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Harvard Law Review's Call for Prison Abolition Debate

Updated: May 6, 2019

In the most recent issue of Harvard Law Review, the editors chose to explore the themes of “police abolition” and “ending prisons”, featuring four articles and a book review that, among other critiques, rebrand the U.S. policing and prison systems in the United States as inheritors of slave-trade/Jim Crow traditions and technologies.

As the Introduction to the issue states:

“This edition of Developments in the Law seeks to bring to the lawyers’ table what Purnell points out is so often missing from legal journals and education: a sustained discussion of what it means, in the words of Professor Angela Davis, to “explor[e] new terrains of justice, where the prison no longer serves as our major anchor.”

“… And yet, though bold and sweeping in their ambition, “[p]rison abolitionists aren’t naïve dreamers. They’re organizing for concrete reforms, animated by a radical critique of state violence.”

I have summarized for you here Professor Dylan Rodriguez’s 38-page article, Abolition as Praxis of Human Being: A Foreword, that laboriously describes, justifies, and contextualizes the concept of abolition of the carceral systems in the U.S. as we know them. Professor Rodriguez is Professor of the Department of Ethnic Studies at UC Riverside.

Linking Contemporary Reform Movements with Abolitionist History

In the first section of the article, Prof. Rodriguez, attempts to link the recent radical movements against American carceral punishment to the historical Abolitionist movement, i.e. the “Black radical genealogy of revolt and transformative insurgency against racial chattel enslavement and the transatlantic trafficking of captive Africans.”

This characterization of modern movements including Critical Resistance, Black Youth Project 100, We Charge Genocide, Idle No More, and #NoDAPL and the Standing Rock Sioux, hinges on the premise that “the very logics of the overlapping criminal justice and policing regimes systemically perpetuate racial, sexual, gender, colonial, and class violence through carceral power.”

Thus, the goals of these groups are characterized by Prof. Rodriguez as goals of abolishing these policing and carceral systems as we know them in order to ensure the “[s]ecurity and freedom, for peoples subjected to the normalized state- and culturally condoned violence of (global) U.S. nation-building.”

Prof. Rodriguez attempts to reinvigorate this historical movement (which include the anti-Jim-Crow Civil Rights movements) as a present practice, declaring that “abolition is not merely a practice of negation — a collective attempt to eliminate

institutionalized dominance over targeted peoples and populations — but also a radically imaginative, generative, and socially productive communal (and community-building) practice.”

How Do You Justify Linking Contemporary Reform Movements with Abolitionist History?

The justification for the linking the historical abolitionist movement that worked for freedom from slavery and later from social and legal discrimination with the movements against modern policing and carceral systems is, according to Prof. Rodriguez, that “the most concrete, everyday historical technologies of slave-state dominance — including but not limited to the slave ship, coffle, auction block, white slave patrol, lash, and slave-hunting animals — are reflected in post-emancipation (and present tense) logics of policing, criminalization, and incarceration.”

More than the sharing “technologies of slave-state dominance”, Prof. Rodriguez posits that the modern and historical carceral regimes also share the same purpose/effect:

“abolition is an unfinished project precisely because the slave relation has never been abolished and instead has been constantly reanimated through changing regimes of carceral domestic war."

"...Within this abolitionist genealogy, “incarceration” constitutes — and is constituted by — the complex interaction of gendered racist relations of chattel and colonial power in their long, overlapping entwinements and divergences.”

Redefining Incarceration

Prof. Rodriguez develops his argument by describing the racial demographics of the U.S. carceral system and then redefining its operation against this racial backdrop:

“[I]n the last century, the rates of only a handful of nation-states have exceeded or been otherwise statistically comparable to U.S. rates of criminal justice incarceration (which peaked at 1000 per 100,000 people in 2008), among them apartheid South Africa, the Gulag-era Soviet Union, and the Russian Federation during the immediate post–Soviet Union years. Criminologist Marc Mauer, writing in a 1994 report for The Sentencing Project, notes that “[b]lack males in the U.S. are incarcerated at more than four times the rate of black males in [apartheid] South Africa — 22 per 100,000 versus 851 per 100,000…”

“The Sentencing Project has recently summarized the vast asymmetries in the lifetime likelihood of imprisonment for U.S. residents born in 2001: 1 out of 17 for white men, 1 out of 6 for Latino men, and 1 out of 3 for Black men; 1 out of 111 for white women, 1 out of 45 for Latina women, and 1 out of 18 for Black women. Hispanics are incarcerated under state jurisdiction at a rate 170% higher than whites….”

