Introduction

Over the past few years, the United States (US) has witnessed a resurgence of activism, attention, and protests addressing a variety of social ills including gun violence, police violence, and sexual violence. Most often, high-profile cases that spark public interest in these issues are presented in media as discrete, mutually exclusive incidents distinct from one another in causes and consequences. Despite attempts by activists, advocates, scholars, and victims to articulate how structural factors reinforce and reproduce social inequalities that impede justice, media coverage focuses primarily on judicial outcomes of singular high-profile cases. This narrow focal point limits our ability to conceive of justice beyond the individual level and hinders recognition of the linkages between capitalism, gender-based violence, homophobia, militarism, patriarchy, police violence, state violence, white supremacy, and other forms of oppression (Ortiz 2019; Ritchie 2017).

This study explores these dynamics through a qualitative thematic press analysis (Greer and McLaughlin 2012) of two high-profile incidents emblematic of gender violence and racist police violence—the Stanford rape caseFootnote 1 in 2015 and the police killing of Philando Castile in Minnesota in 2016. While the incidents were embedded in different social contexts and comprised different forms of violence, we found that media coverage of each shared important similarities. The two cases fit what Chancer (2005) describes as “provoking assaults”—high-profile cases that receive massive amounts of media coverage that function simultaneously as legal cases and social causes. As such, they may be described as “vehicles for crystallizing, debating, and attempting to resolve contemporary social problems” (Chancer 2005: 5). Moreover, news coverage of these two incidents reflected Chancer’s (2005: 13) description of “partialization”—a “two-sided mode of argumentation” that results in a discursive “legal framework aimed at producing decisive ‘either/or’ verdicts” that limit how justice may be perceived and achieved. The cases are, at once, polarizing incidents that are resolved through individual judicial processes, while also symbolic of larger cultural, legal and social currents.

In our analysis, we focus on one overarching frame in the coverage—that of “system failure”—the acknowledgment that the criminal justice system fails to achieve justice. We use newspaper data to document the three competing articulations of system failure: one focused on case outcomes in the criminal justice system, another invoking populist critiques of the system, and the third calling for alternative conceptions of justice, beyond criminal justice institutions. The first of these narratives exemplifies Chancer’s (2005) concept of “partialization,” the second threatens to subsume progressive causes within carceral politics, while the third arguably offers a more transformational discourse. These articulations constitute hard news interpretation of the cases and journalists’ efforts to relay activist claims. To supplement our analysis, we also examine online comments, editorials, and blog posts from activists and experts to better illuminate how these articulations traveled the diverse and multipart contemporary mediascape (Greer and McLaughlin 2012). We suggest that understanding the complexities of these various articulations is the key to interpreting how the social meaning of justice circulates and is ultimately transformed, contextualizing both cases within the re-emergence of broader social justice movements that offer powerful critiques of patriarchy, white supremacy, and the toxicity of neoliberal logics.

In the following parts, we discuss the social context characterized by numerous ongoing social justice movements, including those focusing on racism in the criminal justice system. We then present the methodology underpinning our analysis and summarize the cases. After that, we explain the differential forms of system failure in our findings section and then discuss the implications of our findings relative to the broader social construction of justice.

Social Context: Upheaval, Discontent, and Resentment

In the first decades of the twenty-first century, the US has witnessed millions of people take to the streets to march in solidarity for racial, gender, and economic justice. For example, both the Women’s March in 2017 and the Women’s March in 2018 drew unprecedented crowds, followed by a spectacular increase in women running for local and national political offices (Stefansky 2018). A few years earlier, in 2011, the Occupy Wall Street movement galvanized Americans and directed public attention to vast economic inequalities in America (Da Silva 2018). The Black Lives Matter (BLM) movement, initiated online by Patrice Cullors, Alicia Garza, and Opal Tometi, emerged after media attention toward police violence, specifically the police killings of a number of unarmed Black people, including Sean Bell, Mike Brown, Eric Garner, Tamir Rice, George Floyd, Breonna Taylor, and notably the acquittal of civilian George Zimmerman in the shooting of unarmed youth Trayvon Martin, among others (King 2015). The BLM movement held several street protests, developed a broad-based social justice platform, and gained national attention (Garza 2016; Taylor 2016). Other marches, such as the March for Science, demanded that politicians take seriously climate change and prioritize science funding. The March for Our Lives in March 2018 called for gun control legislation and brought attention to the massive flow of funding to candidates endorsed by the National Rifle Association. Each of these marches and protests attracted huge crowds in solidarity for their respective causes, and in 2020 the BLM movement organized the largest civil uprising recorded in the US during the twentieth century (Leber 2017; Reilly 2018). Following the killings of George Floyd and Breonna Taylor by police in Minneapolis, Minnesota, and Louisville, Kentucky, respectively, as many as 26 million people attended rallies, protests, and direct actions in the middle of the COVID-19 pandemic (Buchanan, Bui, and Patel 2020).

Although the catalyst for each of these protests is often a single, tragic incident, the massive turnout and engagement by the public indicate that there is a broad-based willingness to understand these individual incidents within an historical context—as part of a larger pattern of social injustice. In other words, these movements function to contextualize individual incidents by highlighting deeply entrenched structural problems.

