By Bernard E. Harcourt
What does it mean for an institution like the prison, founded on the very notion of reforming the delinquent, to constantly be defective, deficient, or deviant itself, and constantly in need of reform? How should we think about an institution like the prison that exists in a constant state of needing to be reformed?
Angela Davis opens her book Are Prisons Obsolete? with this puzzle. Davis writes:
It is ironic that the prison itself was a product of concerted efforts by reformers to create a better system of punishment. If the words “prison reform” so easily slip from our lips, it is because “prison” and “reform” have been inextricably linked since the beginning of the use of imprisonment as the main means of punishing those who violate social norms.[i]
Davis points the reader—in her epigraph—to a passage from Michel Foucault’s Discipline and Punish, where he writes:
One should recall that the movement for reforming the prisons, for controlling their functioning is not a recent phenomenon. It does not even seem to have originated in a recognition of failure. Prison “reform” is virtually contemporary with the prison itself: it constitutes, as it were, its programme.[ii]
In Discipline and Punish, Foucault goes on to write:
From the outset, the prison was caught up in a series of accompanying mechanisms, whose purpose was apparently to correct it, but which seem to form part of its very functioning, so closely have they been bound up with its existence throughout its long history…. There were inquiries… There were societies for supervising the functioning of the prisons and for suggesting improvements… There were programmes drawn up to improve the functioning of the machine-prison… [and] publications that sprang more or less directly from the prison and were drawn up either by philanthropists… or a little later by “specialists”… or, again, by former prisoners…
The prison should not be seen as an inert institution, shaken at intervals by reform movements. The “theory of the prison” was its constant set of operational instructions rather than its incidental criticism—one of its conditions of functioning.[iii]
An institution of reform in a constant state of reform because it never seems to accomplish its objective: How long do we continue to play that game?
And how long do we continue to pretend that regimes of punishment are centrally related to crime? Angela Davis starts here as well: breaking the link between crime and punishment—decentering the idea that punishment is the consequence of crime.
No, punishment has its own logics and functions. Punishment practices serve other interests. They construct our social and racial order.
Davis writes about the need to “do the ideological work of pulling apart the conceptual link between crime and punishment.” (112) If we did so, she notes, “we would recognize that ‘punishment’ does not follow from ‘crime’ in the neat and logical sequence offered by discourses that insist on the justice of imprisonment, but rather punishment—primarily through imprisonment (and sometimes death)—is linked to the agendas of politicians, the profit drive of corporations, and media representations of crime.” (112)
The effort to disentangle punishment from crime is at the very foundation of rethinking punishment theory and practices. It is the first step necessary to understand regimes of punishment. Here too, Foucault agrees, tracing this move to the Frankfurt School, approvingly. As Foucault wrote:
Rusche and Kirchheimer’s great work, Punishment and Social Structures, provides a number of essential reference points. We must first rid ourselves of the illusion that penality is above all (if not exclusively) a means of reducing crime…. We must situate them in their field of operation, in which the punishment of crime is not the sole element… (24)
“Their field of operation”: In the United States, race is at the heart of that field of operation. As Davis notes, “Imprisonment is associated with the racialization of those most likely to be punished.” (112)
This is reflected well in the current prison abolitionist movement. In her brilliant essay, Abolition Constitutionalism, Dorothy Roberts articulates the three central tenets of prison abolitionist philosophy: first, that our current punitive society characterized by racialized mass incarceration is the legacy of slavery in this country; second, that it serves to maintain a racial, gender, and class hierarchy; and third, that there are better ways to address social problems than to incarcerate.[iv]
The first and second tenets reflect the central constitutive role of race in punishment in America. When will we come to terms with the gulf that separates crime and punishment? How many times will we have to learn that lesson?
We are becoming familiar today, too familiar perhaps, with the debate between reform versus abolition—especially with the recurring arguments.
Reformers reproach abolitionists for being too idealistic and out of touch with reality. Reformers advocate instead evidence-based policy changes that will return legitimacy to these penal institutions and set them back on track. Some abolitionists are prepared to embrace incremental reforms so long as they promote an abolitionist vision; others respond that reforms will simply reproduce racial injustice, and argue instead for the complete abolition of these institutions and practices.
In the media and public debate, we are constantly confronted with these arguments and the choice between reform or abolition.
But it’s a false dilemma. It is a trap.
