In a very long PrawfsBlawg post, oddly with comments closed considering that he seems to invite them, Alabama lawprof Paul Horwitz raises a bevy of interesting questions about the “Abolish Prison” movement and how it’s being treated by the nice folks at the Harvard Law Review.
What raised his eyebrows was two things, that the issue took up a lot of real estate in not one, but two, HLRs published very close together, and that the only perspective offered was positive. In other words, it was all movement and activist stuff without any critical analysis that wasn’t promoting it as the solution to what ails us.
One might respond that there is no need to do so if those criticisms have been well aired elsewhere. I doubt that holds up as a scholarly justification: that might be true of one or two isolated articles, but when a journal devotes an entire issue and a major separate piece to what is largely a single perspective, that response becomes quite weak. The more it says from a single perspective, surely the more obvious it becomes that there are unanswered questions that ought to be addressed. Nor is it a good justification to say that the journal is uninterested in such perspectives because there is nothing to be said on the other side. At least on this issue, the Foreword itself notes several tensions in the movement, and both the Foreword and the Developments introduction note the difficulty in defining the movement at all. Obviously there are things to be said on the other side.
The foreword referred to above, which goes on for a whopping 120 pages, is to HLR’s Supreme Court issue, by Penn prawf Dorothy Roberts, it’s entitled Abolition Constitutionalism.
Its take-off point is “prison abolition.” In Professor Roberts’s words and those of the writers she quotes, “Many individuals have…concluded that the answer to persistent injustice in criminal law enforcement is not reform; it is prison abolition.” The movement wants to “‘make “abolition” a practical theory of change.’” Roberts’s Foreword seeks to “make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists…[and] to examine prison abolitionist theory and organizing as it relates to the U.S. Constitution in particular.” The ultimate goal is to “construct a new abolition constitutionalism on the path to building a society without prisons.”
What is “prison abolition,” other than a cool phrase that is short and simple enough to capture the passions of activists?
Early on, Roberts writes, in a passage worth quoting at length, “It is hard to pin down what prison abolition means. Activists engaged in the movement have resisted ‘closed definitions of prison abolitionism’ and have instead suggested a variety of terms to capture what prison abolitionists think and do–abolition is ‘a form of consciousness,’ ‘a theory of change,’ ‘a long-term political vision,’ and ‘a spiritual journey.’
Not particularly helpful? How does this one work for you?
Professor Dylan Rodriquez, a founding member of Critical Resistance, lyrically defines abolition as ‘a practice, an analytical method, a present-tense visioning, an infrastructure in the making, a creative project, a performance, a counterwar, an ideological struggle, a pedagogy and curriculum, an alleged impossibility that is furtively present.’”
Perhaps these prawfs are far smarter than I am, as their words strike me as utterly meaningless. I’ve got no clue what they’re talking about, But what I do know is that they’ve not only caught sufficient interest at HLR to dedicate two publications to the issue of prison abolition, but they’ve done so with only promotional articles, and had no room left over to offer critical thought challenging it as “furtively present.”
Given the many pages the HLR has devoted to prison abolitionism in the past year, the journal seems to fall short on this point. Nor do I think it’s sufficient to say that no definition is possible because prison abolitionism, as at least some of its proponents define it, is everything from a “spiritual journey” to an “ideological struggle.” Scholars who deal with spiritual or ideological movements begin by defining those movements.
There appears to be a “short answer” to all this, that the Constitution is racist, the legal system is racist, prisons are racist, and that end to systemic racism in criminal law compels us to rid society of prisons.
A second and related tension she discusses, also usefully, is that between prison abolition and prison reform. Prison abolitionism, on her account, “is defined in contradistinction to reform: reforming prisons is diametrically opposed to abolishing them. Efforts to improve the fairness of carceral systems and to increase their efficiency or legitimacy only strengthen those systems and divert attention from eradicating them.” This raises an obvious question: “How can abolitionists take incremental steps toward dismantling prisons without falling into reformist traps?” Abolitionists have “resolved this quandary,” she writes, by adopting “the concept of ‘non-reformist reforms–those measures that reduce the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.’”
I apologize for the pain these quotes have likely caused, both in their tedious length and their brutal rhetoric, but if HLR is going to dedicate its existence to the cause of abolishing prisons, then it suggests it’s something that ought to be known before you hear it being chanted by 2Ls and taken for granted by Larry Tribe.
And for those who note that this seems to coordinate nicely with other calls for eviscerating constitutional cultism, that may not be entirely coincidental.
On the one hand, there is good reason to renounce the Constitution because constitutional law has been critical to upholding the interests of the racial capitalist regime while advancing legal theories that justify its inhumanity. On the other hand, there is utility in demanding that the Reconstruction Constitution live up to the liberation ideals fought for by abolitionists, revolutionaries, and generations of ordinary black people.”
As Harvard Law Review is a leading indicator of what’s coming down the pike in the Legal Academy, Paul raises a bunch of red flags in the dulcet tones of academic moderation. Since I’m unconstrained by such niceties, this is irrational meaningless gibberish directed at tearing down the Constitution in order to burn down the system and reinvent it to conform to some incomprehensible fantasy where racism is eliminated by giving hugs and thorazine to guys who beat you over the head for your wallet. Now you know.