Abolition Constitutionalism
February 11, 2020 10:27 AM   Subscribe

"[C]riminal procedure and punishment in the United States still function to maintain forms of racial subordination that originated in the institution of slavery — despite the dominant constitutional narrative that those forms of subordination were abolished. Key aspects of carceral law enforcement — police, prisons, and the death penalty — can be traced back to slavery and the white supremacist regime that replaced slavery after white terror nullified Reconstruction. Criminal punishment has been instrumental in reinstating the subjugated status of black people and preserving a racial capitalist power structure. Many individuals have therefore concluded that the answer to persistent injustice in criminal law enforcement is not reform; it is prison abolition." By Dorothy E. Roberts in the Harvard Law Review
posted by internet fraud detective squad, station number 9 (11 comments total) 40 users marked this as a favorite
"Some not only have eschewed constitutional law as a means to achieve prison abolition but also have argued that constitutional law serves to facilitate and legitimate state violence against black and other marginalized people."

Quoted for truth. It (the Constitution) has been read differently, of course, but as far as I can tell, the prison system is used primarily to maintain white supremacy.
posted by corvikate at 10:59 AM on February 11 [10 favorites]

It is absolutely insane that the entire penitentiary system has existed up to our times to begin with.

Just the idea that punishment in a theoretically free and liberal society means being placed into a space where privacy, the feeling of safety and protection of the law from other prisoners is taken away, and that this experience somehow makes our collective reality better afterwards is straight up bonkers.

I still personally experience in my family the emotional scars that have resonated directly from the PTSD that my grandparents had after surviving concentration camps over 70 years ago. I can only imagine the hellish emotional landscapes experienced by generations of American minorities enduring much worse standardized 'correctional facilities' and a culture of glorifying them and explaining them as good and necessary for our safety.
posted by mit5urugi at 11:12 AM on February 11 [13 favorites]

I am still going through the article--a lot to unpack. Thank you for posting--fascinating read.
posted by agatha_magatha at 11:45 AM on February 11 [1 favorite]

This seems to be just the introduction... to the forward. The much longer full piece is here, and runs about 120 pages. (And the introduction alone is very promising.)
posted by kaibutsu at 1:00 PM on February 11 [5 favorites]

Thanks, kaibutsu! The use of "Forward" in this context is idiosyncratic--- being invited to write the Forward for this particular annual issue of the Harvard Law Review is considered highly prestigious and serves as a showcase for excellent constitutional scholars.
posted by internet fraud detective squad, station number 9 at 3:44 PM on February 11 [1 favorite]

Also, if you do want to read the longer article, feel free to skip around to whatever interests you. Law review articles are really long, and while many of them build on earlier sections to support later sections, you can usually understand and appreciate the component parts of a law review article without reading the whole thing.
posted by internet fraud detective squad, station number 9 at 3:47 PM on February 11 [4 favorites]

Oh, I haven't time to read this now, but I am so grateful for this post!
posted by allthinky at 5:11 PM on February 11 [1 favorite]

SO I've read a little bit about prison abolitionism, and largely support it. However I feel like there are some people who are not safe for those around them, and are not going to be ok. Like, how many lives can they take before we would consider as humanely possible keeping them out of society? This is a tiny minute fraction of who is prison, but we will still have to deal with it.

I don't believe that restraining people in confined spaces is going to heal their behavior- yet I also don't think that therapy will heal everyone with aggressive or abusive behavior either. Is there a country that has every managed to have a commitment to zero prisons? I'm uncomfortable about it because it's presented without a lot of discussion about what we do instead.

Frequently things like restorative justice completely freak me out because I've seen how they've been implemented, putting weird burdens on abuse survivors to come to some place of healing and forgiveness and "restoration" and I'm just not yet convinced. Rather than having some feel good conversation with people who have done horrible things to me, I would actually rather our society admit they abused at least two of my worst abusers by completely failing their families financially, leaving them to group up in desperate situations where their mothers had to rely on violent abusive men, were overworked and unavailable, using drugs to cope with the adversity and unable to get support healing from their own past trauma; and provide those supports. To me there's no healing of criminal behavior that doesn't address how much we already know about who is statistically most likely to commit violence- men with past history of child abuse and witnessing family violence, low income, and drug/alcohol issues. We can actually address these societal issues by addressing poverty, securing housing and food for all, providing freely accessible healing from trauma and past violence, as well as treatment and support for addictions (which tend to go down when you treat the causes of addictions anyway.)