Neither piecemeal reforms, nor abolition alone would truly advance the cause of racial justice. Neither one, standing alone, properly addresses the legacy of systemic racism in this country. Instead, we need to pursue, simultaneously, the abolition of these punitive institutions and the invention of new institutions guided by a different paradigm than punishment.
That is the lesson of Angela Davis’s writings and the work of so many prison abolitionists. As Davis notes on the very first page of her book, these ideas “reflect various forms of collaboration over the years with activists, scholars, prisoners, and cultural workers…” (7) Yes, this is the work of brilliant critical thinkers like Ruth Wilson Gilmore, Dorothy Roberts, Bryan Stevenson, Loïc Wacquant, among others, and now Amna Akbar, Alexis Hoag, Allegra McLeod, Derecka Purnell, Jocelyn Simonson, and many others, who have demonstrated well how these punitive institutions reproduce and how, today, we live in the continuing legacy of slavery.
W.E.B. Du Bois coined the term “abolition democracy” to explain this in the context of slavery; Davis demonstrated the contemporary relevance of Du Bois’s idea of abolition democracy in the prison abolition context. As with slavery, simply abolishing or reforming the prison, she explained, without more, will only result in new institutions of systemic racism. Prison abolition must be accompanied, instead, with “the creation of an array of social institutions that would begin to solve the social problems that set people on the track to prison.”[v]
Davis sets those out brilliantly in her book Are Prisons Obsolete? She demonstrates that they must not replicate the prison with prison-like practices and institutions, but instead replace the prison:
We would not be looking for prisonlike substitutes for the prison, such as house arrest safeguarded by electronic surveillance bracelets. Rather, positing decarceration as our overarching strategy, we would try to envision a continuum of alternatives to imprisonment—demilitarization of schools, revitalization of education at all levels, a health system that provides free physical and mental care to all, and a justice system based on reparation and reconciliation rather than retribution and vengeance. (107)
These alternatives include “job and living wage programs, alternatives to the disestablished welfare program, community-based recreation, and many more.” (111)
The fact is, there will always be “new” forms of racial oppression unless we disassemble our punitive society and construct new institutions that ensure equal citizenship based on public health, education, and welfare. Reforms are inadequate because they serve only, even when successful, to entrench institutions premised on a punitive logic. At the same time, abolition alone is insufficient because it cedes the space to the reproduction of racial injustice. Instead, abolition must be accompanied by democratic institutions that seek to put everyone, especially those who have suffered the most, on an equal footing. That is the full ambition for a democratic vision that carries out the aspiration to end racial injustice. Hence, abolition democracy.
It is these ideas we will explore in this seminar.
Welcome to Abolition Democracy 9/13!
To lay the groundwork and link back to Davis and Foucault, let me close with a moving passage by W.E.B. Du Bois, that Angela Davis discusses in her letter from Marin County Jail in 1971. Davis writes:
In 1951, W.E.B. Du Bois, as Chairman of the Peace Information Center, was indicted by the federal government for “failure to register as an agent of a foreign principal”. In assessing this ordeal, which occurred in the ninth decade of his life, he turned his attention to the inhabitants of the nation’s jails and prisons:
What turns me cold in all this experience is the certainty that thousands of innocent victims are in jail today because they had neither money nor friends to help them. The eyes of the world were on our trial despite the desperate efforts of press and radio to suppress the facts and cloud the real issues; the courage and money of friends and of strangers who dared stand for a principle freed me; but God only knows how many who were as innocent as I and my colleagues are today in hell. They daily stagger out of prison doors embittered, vengeful, hopeless, ruined. And of this army of the wronged, the proportion of Negroes is frightful. We protect and defend sensational cases where Negroes are involved. But the great mass of arrested or accused black folk have no defense. There is desperate need of nationwide organizations to oppose this national racket of railroading to jails and chain gangs the poor, friendless and black.[vi]
[i] Angela Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003), 40.
[ii] Davis, Are Prisons Obsolete?, 40 quoting Michel Foucault, Discipline and Punish (New York: Vintage, 1979), 234.
[iii] Foucault, Discipline and Punish, 234-235.
[iv] Dorothy Roberts, “Abolition Constitutionalism,” Harvard Law Review 133, no. 1 (2019): 3-122, at page 8, available at https://harvardlawreview.org/wp-content/uploads/2019/11/1-122_Online.pdf
[v] Angela Davis, Abolition Democracy (New York: Seven Stories Press, 2005), 92.
[vi] Angela Davis, “Political Prisoners, Prisons, and Black Liberation,” (1971)