For context, the Stanford rape case emerged in 2015 in the midst of a surge of popular discourse around rape culture and gender inequalities. As such, the reaction to the case may be considered a precursor to the #MeToo movement. In the years preceding the case, we witnessed increased attention toward various forms of sexual violence, including everyday sexism, online gendered harassment, rape, and sexual assault (Phillips and Chagnon 2020). Public understanding of these dynamics was shaped by discourse around “rape culture”—a concept rooted in 1970s radical feminism that foregrounds patriarchy as a focal point for addressing structural inequalities (Buchwald, Fletcher, and Roth 1995; Griffin 1971; Herman 1979). “Rape culture,” as a concept, is often invoked in response to a variety of attitudes and behaviors perceived as accepting or permitting sexual violence, including the perpetuation of rape myths, the persistence of victim-blaming, and the sexual assault “justice gap,” which refers to the attrition of cases reported and processed through the criminal justice system. Whether highlighting the massive numbers of untested rape kits, low rates of reporting or, more generally, the failures of rape legal reform, “rape culture” discourse reflects a sense that justice for victims of sexual violence is elusive (Campbell et al. 2018; Corrigan 2014; O’Neal 2019).

There is, however, no single, monolithic response to this overarching sense of injustice. Since the early articulations of “rape culture,” a host of feminist perspectives have arisen that foreground economic and/or racial/ethnic inequalities (Thuma 2019). For example, Black feminists have been at the forefront of urging an intersectional approach that avoids bifurcation or the simple layering of race and class onto gendered experiences (Crenshaw 1989; Henne and Troshynski 2019; Richie 2012; Thuma 2019; Walkington 2020). This race-conscious approach recognizes ways that the mainstream feminist movement historically neglected a consideration of how sexism is complicated by class inequities, institutionalized racism, and “the particular way that White patriarchy imparts racial hierarchy on black bodies” (Richie 2012: 128). Moreover, the historical convergence of the feminist movement with state resources to combat violence against women functioned to legitimate certain forms of White victimhood to the exclusion of the racially and economically marginalized and contributed to the rise of what Richie (2012) calls the “prison nation” (see also Ritchie 2017). In this light, punitive policies including over-reliance on law enforcement and lengthy terms of incarceration in response to the pervasiveness of “rape culture”—what some call “carceral feminism”—are at odds with achieving justice (Musto 2019). These tensions continue to unfold in media narratives around “rape culture” and #MeToo, even as more nuanced, transformative alternatives for rape justice are considered in the media and public sphere (Fileborn and Loney-Howes 2019; Henry, Powell, and Flynn 2015).

The Castile case occurred in 2016 on the heels of the emergence of BLM during a time of increased attention toward police shootings of young, Black men and amidst protests of racial and economic inequalities. The movement erupted in an era of renewed attention toward civil rights in the US focused on racism in the criminal justice system (Alexander 2010; Richie 2012; Ritchie 2017; Taylor 2016). Historically, the tensions between police and communities of color have been an important part of Black civil rights struggles in the US (Alexander 2010; Wacquant 2009). While some roots of US policing can be traced to runaway slave patrols in the South, more recent civil rights history is full of incidents involving racism and policing. Civil rights protests in the middle of the twentieth century were often met with harsh police repression. The Black Panthers formed in Oakland, California, to resist police brutality, and nearly every race riot throughout the twentieth century was triggered by police brutality incidents. History has repeated itself: one of the major flashpoints inspiring BLM has been a series of highly publicized killings of young Black men and women by police and vigilantes, and ineffectual responses by officials.

BLM has expanded beyond a series of public protests into other spheres, such as legislative and electoral political campaigns, including explicit demands for decarceration, economic justice, and investment in minority communities, and more recently, defunding the police (Fernandez 2020; Taylor 2016). The core critique leveled by the BLM movement is that Black Americans enjoy a lesser quality of justice than Whites (or no justice at all) and are deprived of human dignity. Black lives are devalued in the justice system (and other spheres of society), as evidenced by racialized mass incarceration and police killings of Black people with impunity (Crenshaw and Richie 2015; King 2015). This extends beyond the injustices experienced by young Black men to others who are marginalized, including “black queer and trans folks, disabled folks, black undocumented folks, folks with records, women and all lives along the gender spectrum” (Garza 2016: 25). For example, #SayHerName was created to illuminate the pervasive and gendered experiences women of color have with police violence (Crenshaw and Ritchie 2015).

While some attempt to erase “Black” from Lives that Matter, retorting that “All Lives Matter,” the BLM movement brings attention to those rendered invisible. Emphasizing the importance of strategically centering “Black” in “Black Lives Matter,” Garza (2016: 27) writes that “when dropping the black you are, intentionally or unintentionally erasing black folks from the conversation or homogenizing very different experiences. The legacy and prevalence of anti-black racism and heteropatriarchy is a lynchpin holding together this unsustainable economy.” Overall, BLM is an inclusive cry for justice that encompasses structural economic justice and cultural affirmation of the value of Black lives.

