By Bernard E. Harcourt
After a brief period of Reconstruction following the Civil War (1866-1877), the conservative white supremacist forces in this country began to rebuild, brick-by-brick, a social system of racial hierarchy and oppression comparable to American slavery during the antebellum period.
The main device—the very mortar that would hold together that new system of racial oppression—was the penal law and its strict enforcement. New criminal codes, resurrected from the antebellum era, placed onerous duties and harsh punishments on freed Black women and men. These infamous “Black Codes” criminalized ordinary conduct, under pretextual vagrancy and public disorder rationales, and meted out even harsher penalties with dire consequences for the civil and political rights of those who got trapped in the new web of racial injustice.
The penal law, law enforcement—in sum, law-and-order became the main tool to return the country to a system of racial apartheid, first de jure during the Jim Crow era and now de facto with racialized mass policing and incarceration. The penal law was deployed as a political strategy and key device to entrench racial hierarchy in this country—in effect, to return the country to an antebellum caste society. The harsher punishment of African-Americans ensured that they were stripped of their homes and taken out of the labor market, that they forfeited their property, could not work, and became once again free labor. The prison sentences stoked a new system of convict leasing that re-enslaved Black men and women. The criminal records served to disenfranchise swaths of freed African-Americans from the vote and strip them of any civil or political rights. The sprawling Black prisons were turned into plantations, literally, such as in Louisiana with the Angola plantation prison known colloquially as “The Farm.” Lynching mobs, in tandem with law enforcement, brought forms of terror that sent wave upon wave of Black men, women, and children fleeing their homes, abandoning their property, to find refuge in only slightly less threatening jurisdictions. The violence against Black women and men during the Reconstruction era, especially the violence of the Ku Klux Klan, indelibly parted society. The penal law and its enforcement were the lynchpin to dispossess freed Black women and men of their property and of any gains they had achieved with Emancipation.
We can trace a direct lineage from those penal practices to today’s policing and punishing. In fact, sometimes, we can even trace the legal precedent directly back to the law of slavery. From street stop-and-frisks and “broken-windows” policing, to juvenile supervision and detention, to charging decisions and cash bail, to prison time and parole revocation and felon disenfranchisement—at every step of the way, the law is enforced in a disproportionately harsher way against persons of color today. Criminal law enforcement has created a caste society in America. Our jails and prisons are filled with poor persons of color. Our courtrooms are color coded. As the Sentencing Project reports to the United Nations: “The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.” You walk into misdemeanor arraignments in most counties in this country only to find a procession of young Black men in jumpsuits, jangling in chains, secured to each other at the wrists and ankles—a sight that resembles more the unloading of a slave ship after the Middle Passage than anything that could possibly be called justice or even law. The experience is utterly horrifying—but eerily reminiscent—to anyone who has even one iota of a sense of justice.
Still today—with police killings of unarmed Black and Latinx women and men, with blatant racial profiling and grossly disproportionate policing and enforcement in African-American communities (85% of stops-and-frisks in New York City were of persons of color), with a capital punishment system in this country that is multiple times more likely to sentence someone to death based on skin color—we live in a time still today in which the practices and institutions of the penal law serve as the glue, the mortar that keeps together our system of racial hierarchy.
W.E.B. Du Bois’s words ring today as true as they did in 1935. As Du Bois wrote, in his landmark study, Black Reconstruction: “The whole criminal system came to be used as a method of keeping Negroes at work and intimidating them. Consequently, there began to be a demand for jails and penitentiaries beyond the natural demand due to the rise of crime.”
Yes, Du Bois identified the continuity from chattel slavery to the criminal justice system, already in the 1930s, even before we began to cage millions of African-Americans in jails and prisons. Du Bois revealed to us the deep continuities from the logics of slavery to the practice of racial hierarchy postbellum. Du Bois analyzed convict leasing and showed how it promoted the logics of slavery and extractive capitalism. “The horrid system of convict leasing,” Du Bois wrote, “gave to the state a profit in crime, not to mention the vast profits which came to the private contractors.”