Treating poverty will also secure that a parent dealing with an abusive partner can leave because they won't have to worry about not being able to feed or house their kid if they leave. Fewer children raised around violence and facing a lifetime of poverty when everyone around them is wealthy, will mean less violence.

I do hope discussions of what prison abolition would look like contain more discussions of how you then deal with people who are physically dangerous to people around them. The prison system has not ever helped with any of the sexual abusers I've known. So on that regard losing the prison system I don't see it as having any impact really. But I do actually like knowing if some of the people who threatened my life were about to attack me, I would know who to call and they would be taken away for a while and I could get somewhere safe.

I'm trying to understand what the alternative would really look like. It's a great topic and we certainly need something different than what we have. I would love the US to go this direction: Netherlands down to half it's prisons
posted by xarnop at 5:14 AM on February 12 [9 favorites]

However I feel like there are some people who are not safe for those around them, and are not going to be ok. Like, how many lives can they take before we would consider as humanely possible keeping them out of society? This is a tiny minute fraction of who is prison, but we will still have to deal with it.

Some countries have a designation of "dangerous offender". Paul Bernardo, who is a clinical psychopath, is one. He will never be released.

Even the non-racist "justification" for modern penitentiaries is itself based on faulty thinking: 19th century reformers believed that locking people up would inspire them to be penitent (in the religious sense) and thus be rehabilitated. They thought solitary confinement would be especially effective; they arranged for most prisoners to be solitary.

We know today that imprisonment does nothing to help someone change their life and solitary confinement is itself a form of psychological torture. There is absolutely no reason to lock up anyone except dangerous offenders.
posted by jb at 1:27 PM on February 12 [2 favorites]

Thread about prison abolition that showed up in my twitter today.
A common (& understandable) question: "what's the alternative to prison? What will replace it?"

Making a thread because I’m tired of answering individually. The short answer: there isn't ONE alternative, and the question fundamentally misunderstands what abolition proposes. 1/

I'm not particularly well-versed in prison abolition, but for my part, I think it's useful to understand prison abolition as a goal that nobody thinks will happen all at once. While it's understandable and potentially useful to ask what prison abolition means for a certain group of violent offenders, it's not the first thing that will be addressed by an abolitionist program, and it's not necessary to decide now what will be the appropriate approach when it does become necessary to address that population as the next logical step. And like the twitter thread I linked says, there's likely no single approach that will be appropriate even for that limited problem area.

Assuming we, as a society, begin implementing an abolitionist program and drawing down our prison population, I think two things will happen that affect the answer. The first is that we will learn by doing, and the results of that process will inform our thinking and next steps. The answer for "what about violent offenders" may be something no one has thought of yet.

The second is that prison abolition is a reform not just of our criminal justice system, but also our society; which produces both that justice system and the crime that it attempts to answer. For example, I think that anti-povery measures generally are an incredibly important tool for prison abolition. What this means is that there is no guarantee that the problem of violent offenders as it exists now will have the same parameter space after reforms have been ongoing for some time. We don't yet know what the problem to be solved is, not really.

So for me, prison abolition can be understood as an aspiration and a process. It's asking for what we want while understanding that it will take some time to get there, if we ever do. But if we don't ask for it, we'll never get there.

So what does the alternative for violent offenders look like? I don't know. Nobody really does. People have some ideas, and there's conversations to be had there, but it's not important and not possible to work out all the details from our current position. I don't need to know the shape of the final result to support the goal of prison abolition without reservation. If we get that far and fail, find that it is necessary to maintain prisons for some small population, we'll still have achieved great things and be living in a much better world.
posted by vibratory manner of working at 8:11 AM on February 14 [2 favorites]

Yeah, I tend to think of abolition as a moving of the Overton window... No one should be imprisoned. So let's talk about alternatives for the most extreme, and just let the rest go because it's not worth it to waste our time arguing over how three strike marijuana convictions should continue to be punished.

Consider also that ACTUALLY extremely violent dangerous offenders are probably best handled as severe mental health problems...
posted by kaibutsu at 8:45 AM on February 14

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