Central to the discourse around economic, gender, and racial justice are expressions of discontent, rage, and resentment—often expressed by a similar sentiment that the “system has failed.” Though there is a willingness to recognize patterns of social injustice within a variety of domains, the media most often present individual incidents as separate and distinct issues—for example that of sexual violence against primarily White women or police brutality against primarily young, Black men. Moreover, as Iyengar (1994) points out, episodic media reporting (focusing on a singular incident) rather than thematic reporting (providing broader social and historical context) emphasizes individual responsibility while minimizing societal accountability (see also Surette 2011). As a result, these issues are often tackled in isolation with a tendency to focus on judicial solutions in individual cases rather than more ambitious socioeconomic reforms.

In what follows, we offer an analysis of how “system failure” is often presented in isolation from acknowledgment of broader economic and social forms of structural oppression. To do so, we examine media coverage of two high-profile cases—the 2015 Stanford rape case and the 2016 police shooting of Philando Castile. We analyze media and audience responses to each case and characterize these discourses through the overarching framework of “system failure” to understand how diverse narratives were applied that encouraged divergent views of justice.

Methods

In this study, we use a qualitative thematic press analysis to identify and analyze what we believe to be the most salient discourse common between both cases (Entman 1993; Greer and McLaughlin 2013). A thematic press analysis is based on multiple forms of data from diverse media collected in an effort to map out the mediated construction of a case. This method engages with cultural criminological notions of the nonlinear nature of discourse and its evolution, characterized by looping and spiraling of narratives and images that bend back, distort, amplify, construct and re-construct social meaning (e.g., Ferrell 2013). We set out to understand how system failure discourse surrounding each case was negotiated and evolved following formal criminal justice interventions.

Data and Analysis

Our data come from three sources: (1) news coverage in the top-ten circulating US newspapersFootnote 2; (2) comments posted on The New York Times website and RedditFootnote 3; and (3) a purposive selection of other articles and commentary on each case. To gather newspaper data, we used keyword searches in the ProQuest and LexisNexis databases (e.g., “Brock Turner,” “Stanford rape,” “Philando Castile”). The total number of articles we examined across newspaper coverage and editorial content was 227. In addition, we gathered data on reactions from members of the public by collecting reader comments on The New York Times website and Reddit forums, a helpful, if imperfect window into audience reception.

We chose The New York Times because it is the newspaper of record for the US and allows for the sorting of comments based on the rankings given by other site users. The rankings system allowed us to focus on comments of which multiple readers expressed approval, meaning that they were indicative of opinions from more than a single reader, most often being validated by dozens to hundreds of other readers. We also used Reddit to collect comments because users rank comments through a point system. Both sites are popular venues for debate and provide triangulation in identifying key narratives relevant to each case.

Our examination relied on a frame analysis approach (Goffman 1974; Iyengar 1994; Johnson-Cartee 2005). We identified the diagnostic and prescriptive claims asserted in coverage, which answered key framing questions such as: “what is this a case of?”; “what is the cause?”; and “what can/should be done?” (Iyengar 1994). While frame analysis is sometimes a quantitative endeavor, we took an explicitly qualitative approach to our frame analysis because we were less focused on the occurrence and regularity with which specific frames appeared and more on mapping the narratives on which the overall discourse was based. Thus, we examined hard news coverage as the major forum through which claims were made by activists, advocates, and experts, while also using audience reception data and editorial-oriented media to illuminate the negotiation of these claims occurring outside of hard news coverage. Moreover, we sought to understand how these narratives resonated with prominent ideas about justice at the intersection of racism and sexual violence. Thus, rather than counting things, we sought to identify how narratives were presented in ways that are culturally familiar—and therefore salient (Entman 1993).

Our coding scheme was a result of examining the data and comparing our observations with theoretical postulations on which key concepts were based. After various iterations, we decided to focus this study on one particular frame—that of “system failure.” We acknowledge that there are other important frames that may be interpreted from the data, but we focus on system failure—meaning framing that implied these cases were ones in which the system had not produced outcomes consistent with various notions of justice—because we found it to be salient and exceptionally useful for furthering our understandings of how justice is perceived.

The Cases

The Stanford Rape Case

On the night of January 18, 2015, police arrived on the scene at Stanford University's campus as two Swedish graduate students detained freshman and swim team member Brock Turner. The students had witnessed Turner assaulting a woman behind a dumpster outside of a fraternity party. Police reported that Turner’s appearance was “disheveled” and that a bulge consistent with an erect penis was visible in his pants. The woman who Turner had been witnessed attacking was unconscious and her clothes had been partially removed and covered in pine needles. Turner was arrested, charged, and convicted of sexual assault. Though prosecutors sought a sentence of six to fourteen years, Judge Aaron Persky of the Superior Court of California, County of Santa Clara, issued a sentence of six months, asserting that a longer sentence would have an outsized adverse effect on Turner’s life. Turner was released after serving three months (e.g., Bazelon 2016). The Turner sentence sparked robust public outcry, not only because of its perceived leniency, but because of the sympathy Judge Persky expressed for Turner while justifying the sentence he handed down (Phillips and Chagnon 2018)—sympathy rooted in racial and class privilege.