Against this racially-charged backdrop, Prof. Rodriguez redefines the carceral system as “a logic and method of dominance:”

“There is an increasingly vast field of scholarship and advocacy addressing the significant collateral consequences of incarceration, including the damage and trauma inflicted on children, systemic (as well as informal, culturally sanctioned) impediments to post release access to housing and employment, and the inability to participate in civil society or electoral politics on the same terms as other citizens. The latter body of work suggests that “incarceration” is not a self-contained or historically isolated practice of legitimated state violence. That is, incarceration as a logic and method of dominance is not reducible to the particular institutional form of jails, prisons, detention centers, and other such brick-and-mortar incarcerating facilities (or their corresponding juridical protocols).”

Moreover, Prof. Rodriguez emphasizes that the institution of incarceration must be described to include the familial and generational effects: “The consequences of this marshaling of police power, criminal justice policy, and racialized national culture are transgenerational and have fundamentally deformed the capacities of targeted communities and people to reproduce within a sociality that is constituted by the logics and protocols of gendered racist state violence.”

Finally, Prof. Rodriguez concludes his redefinition of the carceral system by referring to it as the “juridical, spatial, and sociopolitical processes through which criminalized or otherwise (ontologically and socioculturally) pathologized populations are rendered collective targets of state-sanctioned social liquidation and political neutralization.”

Rejection of the Mass Incarceration Narrative

Prof. Rodriguez strongly rejects the contemporary reform movements that focus on addressing the carceral system as a problem of “mass incarceration.” His contention is that framing the struggle as a mass incarceration problem that needs to be reformed not only “obscures rather than clarifies the origins, casualties, and structuring logics of carceral power,” but also “rel[ies] on a reinvigoration, refinement, and expansion of policing and criminal prosecution.”

Prof. Rodriguez argues that the “mass incarceration” narrative is part of “a hegemonic effort to renarrate generations of police terror and carceral displacement as unintended, atrocious consequences of a tragically “misled” War on Drugs culminating in 2.3 million people held captive by the state.” Moreover, he argues that “if this domestic war is reframed as a discrete, mistaken excess owing to criminological error, electoral opportunism, and moral failure — “mass incarceration” — it can be redressed and reformed within the existing systems of law, policy, and liberal justice.”

Instead, he argues that “carceral domestic war cannot be “reformed”; it can only be eliminated (abolished); to do otherwise is to sustain it under revised executive/

policy directives, policing tactics, jurisprudential approaches, and cultural discourses.”

By way of example, Prof. Rodriguez considers a mainstream prison reform initiative (supported by the Obama administration) that resulted in the reform manual, Federal Prosecution for the 21st Century.

First, Prof. Rodriguez describes the manual as “articulat[ing] a rigorous, dynamically planned and executed regime of state strategies for addressing the overlapping economic, geographic, and political crises cultivated by cresting racial colonial liberation struggles: deindustrialization and its racially structured displacements and abandonments of working people; the rise and decline of neoliberal/global capitalism; complex and always-resurgent white nationalism (including liberal variations); and the absolute persistence of collective, creative human praxis that counters the hegemony and armed dominance of White Life.” He then declares that the reform would result in nothing more than a new, more subtle and sophisticated “technology” for preserving the dominance of the dominant culture:

“The reform of mass incarceration, in this instance, actually endorses an expansion of carceral policing logics beyond the discrete institutional spatial sites of prisons, jails, detention centers, and juvenile facilities. This expanded regime of control, containment, and policing of particular profiled beings (bodies, spaces, communities) is to be implemented through weaponized, high-efficiency state surveillance and the ramping up of ostensibly extracarceral state violence, resonating histories of border rangers, frontier war, slave patrols, and punitive industrial- and agricultural-labor discipline. Thus, while the reform of mass incarceration declares an anticarceral intention, its reconstructionist vision proliferates an invigorated logic and refurbished technology of carcerality in the reproduction of gendered racist state violence.”

