in fact, serves the interests of, and empowers, the
state. In turn, all citizens, whether inside or outside the
prison walls, are harmed by a state committed to
punishment over social welfare (Arrigo and Milovanovic,
2009). While I focus on language and rights discourse
(specifically “victims’ rights”), I also place the Victims’
Bill of Rights Act within the broader social and political
context of the “get-tough-on-crime” movement of the last
four decades (see, for example, Beckett 1997; Feeley and
Simon 1992; Simon and Feeley 2003). In this sense, the
Victims’ Bill of Rights Act of 2008 (hereafter referred to
as the VBRA) can also be understood to be an extension of
determinate sentencing and other mandatory sentencing
schemes in today’s era of mass imprisonment, and thus, is
part of an increasingly punitive state apparatus.5

There is a considerable body of sociolinguistic
scholarship as well as cross-disciplinary work on how
language functions to construct the everyday reality we
take for granted. Language, including legal and justice
language, is embedded with meanings; it already embodies
that which it pretends to be merely describing (see for
example Beckett 1997; Coyle 2002; Fowler, Kress, Trew,
and Hodge 1979; Hall, Critcher, Jefferson, Clarke, and
Roberts 1979; Henry and Milovanovic 1996, 1999; Wood
1999, 2005). For instance, commonsense notions such as
“crime victim” or “innocent victim” imply their opposite—
a “guilty,” “criminal,” “perpetrator” (Coyle 2002), and
idealized victims also imply less worthy or ignored victims
(Wood 2005). Here I ask how criminal justice language
and liberal legalist discourse produce social and
racial/gender power relations through specific antagonistic
dichotomies.

My overriding arguments about crime discourse rely
on the feminist scholarship on intersectionality (Crenshaw
1995; Matsuda 1996). For example, Mari Matsuda
(1996:64) encourages us to “ask the other question” such

Victims’ Rights and Public Safety

22

that race and racism require an analysis of gender, social
class, and other oppressions. Feminist legal scholars and
cultural historians address how constructions of crime and
crime victims draw on long-held American ideologies of
the Black criminal and the protection of white women by
white men within patriarchal social and legal institutions
(Morrison 1993; Roberts 1997; Stabile 2006; Wood 1999,
2005). Foucault’s (1977) critique of power-knowledge,
whereby discursive power produces new social subjects
who can be dominated, is also useful in to
understand how “crime victim” might constitute a new
identity, one that reproduces unequal power relations. For
example, I suggest that the Proposition 9 campaign and the
VBRA reproduce and strengthen the victim identity: this
new social subject, the “crime victim,” in making claims to
rights (“victims’ rights”), in turn ironically denies and
“reverses” the rights of others, in this case, those of
California prisoners. The VBRA proponents use rights
claims (“victims’ rights”) to deny the rights of prisoners by
appropriating those very rights discourses traditionally
used by oppressed groups in struggles for equality; hence
the concept of rights reversal.

Much of my analysis centers on how Critical Legal
Studies (CLS) intervened into the liberal legalist tradition,
which views law as an apolitical mediator of social
conflict. CLS draws connections between law, power, and
white supremacy (white domination within the social, legal
and cultural spheres) illustrating how racial power operates
within legal discourses (Crenshaw 1995; Harris 1995).
Critical Race Theory, similarly, asks how laws are a
constitutive element of race itself, how law both
historically constructed race, “and shapes and is shaped by
race relations” today (Crenshaw 1995:xxiv). At the prison
symposium, race was, indeed, the elephant in the room: it
was never mentioned neither by the advocates of the
VBRA nor by the prisoners (all of the former were white,
while the vast majority of the latter was Black or Latino).6
However, I am suggesting that race was ever present in the
terms and tropes: “victims,” “innocence,” “criminals,”
“safety,” and “rights,” which disguised power and white
supremacy.

Overall, I argue that criminal justice language sets up
what I am calling antagonist dichotomies, which function
as mutually exclusive categories. Through such polarities
(for example, “victim” implies “criminal,” “victims’
rights” implies the lack of rights for “criminals” who are
deemed unworthy of rights or protections), I seek to
explore how mainstream justice language concepts are
diametrically opposed, and without the possibility of
reconciliation between seemingly autonomous entities. I
claim that the dichotomies produced through criminal
justice language are antagonistic because they function to
exclude, and they derive from, and reproduce, explicit
kinds of domination. Furthermore, I argue that these
antagonistic dichotomies also constitute the very
foundation of orthodox criminology and ameliorative

justice’s focus on interpersonal harms. That is, antagonistic
dichotomies—victim/criminal, public safety/danger—are
embedded in mainstream justice language and appear to
fuel methodological individualism, the interpersonal-harms
focus of orthodox criminology.