The case garnered significant media attention and fits the criteria of a “provoking assault,” as described by Chancer (2005). With “provoking assaults,” legal cases and social issues merge, resulting in a “partialization” process which posits a dichotomous outcome. In addition, with “provoking assaults,” debate emerges around “whether responsibility for a given crime rests with individuals or social forces, and whether apparent perpetrators were actually victimized, or apparent victims were culpable to some extent” (Chancer 2005: 7). Much coverage of the Stanford case, especially that focused on feminist activism, posited the verdict was a prominent example of “rape culture” and of White male privilege trumping justice. Others argued that calls for harsher punishment bolstered the carceral state by reinforcing mass incarceration as the primary solution to violence against women (for more details on these dynamics, see below and Phillips and Chagnon 2018). Moreover, reaction to the case resulted in two significant criminal justice developments: a successful judicial recall campaign and the passage of mandatory minimum legislation in California, which requires prison time for a sexual assault perpetrated when the victim is unconscious or otherwise incapacitated and unable to resist.Footnote 4 Like other “provoking assaults,” formal criminal justice outcomes in this case were unsatisfactory and prompted divisive social reaction that enhanced the symbolic cultural and political status of the case.

The Castile Case

On July 6, 2016, approximately a year and a half after the Stanford rape case, Philando Castile was shot by Jeronimo Yanez, a St. Anthony, Minnesota, police officer. Yanez was charged with manslaughter, but his eventual acquittal catalyzed discourse around the broader issue of formal accountability, or lack thereof, regarding police officers’ use of force and systemic racism in the criminal justice.

Yanez had pulled Castile over for a broken taillight, but reports indicated the officer believed Castile matched the description of a burglary suspect, judged from his “wide set nose.” Forty seconds after Yanez approached the car, he shot Castile seven times, killing him. Dashcam video from Yanez’s cruiser shows him approaching the car and asking for license, registration and proof of insurance. Castile supplied the registration immediately, and then notified Yanez, in a calm and collected voice, that he was carrying a licensed firearm. While Castile reached for his wallet (according to his girlfriend Diamond Reynolds’ account), Yanez at first said steadily—and then screamed—“Don’t pull it out!”—ostensibly in reference to the gun. It is not clear what happened next from the video, but within short order, Yanez reached for his own gun and shot Castile, while his girlfriend and daughter watched from inside the car. In the aftermath, Reynolds began livestreaming the events on Facebook, a video which went viral and was viewed millions of times. The video showed Reynolds’ distraught reaction as she witnessed Castile bleed to death. An investigation by the Minnesota Bureau of Criminal Apprehension yielded an indictment of Yanez for manslaughter and criminal negligence. On May 31, 2017, however, Yanez was acquitted of all charges, eliciting uproar and protests in Minnesota and several US cities (Kirkos and Ellis 2017).

In this case, much of the coverage foregrounded the judicial outcome by focusing on the legal framework. That is, the “partialization” process was advanced by media focusing narrowly on what happened at the time of the shooting. For example, articles that featured law enforcement and legal experts “breaking down the dash cam” by examining the images frame-by-frame, ultimately facilitated substantial debate around Castile’s behavior. As is common in “provoking assaults,” the victim’s actions were evaluated to determine some level of provocation or culpability. Other articles reported narrowly on judicial processes, lawsuit outcomes, and possible defense strategies with little consideration of broader social and cultural contexts contributing to the shooting in the first place. As a result, perceptions of justice remained dependent on whether or not the officer deserved to be convicted and tended to neglect the harrowing history of state violence committed against Black people. As such, for those advocating that Black lives do matter, the acquittal became emblematic of continual racial injustices within the criminal justice system.

Findings

The System Has Failed Us

In the media coverage and commentary of both cases, we found that system failure was a prominent discursive frame used to express dissatisfaction with formal criminal justice outcomes. This is significant because system failure was not necessarily synonymous with criminal charges, conviction, or sentencing. Rather, we found that perceptions of system failure were contested within the social and political contexts from which they occurred. For example, although Yanez was indicted and ultimately acquitted, while Turner was convicted, sentenced, and served time, both cases resulted in a perceived lack of accountability, spurring public outrage.

In our analysis, we found that system failure is articulated in three ways. First—and most frequently—the system failure frame functions in a similar way to Chancer’s notion of “partialization” and steers public attention toward an individualistic notion of justice by focusing on the prosecution, conviction, and punishment of singular perpetrators rather than broad-based social change. In this context, the adjudication of wider truths relies on individual judicial processes, verdicts, and sentences. Second, the system failure frame encourages punitive social reactions and advances harsh criminal justice punishments. This ultimately drives “penal populism”—the widespread belief that the justice system functions more to protect the rights of offenders than it does to serve the interests of law-abiding citizens and preserve public safety (Pratt 2006; Shammas 2019). Third, we found that at times, the system failure frame functions in a more transformative manner, in which the discourse—particularly that surrounding the Castile case—better accorded with the movements’ goals to end socioeconomic inequalities and patriarchal and racist violence.