As proof of this concept of reform as perpetuation, Prof. Rodriguez paints the current form of the U.S. prison system as the outcome of the 1970’s reforms:

“As numerous abolitionist scholars have noted, the rise of the contemporary prison industrial complex is a direct outcome of the liberal-progressive “prison reform” successes of the 1970s.86 The political convergence between liberals, progressives, and “law-and-order” conservatives/reactionaries, located within the accelerating political and geographical displacements of globalization, generated a host of

material transformations and institutional shifts that reorganized the scale and reach of the state’s carceral capacities — prisons and jails — in direct, intensified relation to hegemonic political, cultural, and economic institutions, including public policy and legislative bodies, electoral and lobbying apparatuses, the medical and architectural/ construction industries, corporate news media, and various other institutional forms.”

“Thus, the reform of the prison resulted in its expansion and bureaucratic multiplication: for example, the reform of prison overcrowding came to involve an astronomical growth in new prison construction (rather than decarceration and release), the reformist outrage against preventable deaths and severe physiological suffering from (communicable, congenital, and mental) illnesses yielded the piecemeal incorporation of medical facilities and staff into prison administration (as opposed to addressing the fact that massive incarceration inherently creates and circulates sickness), and reformist recognition of carceral state violence against emotionally disordered, mentally ill, and disabled captives led to the creation of new prisons and pharmaceutical regimens for the “criminally insane,” and so on.”

Instead of engaging in reform movements that ignore the historical roots of the current justice system, Prof. Rodriguez offers alternative movements, and highlights the Chicago-based grassroots group We Charge Genocide (WCG), which engages in “produc[ing] a living archive of abolitionist pedagogy, analysis, and scholarly activist methodology.” He lauds WCG for providing “unprecedented testimony to the United Nations (UN) Committee Against Torture in Geneva” in 2014 and for helping to produce the “2014 UN report Police Violence Against Chicago’s Youth of Color.”

Prof. Rodriguez further celebrates WCG’s critical scholarly treatment and rejection of the concept of “police brutality.” He endorses WCG’s characterizing the phenomenon not as anomalous aberrations, but as a natural part of the historical system of policing:

“[E]pisodic narrations of police brutality [ ] fail to conceptualize gratuitous, sometimes-spectacular performances of gendered racist policing as part of a general historical continuity of power relations that structure U.S. state institutions and the social-economic formations within which they perform their sovereignty.”

This all leads to Prof. Rodriguez’s conclusion as to the policing systems: “perhaps the regime of gendered racist police violence ought not to be incessantly reformed, but rather extinguished.”

In the final section of his paper, Prof. Rodriguez greatly expands the scope of his thesis. To begin, he frames recent (post 1960s) socio-political reform movements as efforts to “plan, manage, and reimagine liberal (white) futurity against the duress of the other beings’ insurgencies. In this way, the juridical abolition of official apartheid and the formal elimination of selective forms of gendered racial colonialism are maneuvers of sustainability.” From this premise, he posits that today’s mainstream reform movements invite would-be supporters “to fantasize a “people-of-color” future within the reconstructed white-supremacist ascendancy even as material conditions yield palimpsests of degradation and humiliation.”

Prof. Rodriguez then suggests that instead of complicity in this “fraud of liberal futurity,” an abolitionist practitioner should imagine a new form of social life that “does not rely on carcerality and its constitutive, oppressive forms of state and cultural violence.” Instead practitioners should “critically study, teach, theorize, and narrate such historical moments [(previous Civil Rights triumphs)] as revelations of radical possibility that obliterate the cultural tendency to reify (which is to say, presume permanency and ahistorical existence of) existing systems of state violence, geographic displacement and capture, economic evisceration, and institutionalized dehumanization. Such a creative destruction, and creativity of thought-in-destruction, is a primary pedagogical purpose of abolitionist praxis.”

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