This paper is organized into three sections. In the first
section I explore the antagonistic dichotomies embedded in
mainstream criminal justice language. In the second
section I focus on the construction of the “crime victim”
identity, and specific racial meanings of the concept of
“innocent victim.” I also include a discussion of rights
discourses within liberal democratic states showing how
groups who hold power use claims to rights to maintained
class and racial inequality. In the third section, I give voice
to the San Quentin prisoners and other opponents of the
Victims’ Bill of Rights Act, illustrating how they challenge
and disrupt commonsense criminal justice discourse and its
underlying tensions and dichotomies. The prisoners
reframed the crime issue by focusing on the state’s social
harms, and complicated and reconstructed concepts of
“victim,” “criminal,” “merit,” “rights,” and “public
safety.”

MAINSTREAM CRIME TALK AND
ANTAGONISTIC LANGUAGE
DICHOTOMIES

Approximately 50 individuals, myself included, filed
into the San Quentin prison chapel: half were prisoners
themselves, “lifers” serving terms of 25-years-to-life with
the possibility of parole, and the other half, invited outside
speakers and guests. The latter included several proponents
of Proposition 9 as well as opponents of the bill, mostly
activists, prison lawyers, and academics.7 The debate that
followed played out as an excruciatingly tense exercise in
opposites: commonsense, everyday justice language used
by the proponents of the VBRA was marked by seemingly
irreconcilable dichotomies, for example, victim/criminal,
innocence/guilt, public safety/danger.

The extreme polarity of positions taken between
proponents and opponents of Proposition 9, The Victims’
Bill of Rights Act, and the difficulty of adequately
articulating a response, left many of us feeling battered and
worn. We lacked words for what felt intrinsically unjust
about the proposed VBRA. At the core of the debate was
the proponents’ claims to rights as crime victims and the
fundamental tension between orthodox and critical
criminology—that is, the personal-harms versus social-
harms focus of each side, which fueled the debate over this
new law. Michalowski (2009) states,

Whereas mainstream criminology’s focus is on
interpersonal aspects of crime, critical
criminology explores the states’ social harms.
While the ameliorative model relies on

Beck/ Western Criminology Review 11(1), 20-36 (2010)

23

determining individual motivations, etc. critical
criminologists ask the larger question of what
constitutes crime.

Normative or orthodox criminology is characterized by
legal formalism, such that only acts designated by law are
objects of formal legal study. It supports an ameliorative
justice model, which only adjudicates interpersonal harms,
rather than addressing harms and crimes that are
committed by the state (including those inflicted by
punitive crime policy) or by institutions upon
communities. In the ameliorative justice model the entire
focus is on mens rea, or individual intention, with regard
to crime (Michalowski 2009). Social and community
harms perpetuated by the state and by institutions are
omitted from mainstream criminological discourse. In the
case of the VBRA, victims’ rights groups presented
themselves as merely upholding the individual rights of
crime victims—the right to protection against individual
perpetrators of violent crime. Nowhere in their discourse
was there mention or acknowledgement of potential unfair
and unequal effects of this law, or the injustice it could
incur for certain communities, let alone of broader social
causes of crime. The exclusive focus of Proposition
9/VBRA proponents on interpersonal harms or
ameliorative justice is founded on, and bolstered by, the
victim/criminal dichotomy and claims to rights. Consider
the following statements made by the VBRA proponents
(emphases added):

• “This bill only goes after those who show no
remorse.” (Mitch Zak, Yes on Proposition 9
Campaign P.R. Manager, 2008)

• “Proposition 9 is simply about giving more rights to

victims…it puts the constitutional rights of crime
victims on an equal playing field with those of
defendants.” (Mitch Zak, Yes on Proposition 9
Campaign, 2008)

• “[Proposition 9] prohibits early release policies, so

we won’t forfeit public safety by reducing
overcrowding.” (Belinda Harris-Ritter, crime victim
and attorney, 2008)

These statements reveal the operation of antagonist

dichotomies within justice language. The crime issue
becomes reduced within the ameliorative justice
framework to a matter of interpersonal harms, where rights
claims hold a central place. The commonsense, criminal
justice buzz-words: “lack of remorse,” “victims’ rights,”
and “public safety,” together with liberalist legal discourse
about the “equal playing field,” are used to justify claims
to rights, and provide the vehicles through which crime
victims reduce the terms of debate to a matter of
interpersonal wrongs which must be righted. The claim

that inmates have “no remorse” sets up a strongly
antagonistic dichotomy between the victim and the
(remorseless) offender who, apparently due to an inability
to feel empathy, assumes a monstrous identity.