System Failure: Individualized Justice

In both cases, a system failure frame emerged implicating systemic racism and gendered violence. For example, in the aftermath of the Castile shooting, the case was framed frequently as part of the broader issue of police brutality in the US. In response to the acquittal of Officer Yanez, President Obama called questionable police shootings an “American issue” and stated, “They’re symptomatic of a broader set of racial disparities that exist in our criminal justice system” (quoted in Furber and Pérez-Peña 2016). Like President Obama, writer/activist Shaun King placed the incident in the wider context of increased reports of police shootings and ongoing disappointments in formal accountability. Writing in the Daily News, King (2017) stated: “Families and communities are repeatedly being told to stay calm and trust the system, but only a damn fool would trust this system.”

This distrust of the system echoed throughout the discourse. Journalist Chao Xiong (2017), writing for the Minneapolis Star Tribune remarked, “Castile’s family called the decision proof of a dysfunctional criminal justice system, while prosecutors cautioned the public to respect the jury’s verdict ‘because that is the fundamental premise of the rule of law’.”

Moreover, several reports commented on how the acquittal was symptomatic of the ways that the justice system fails Black people. For example, the media quoted Philando Castile’s mother, Valerie, frequently. Here, she expresses her disappointment and explicitly condemns systemic failures: “‘There has always been a systemic problem in the state of Minnesota, and me thinking, common sense that we would get justice,’ she said. ‘But nevertheless the system continues to fail black people’” (Xiong 2017).

Indeed, headlines focused on patterns of under-enforcement—specifically the relative lack of formal accountability in police-involved shootings:

“Why the federal investigation of Philando Castile’s death will fail”—MinnPost, August 12, 2016 (Harrison 2016).


“21 Times Cops Weren’t Held Accountable For The Death Of Black Victims”—HuffPost, August 27, 2016 (Workneh and Finley 2016).


“Why Police Officers Aren't Held Accountable When They Kill People”—Teen Vogue, June 17, 2017 (Samudzi 2017).


“The rare indictment and trial of Jeronimo Yanez ‘proves white privilege exists and protects white cops”’—Twin Cities Daily Planet, January 5, 2017 (Gomez 2017).


“The cop who shot Philando Castile was cleared of manslaughter. His being charged was still rare”—Vox, June 16, 2017 (Lopez 2017).

In this case, the indictment was insufficient as a measure of justice. Instead, the lack of conviction was perceived as indicative of system failure. For example, one Daily News (Gioino 2017) report covering the protests stated:

More than 200 New Yorkers took to the streets Saturday to protest the acquittal of the Minnesota cop who fatally shot Philando Castile.... ‘I’m out here like I always come out here because justice has not been served,’ said Jabari Brisport, 29. ‘And we can’t let it slide every time a murderer, even one sanctioned by the government, commits a crime.

Brisport, a New Yorker who protested the shooting of Castile asserted explicitly that the demonstrations had been spurred by the fact that a violent criminal had been “let off” by the justice system. Similarly, some online commenters perceived the verdict as evidence of system failure. One Reddit user commented,

You know, I was always skeptical of BLM. I thought they were jumping to conclusions before the actual investigations. When Philando Castile was murdered along with the other incident with Officer Slager in South Carolina, I used these as examples to reassure people that justice would be served and called for trust into our judicial system. I was wrong. Very sad day for America.

Unlike the Yanez acquittal, the Stanford rape case resulted in a conviction. Still, system failure was invoked often in response to the initial six-month sentence of incarceration that many perceived as lenient. Frequently, the sentence was held up as an example of “rape culture,” broadly understood as the cultural tolerance and condoning of sexual violence (Buchwald et al. 1995; Henry et al. 2015; Phillips 2016). One article in The Guardian declared, “Brock Turner, his father, and Judge Aaron Persky provided a Fisher Price-level lesson plan for recognizing White privilege and rape culture” (Young 2016). Similarly, Michele Landis Dauber, a professor at Stanford Law School and the chair of the judicial recall campaign, implicated “rape culture” in her move to unseat Judge Persky. Outraged over Turner’s sentence, she stated, “Violence against women is a voting issue. We are going to vote ‘no’ on rape culture,” Dauber said. “We aren’t going to stop with the recall of Aaron Persky” (Doiy 2017).

Reader comments from The New York Times and comments on Reddit mentioned repeatedly the case as exemplary of “rape culture.” One Reddit user, commenting on the Turner verdict, wrote: “When feminists use phrases like ‘rape culture’ this is the kind of thing they are referring to. Very easy to dismiss as an overly dramatic statement but it's really there, and rarely does it rear its ugly head in such a public, disgraceful way.” Passages like these engage key components of “rape culture” critiques, such as the perpetration of rape by seemingly “normal” men and the tendency to excuse rape in institutional settings like the criminal justice system.

In sum, responses to each case were fairly consistent across outlets in that individual case outcomes—whether an acquittal or a “light” sentence—were perceived as system failure. Most of the concerns that were expressed were targeted at or limited to the criminal justice system, rather than identifying racism and/or sexism running throughout the social system overall. Moreover, the focus on trial outcomes was consistent with Chancer’s (2005) conception of “partialization”: the trials were seen as proxies for larger political struggles, specifically anti-racism and anti-rape activism. What might be viewed initially as relatively progressive discourse of structural critique instead veered frequently toward penal populism.