Angela Davis developed this brilliantly in the 1970s. Davis noted, in fact, in her letter from Marin County Jail in May 1971, an increasing awareness of this among Black and Latino prisoners themselves. “Prisoners — especially blacks, Chicanos and Puerto Ricans — are increasingly advancing the proposition that they are political prisoners. They contend that they are political prisoners in the sense that they are largely the victims of an oppressive politico-economic order, swiftly becoming conscious of the causes underlying their victimization.”
The collective Critical Resistance, and Rachel Herzing and the other founders and members, identified this early on as well. Ruth Wilson Gilmore, Mariame Kaba, Dorothy Roberts, Amna Akbar, Allegra McLeod, and other brilliant critical thinkers have been brilliantly analyzing, documenting, exposing this history tirelessly.
This evening, with the launch of this seminar, we follow in their footsteps, we read their work, we try to trace with them, to understand, to highlight the genealogy of our racial caste society, and to analyze how it ties back, precisely, to the unfinished struggle for the abolition of slavery.
In this sense, we return to W.E.B. Du Bois’s brilliant idea of “abolition democracy,” which he coined in that landmark study, Black Reconstruction in America (1935). As Angela Davis explains in her own collection of that name:
“DuBois argued that the abolition of slavery was accomplished only in the negative sense. In order to achieve the comprehensive abolition of slavery—after the institution was rendered illegal and black people were released from their chains—new institutions should have been created to incorporate black people into the social order. […] Slavery could not be truly abolished until people were provided with the economic means for their subsistence. They also needed access to educational institutions and needed to claim voting and other political rights, a process that had begun, but remained incomplete during the short period of radical reconstruction that ended in 1877. DuBois thus argued that a host of democratic institutions are needed to dully achieve abolition—thus abolition democracy.”
Our abolitionist efforts today—whether they target the police, prisons, capital punishment, or more broadly our punitive society—have to be understood through this perspective: the dark legacy and long history of the still uncompleted abolition of slavery.
Abolition today is a constructive project. As Dorothy Roberts writes in Abolition Constitutionalism, “We should understand abolition not as the ‘elimination of anything but . . . as the founding of a new society.’” And in the same way, “The relationship between prison abolition and the Constitution, then, should be seen less as the condemnation of our existing abolition constitutionalism and more as the genesis of a new one.”
Or, as Stefano Harney and Fred Moten write in The Undercommons, the ambition is “Not so much the abolition of prisons, but the abolition of a society that could have prisons, that could have slavery, that could have the wage, and therefore not abolition as the elimination of anything but abolition as the founding of a new society.”
Our title, “Abolition 13/13” for short, indexes the fuller title of this seminar series: “Abolition Democracy 13/13”
It is not surprising, then—given the legacy of slavery and ongoing white supremacy in this country—that we are still struggling today against such violent forms of racial injustice in the United States.
It is surely not the case that earlier generations did not sufficiently call out racial injustice.
No, the condemnation and the corresponding awareness have always and persistently accompanied the waves and recurring iterations of racial injustice. One need only reread the abolitionist David Walker’s Appeal to the Coloured Citizens of the World, published in 1829, to appreciate how condemnatory our predecessors were. Walker demonstrated, remonstrated, and declared in no uncertain terms that:
we Coloured People of these United States, are, the most wretched, degraded and abject set of beings that over lived since the world began, down to the present day, and, that, the white Christians of America, who hold us in slavery, (or, more properly speaking, pretenders to Christianity,) treat us more cruel and barbarous than any Heathen nation did any people whom it had subjected, or reduced to the same condition, that the Americans (who are, notwithstanding, looking for the Millennial day) have us.
In his Appeal, Walker documented the cruelty of American chattel slavery even as against the standards of Roman law, ancient Greek practice, or even the treatment of Israelites in Egypt. Walker detailed how American slaves from Africa were not considered part of the human family, had their children ripped away from them to be sold at auction, were murdered en masse and thrown into the sea during their transportation, and then butchered on American soil—all to maintain the political economy of plantations and reap a profit from their “blood and tears”: “they (Americans) have, and do continue to punish us for nothing else, but for enriching them and their country.” All this was known and decried by just people before us. “All I ask, is” Walker wrote, that “the world may see that we, the Blacks or Coloured People, are treated more cruel by the white Christians of America, than devils themselves ever treated a set of men, women and children on this earth.”