The Proposition 9/VBRA’s proponents, whose
specific language choices strengthen the focus on
interpersonal harms and ameliorative justice, have set up
three principle polarities through which they frame the
crime issue. Table 1, below, shows how VBRA
proponents’ justice-language claims reduce the complex
issue of crime and harm to what I am calling antagonist
dichotomizes; that is, irreconcilable polarities, which
rationalize an even more punitive response to crime.

Table 1. Individual Harms: Antagonistic Dichotomies

Individual Harms: Antagonistic Dichotomies
 Victims vs. Victimizers
 Safety vs. Danger
 Innocence vs. Guilt

Proposition 9
Increases public safety and
decreases public danger

These language choices function dialectically such
that victim/victimizer are reduced and reified into polar
opposites, as are notions of safety/danger, equal
rights/unequal access to rights, and so on. Moreover, these
sets of antagonist conceptual dichotomies imply the
impossibility of reconciliation. It would appear that victim
status within the ameliorative justice/individual-harms
model encourages and even necessitates polarization of
identities and inherent antagonisms. For example, the
“crime victim” is rendered his or her victim status through
the way in which “victim” conceptually constructs its
opposite (the “criminal,” who is assumed to be violent)
such that victim and victimizer become calcified into
diametrically opposing positions. The crime victim’s
demands for justice in the form of ever harsher
punishment, in turn, seems reasonable, even expected: they
are inherently justified through the oppositional
constructions of “victims’ rights/remorseless criminals,”
innocence/guilt, and “safety/danger.” Significantly, these
victim/criminal, innocence/guilt, safety/danger
dichotomies carry an implicit moral overtone; they elevate
the moral stance of crime victims and demonize offenders,
crystallizing each identity.

Thus, perhaps most significant, the rights-claims by
crime victims produce new kinds of social subjects and
identities. “The crime victim” identity lies at the core of
the Proposition 9/VBRA’s proponents’ justification for a
class of more and harsher punishment; punishment that
would presumably allow crime victims to finally enjoy
what are apparently absent rights to public safety and state
protection against immoral criminals. Moreover,
embedded in these claims is a hidden set of assumptions:
“victims” as an identity becomes a kind of totalized,
perpetual self-righteous identity. The unspoken assumption

Victims’ Rights and Public Safety

24

is that victims could never themselves victimize others (for
example, cause social harm). Additionally proponents’
claim that crime victims deserve “equal rights,” the same
rights as offenders, embodies the absurd assumption that
prisoners in fact enjoy more rights than free citizens. This
is based on the false assumption that because we have a
due process system, prisoners have constitutional rights
that protect them in ways that ordinary citizens do not;
they are part of a “protected” class. Finally, the claim that
passage of the VBRA is a matter of “public safety” which
the public should not “forfeit” by releasing lifers who are
up for parole, assumes that lengthy incarceration makes
society safer.

Ironically, it is these very antagonist dichotomies that
veil social harms. For constructions such as “innocent
victim/guilty criminal” reproduce power relations and hold
implicit racial and gendered meaning within the context of
ameliorative justice struggles and justice discourse
surrounding the Proposition 9/VBRA. In much the same
way as the former Bush administration’s ameliorative
justice claims about “evil-doers” were used to justify war,
Proposition 9 /VBRA advocates’ employment of justice
language and rights claims served a purpose far less noble
than avenging themselves against individual wrongdoers.

In the following sections, I explore how rights claims
by “crime victims,” in conjunction with methodological
individualism (or mainstream criminology’s exclusive
focus on rectifying or reacting to interpersonal harms)
mask social and racial and gender power relations by
masquerading as neutral—as merely a matter of
adjudication between two otherwise equal actors.