System Failure: Penal Populism

“Penal populism” is a discourse asserting that the criminal justice system does little for everyday citizens or crime victims, while deferring to the rights and welfare of those accused and convicted of crimes (Pratt 2006). Put simply, it promotes the idea that the system works for “them” and not “us” and encourages formal, harsh criminal justice punishments. After the Stanford rape case, this penal populism was apparent in two key events: the passage of mandatory minimums by the California legislature and a campaign to recall Judge Aaron Perksy. First, the California legislature passed a law mandating prison time for rape “including instances in which the victims were unconscious or too intoxicated to consent” (Garcia 2016; Ulloa 2016). Second, feminist activists, led by Professor Dauber, launched a successful recall campaign against Judge Persky, claiming his record exhibited a pattern of preferential treatment of privileged suspects accused of abusing women and a failure of the system to appropriately address sexual violence (Arkin 2018).

In keeping with themes of penal populism, various articles highlighted claims-makers in the wake of the verdict that demonized the accused, lobbied for harsher punishment, and politicized the case (Cauterucci 2016; Levin 2016). One article, from the New York Post remarked on the case as such: “A father who whined that his rapist son shouldn’t do hard time because it would be ‘a steep price... for 20 min of action’ seemed to get his way—when a judge gave the ex-Stanford University student a slap on the wrist Monday” (Golding 2016).

Online comments also exhibited punitive sentiment and strong hostility towards the Turners. For instance, a Reddit commenter wrote, “If he has a father that says such things, no wonder the son has turned into a vile rapist. The apple never rots far from the tree!” The tone of media discussion and online conversations regarding People v. Turner exemplified the notion of system failure predicated on a punitive, carceral politics that equated severity of punishment with successful delivery of justice—a central element in penal populism. Moreover, such conversations and discussions performed the “partializing” role of asking the public to see the justice system as working for “us” or “them.”

It is necessary to note that the punitive reactions to the Stanford rape case verdict eventually elicited a backlash in its own right—one that highlights the potential tensions between feminist and anti-racism movements, particularly when high-profile cases are seen to pit progressive causes against each other (Chancer 1998). Justice scholars and prison reform activists penned editorials and essays, as well as blog posts, condemning demands for harsher punishment and the effort to recall Judge Persky, often directing their criticism at feminist activists. Reformers identified the recall campaign as an instance of carceral feminism—feminist efforts that use the carceral state to address gender violence (Bernstein 2012). Justice reformers offered a counter-narrative to the “rape culture” narrative—one that argued that punitive reactions to the case fed into racialized mass incarceration (Phillips and Chagnon 2018). For example, Khan (2016), a public defender, wrote an essay emphasizing the collateral consequences of convictions for a sex offense, such as placement on a registry, and argued against instituting mandatory minimums because they are a prime cause of mass incarceration. Justice reformers raised valid questions regarding conceptions of justice beyond conviction or punishment of singular offenders. Thus, the penal populist reactions to the Stanford rape case were locked in a dialectic with justice reformer critiques, meaning that not only did the case generate penal populist discourse and events (e.g., new mandatory minimums, the Persky recall), but it also spurred a more nuanced debate regarding the rape-justice gap and responses that exacerbate carceral politics.

The Castile verdict yielded outrage similar to that which emerged in the wake of the Stanford rape case although, to our knowledge, it did not lead to the imposition of new criminal penalties or alter dramatically the probability of indictment of officers involved in questionable shootings. As discussed above, the case occurred at a point when BLM was emerging as a prominent movement in US culture sensitive to the reluctance of marginalized populations to depend on the criminal justice system to achieve justice. Coverage reflected the fractured ways that (in)justice is experienced within minority communities by way of under-enforcement and over-enforcement. As such, the Castile case became part of a broader effort to raise awareness about racism and class stratification, and to dismantle white supremacy. The media’s focus on individual trial processes and outcomes, however, steers audience attention away from broader social facts. In the next section, we show how transformative justice narratives are articulated in the wake of unsatisfactory criminal justice outcomes.

System Failure: Transformative Justice

Both cases elicited arguments about system failure grounded in carceral justice, emphasizing the lack of satisfactory formal outcomes. As we have noted above, however, responses to each case were also diverse and complex. Although hard news coverage relied mainly on carceral justice narratives, at times, a more holistic vision of justice emerged in the Castile coverage. Commentators highlighted systemic problems by offering historical context for the linkages between racialized policing practices (LaFraniere and Smith 2016), providing evidence of the harms of everyday racial oppressions (DeVega 2017; Mystal 2017), and emphasizing the life-and-death necessity of “the talk” documenting how parents communicate to their children about how to stay safe in the event of a police encounter (Bailey 2017; Holley 2016).

In The New York Times, law professor Elise Boddie (2017) connected daily racial indignities to larger structural problems and emphasized the overwhelming power of racialized state violence: “The problems we face are not only about the glaring wrongs of the criminal justice system, the structural barriers and persistent inequities that shut out opportunities, but the grinding daily hassles that deny black people the ability to just be.” Similarly, in one feature in The Washington Post (Goyette 2017), activists’ claims extended beyond the call for criminal conviction and instead focused on a broader vision of social justice:

Ali said she thinks activism needs to move beyond ‘galvanizing around every murder’ to address deeper issues and policy. Her organization plans to focus on a campaign to remove police officers from public schools. Others, like community organizer Chauntyll Allen, are directing their energy to get black candidates elected to local office in Minnesota. For her, the verdict could also serve as a wake-up call for older, more well-off African Americans who have viewed police shootings as a problem that didn’t affect them.