No, the condemnation has rung loudly throughout American history. Just reread Frederick Douglass’s July 4th oration from 1852. Douglass pierced the pretense of America’s values, showing it to be “false to the past, false to the present, and solemnly bind[ing] herself to be false to the future.” Douglass called out the hypocrisy in the clearest possible terms.
Nothing was left unstated then:
What to the American slave is your Fourth of July? I answer, a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass-fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are to him mere bombast, fraud, deception, impiety, and hypocrisy—a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody, than are the people of these United States, at this very hour.
As Walker had before him, Douglass demonstrated the unparalleled cruelty of American slavery. “Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the every-day practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.”
Or fast-forward to 1963 and to James Baldwin, in “A Talk to Teachers,” where Baldwin describes American society as “a criminal conspiracy” intended to “destroy” African-American children, women, and men. In fact, Baldwin openly declared war against American society. “Precisely at the point when you begin to develop a conscience,” Baldwin wrote, “you must find yourself at war with your society.”
Or the same year, to Martin Luther King in his “Letter from a Birmingham Jail.” When he described, in such painful detail, the everyday experience of racial injustice:
when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness.”
No, nothing has been left unstated.
It has all been said.
And it has all been done.
Prior generations fought and won a Civil War. They marched and protested and birthed a Civil Rights Movement. #BlackLivesMatter has been rising up since 2014.
And yet, here we find ourselves, in 2020, after another round of police killings of George Floyd and Breonna Taylor and Carlos Ingram-Lopez and others, still struggling to realize the ambition of abolition—the ambition, as W.E.B. Du Bois wrote, of “abolition democracy.”
How do we make sense of this legacy and of the present?
How do we act, ourselves, when so many before us have sacrificed so much—including their lives—to get us to a place that continues to be fundamentally unjust?
Yes, that is right.
And let’s also remind ourselves that we are not here to start a conversation.
Instead we are here to engage a conversation that has been going on for decades, or rather for centuries.
We are here to engage a conversation that has been raging in this country since the seventeenth century. One that is raging around us today—in the brilliant writings and militancy of Angela Davis, Dylan Rodríguez, Rachel Herzing, Ruth Wilson Gilmore, Mariame Kaba, Dorothy Roberts, Amna Akbar, Allegra McLeod, and so many more.
Welcome to Abolition Democracy 13/13!
 Bernard E. Harcourt, “Imagery and Adjudication in the Criminal Law: The Relationship between Images of Criminal Defendants and Ideologies of Criminal Law in Southern Antebellum and Modern Appellate Decisions,” 61 Brooklyn Law Review 1165-1246 (1995), at page 1243-1244.
 The Sentencing Project, Report of The Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance Regarding Racial Disparities in the United States Criminal Justice System, April 19, 2018, available at https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.
 Dorothy Roberts, “Abolition Constitutionalism.” Harvard Law Review 133, no. 1 (2019): 3-122, at page 120, available at https://harvardlawreview.org/wp-content/uploads/2019/11/1-122_Online.pdf
Stefano Harney and Fred Moten, The Undercommons: Fugitive Planning & Black Study (Wivenhoe, UK: Minor Compositions, 2013), p. 42.
 David Walker, Appeal, In Four Articles; Together with A Preamble, To The Coloured Citizens Of The World, But In Particular, And Very Expressly, To Those Of The United States Of America, Written In Boston, State Of Massachusetts, September 28, 1829. Third and Last Edition, With Additional Notes, Corrections, etc. Boston: Published by David Walker, 1830. Available to download from https://about.jstor.org/ (accessed August 1, 2020), page 6.
 Angela Y. Davis, Distinguished Professor Emerita, Univ. of Cal., Santa Cruz, Lecture at Southern Illinois University Carbondale (Feb. 13, 2014) (quoted in Dorothy Roberts, “Abolition Constitutionalism.” Harvard Law Review 133, no. 1 (2019): 3-122, at page 3, available at https://harvardlawreview.org/wp-content/uploads/2019/11/1-122_Online.pdf