Race and the Inequality of “Equal Rights” (for
Victims)

The claim by Mr. Mitch Zak, the Proposition 9/VBRA
campaign’s public relations representative, of merely
“put[ting] victims on an equal playing field with
defendants” is an example of how such liberal concepts of
equality disguise the exercise of power. Michalowski
(2009) points out that “critical criminology seeks to show
where power and domination are obscured behind a veil of
ideology.” As Critical Legal Studies (CLS) has shown,
under liberal forms of government, law purports to
function as neutral but in fact masks power interests and
relations. Kimberle Crenshaw (1995:xxv) argues that,
whereas the liberal legalist tradition viewed law as a mere
mediator of social conflict, critical legal studies revealed
how “legal institutions construct social interests and
relations” (my emphasis). Commonsense concepts of
“victims,” “rights,” “equal protection,” and “the equal
playing field,” within the context of the Proposition
9/VBRA campaign, become highly ideological constructs
that are far from neutral.

How does ideology function with regard to
Proposition 9/The Victims’ Bill of Rights Act? That is,

how do claims to equal rights by crime victims in fact
represent a highly ideological position and set of
assumptions about “criminals,” “victims,” and “rights” that
reproduce race and class domination? To begin with, the
VBRA’s ideological character can be uncovered perhaps
most obviously in several striking and fundamental
contradictions in the logic of this law. First, contrary to the
claim by Mr. Zak (2008) that “Proposition 9 is simply
about giving more rights to victims…[by putting] the
constitutional rights of crime victims on an equal playing
field with those of defendants” (my emphasis), this law
does more than neutrally “mediate the threat posed by
others [where citizens belong to a] community of equals”
(Cook 1995:88), as legal formalism holds. Ironically, both
sides do not share equal social status to begin with, nor are
they equally rights-bearing citizens. The proponents of
Proponents of Proposition 9/VBRA are free citizens
seeking “equal rights” with prisoners—an explicitly un-
free and incarcerated population. Vast social class and
racial differences also exist between these two groups.

Second, the Proposition 9/VBRA further subjugates
those already incarcerated by undermining their
constitutional rights (including the right to counsel, the
overriding of the jury decision of life with the possibility
of parole, and other rights).8 In this way, what parades as
justice— avenging crime victims and punishing criminals-
-disguises attempts to deny prisoners their constitutional
rights.

Third, the ideological nature of the Proposition
9/VBRA is seen in its deeply flawed overall logic. It places
an irrational focus on those inmates (lifers) who are the
least likely to be paroled in California in the first place; or
if they are by chance paroled, to recidivate.9 In short, the
illogic of proponents’ calls for “equal rights with
defendants,” the challenge this law poses to prisoners’
constitutional rights, and proponents’ insistence on
keeping the least-likely-to-be-paroled group of offenders
behind bars for longer, all belie the neutrality of their equal
rights-claims.

Law, I am therefore suggesting, does not merely
arbitrate interpersonal wrongs between citizens, nor does it
delineate “neutral boundaries defining the liberal equality
of individuals within a community of equals” (Cook 1995).
Rather, in states under liberal forms of government that are
marked by class and racial inequality, ameliorative justice
necessarily becomes far more than the neutral mediation of
conflicts between members of a community of equals. The
Proposition 9/Victims’ Bill of Rights Act, through
invoking the victim/criminal dichotomy and through its
rights claims, masquerades as neutral but in fact
demarcates race, gender, and class boundaries.

THE VICTIM IDENTITY
One way race, gender, and class boundaries are

maintained is through the very construction of “the crime

Beck/ Western Criminology Review 11(1), 20-36 (2010)

25

victim” identity and through victims’ claims to rights. At
the San Quentin symposium, Proposition 9/VBRA
proponents reflected their strong investment in the victim
identity. This identity was strengthened through repetition
of personal stories of victimization and the details of the
crimes committed upon them or their families (which in
turn bolstered their demands for ameliorative justice). For
example, before the roomful of prisoners, Ms. Belinda
Harris-Ritter, an attorney and self-described crime victim,
recounted the night an intruder drove onto her family’s
property and murdered both of her parents in cold blood.
She has repeated this story many times in her victims’
rights advocacy work. Similarly, the effect of the killings
on her sisters has also reinforced her identity as a victim.
She explained: “My sisters will always have to live with
this: it’s affected them to this day,” equating their
symptoms to Post Traumatic Stress Dis (Harris-Ritter
2008). The retelling of these stories and horrific events
allows these violations to be relived again and again,
reinforcing and reifying the victim identity. For example,
later that day, the same story was repeated to the CBS
Television reporter covering the symposium. Harris-Ritter
(2008) said, “I would …