Another essay in Teen Vogue commented on how formal criminal justice was only a small part of a larger racial justice project. In linking the Castile case to other instances of racial injustice at the hands of law enforcement, the author (Samudzi 2017) wrote:

This accountability has been seen as some kind of movement toward justice by many activists, including local organizers mobilizing around police violence, because so many cases of police violence in the United States end with no indictment for the officers involved. But a guilty verdict of an individual officer is not an indictment of the brokenness of the American criminal justice system. Likewise, a guilty verdict is a reflection of both the individual innocence of a slain person and the exceptional guilt of the single officer in question, rather than a broader anti-racist critique of policing.

More succinctly, an editorial in the San Antonio Express-News read, “Seeking justice in the criminal courts for brutality is like fetching water with a bucket full of holes.” Such arguments still fall within the framework of system failure, but extend beyond calls for individual instances of conviction and punishment. Likewise, despite responses to the Stanford rape case that were grounded in carceral politics, we found a diverse set of demands for accountability that moved beyond long-term incarceration or lifetime sex registration requirements that open possibilities toward new forms of rape justice.

Overall, our analysis suggests media coverage in the Castile case was more successful in elevating transformative justice than that of the Stanford rape case. The reaction to the Castile case resulted in no concrete outcomes that exacerbated carceral politics, such as the legislation passed in the wake of the Stanford rape case, nor are we aware of any such developments springing from the BLM movement more broadly.Footnote 5 We suggest this may be due to the already established BLM movement that works toward eliminating multidimensional oppression(s) with goals that include widespread economic and racial justice reforms (Taylor 2016). We also consider that the penal populist reaction to the Stanford rape case evolved from longstanding notions of “ideal” victimhood around determinations of who and what type of person is deserving of justice (Greer 2003). The consequence is that by positing the dismantling of white supremacy and patriarchy as an either/or, we leave those marginalized at risk for both interpersonal and state violence.

Both cases became symbolic of issues well beyond their individual cases. Hard news coverage often framed public outrage as a reaction to unacceptable criminal justice outcomes and a failure of the justice system to ensure accountability for perpetrators of violence. This system failure frame became salient as the cases emerged as symbolic of social injustice. The coverage of the Stanford rape case posited a divisive tension between justice reformers and anti-rape activists that entailed accusations of feminist complicity in carceral justice politics. Yet, such accusations were unfair in that some narratives were grounded in a punitive, carceral justice politics, while others voiced a desire for justice that transcends punishment of individual offenders to broad-based social change. In the next part, we discuss the implications of these findings.

Discussion

To summarize our findings, we examined both cases as they were framed by the notion of system failure. Coverage was consistent with Chancer’s (2005) notion of “partialization,” portraying the cases in terms of trial verdicts and setting up an either/or framework based on the judicial outcome. Moreover, much discourse encouraged the public to see convictions and harsh punishment as the only outcome indicative of a system that worked. Because these cases were seen as symbolic of cultural and political forces, we believe that specifying the various articulations of system failure is important. The shifting articulations of system failure indicate that dominant narratives reliant on prosecution or punishment, undergirded by penal populism, may be rejected in favor of a vision of justice that transcends individual trials and formal criminal justice intervention.

These findings suggest a few lessons. The simplest is that we found the discourse around these provoking assaults to be diverse. Both cases entailed narratives ranging from punitive to transformative. The punitive narratives are understandable given the real harm of gendered and state violence. Yet, they risk cultivating penal populist sentiment that has historically led to destructive justice policies, including sex offender registries, three-strikes laws, and mandatory minimums (Page 2011).

The Stanford rape case, in particular, also lends support to the conclusions of Chancer (1998), as she illustrated how gender and racial justice may be posed as oppositional in press coverage. As some feminists lobbied for harsher punishment of the Brock Turners of the world and justice reformers, in turn, criticized them for engaging in carceral politics, the Stanford rape case laid bare how these movements can work against each other. But these tensions, while actual, are not inevitable. In the Stanford rape case, the tensions were fed by the media’s tendency to simplify feminist discourse into seemingly vengeful demands and that the victim fit with hegemonic notions of victimhood (e.g., young female, presumed White, middle-class) (Christie 1986; Greer 2012). In fact, observers of the case were able to project characteristics onto Jane Doe, such as assumptions of Whiteness, specifically because she refused to allow her name or face to be revealed in an effort to represent “every woman” (WLTX 2016). On the other hand, the positions taken by anti-racism activists in response to the Castile case suggest how they can avoid such tensions by redefining justice in broader terms than those circumscribed within the carceral state. It is also worth noting here the integral role played by the #SayHerName initiative in disrupting the assumption of Black males being the sole victims of racialized carceralism by illuminating the abuses Black women also suffer at the hands of the system (Crenshaw and Richie 2015).

Overall, we find discourse most useful when it posits a system failure narrative that promotes transformative justice. Given the centrality of criminal justice in Western societies, it is likely impossible to prevent high-profile trials from elevating to a status as emblematic of social causes. Yet, we acknowledge the grave pitfalls to practicing such symbolic politics. In a society characterized by widespread punitive sentiment and carceral politics, there is often an assumption that justice is achieved by doling out severe punishment, as evidenced by reactions to the Stanford rape case, among many others. We suggest, however, that the criminal justice system is poorly situated to validate challenges to stratifying systems like patriarchy and white supremacy.

It is also important to note the standards of truth on which trial processes operate, and how they differ from the truth expounded by social movements such as BLM and #MeToo. Trials are based on a narrow empiricism that seeks to adjudicate the truth of incidental claims, specifically the culpability of an accused person. And that empiricism magnifies the uncertainty inherent in cases such as these. On the other hand, social justice movements are based on a far different standard of truth—what one might call “thematic” or “structural truth.” Social justice claims about issues like “rape culture” or judicial racism are not (or should not be) centered on individual cases, but on larger social–structural patterns. These two standards are not necessarily irreconcilable, but they can work against each other. Specifically, as our findings demonstrate, trial processes can serve to undermine social justice narratives. When high-profile cases run contrary to these narratives, they cultivate skepticism or rejection on the part of the wider public. This is a profound consequence of “partialization” (Chancer 2005). Trials as proxies for social justice create a dichotomy of truth, and such absolutism often undermines the claims of activists that are based on a far more nuanced reality. Because of this, linking various forms of social capital to high-profile trials or holding up criminal verdicts as seminal successes may ultimately impede possibilities for transformative justice.

Moreover, as this study shows, media discourse often encourages the conceptualization of system failure centered on punishment rather than social transformation by reframing or simplifying activist perspectives. The media exhibit a tendency to flatten and polarize discourse surrounding emblematic trials. This is likely due to basic journalistic conventions, such as providing “two sides” of each story, and also the centrist liberal politics that so many journalists embrace (Brisman 2012; Gans 1979; Greer and Reiner 2012). Regardless of the cause, media outlets generally place activist camps within a dominant frame that fits best with mainstream politics. In these cases, that frame was one of criminal justice system failures. Perhaps most importantly, this suggests the limited utility of mainstream media for communicating the aims of social movements to the public and, in turn, expanding collective imaginations regarding the concept of justice.

The media not only promote penal populism, but more fundamentally, reinforce the logic that the criminal justice system is the primary way—and, perhaps, the only way—to resolve issues of violence in our society, eliding the question of whether issues like police violence or rape call for alternatives. Thus, when it comes to hard news coverage, the penal populist rhetoric we examined performs a “partializing” role, fixing public attention on trial verdicts as a singular measure of justice.

Consequently, the flattening of discourse into bipolar debates circumscribed within carceral logics marginalizes transformative justice discourse. In this case, ideas about cultural and social structural change, as well as alternative processes, such as restorative justice,Footnote 6 lie only at the edges of public debate, if they emerge at all.

Conclusion

Our relatively narrow data set cannot yield any totalizing or general conclusions. Yet, the narratives we have highlighted here suggest that in the Castile case, nuanced and transformative justice narratives embedded in perceptions of system failure were more likely to emerge than in the Stanford rape case, while that difference may admittedly be modest. Conversely, it seemed that the Stanford rape case remained more entrenched in carceral justice discourse, at least until justice reformers rebutted the feminist discourse promoted widely in mainstream media. We suspect this finding has something to do with both the growing interest and support among the general public for criminal justice reform, as well as the explicitly intersectional nature of the BLM organizing project that has grown mightily in the past half-decade. Women of color pushing intersectional politics and discourse have been a prominent part of BLM since its beginning, raising awareness of the intersections of class, gender, mental health, physical ability, sexuality, and other vectors within the structure of police violence (Crenshaw and Ritchie 2015; Garza 2016). Our intent here is not to denigrate anti-rape activists, nor is it to suggest they lack an intersectional awareness. Moreover, our argument is contingent and a systematic examination of this hypothesis could be the grounds for future research. Future research could also include a study examining these or similar high-profile cases from a social movements perspective to further confirm or refute our conclusions.

High-profile cases offer generative potential in drawing public attention to social issues. Yet, particularly for counterhegemonic movements, they also present pitfalls, such as cooptation or misrepresentation in the media. Anti-racism and anti-rape activism are counterhegemonic projects, sharing a daunting challenge in that the dominant social system within which they reside presents obstacles and divisions to achieving justice. Our primary interest lies in the current mediascape comprised of mainstream journalism, social media, and a complex universe of other sites and spheres of cultural production because we see this mediascape as the primary milieu of discourse in contemporary society. That mediascape is largely a tool of the dominant social system and, as such, tends to obstruct fundamental change, reshaping radical discourse into reformist, or even worse, ineffectual, discourse. Thus, advancing transformative discourse is a fraught exercise to say the least. That means learning from past praxis—both successes and failures. This study hopefully illuminates some helpful lessons of both.