The Perils of Criminal Justice “Reform” and the Promise of Abolition

To see more stories like this, visit “Smoke and Mirrors: Inside the New ‘Bipartisan Prison Reform’ Agenda.”

In an interview with Democracy Now! in early 2014, Angela Davis reminded us again that there is power in struggle, there is opportunity in the moment, but warned us too of the potential pitfalls of “criminal justice reform.” Given all that has transpired this year, her words are well worth revisiting now as 2014 grinds to a close.

Well, yes. I think that this is a pivotal moment. There are openings. And I think it’s very important to point out that people have been struggling over these issues for years and for decades. This is also a problematic moment. And those of us who identify as prison abolitionists, as opposed to prison reformers, make the point that oftentimes reforms create situations where mass incarceration becomes even more entrenched; and so, therefore, we have to think about what in the long run will produce decarceration, fewer people behind bars, and hopefully, eventually, in the future, the possibility of imagining a landscape without prisons, where other means are used to address issues of harm, where social problems, such as illiteracy and poverty, do not lead vast numbers of people along a trajectory that leads to prison.

Prescient words. 2014 was a year of much Smoke and Mirrors. It was a year filled with Right on Crime and Justice Reinvestment Leadership Summits, Koch brothers funded panels where right-wing criminal justice “reform” was touted as a bipartisan “uniting of left and right,” and a flurry of proposed federal legislation (right-wing in origin but billed as bipartisan) that would purportedly tackle mandatory minimums for drug crimes, decriminalization of marijuana, federal prison recidivism, and the militarization of the police. With “criminal justice reform” now on the national radar, careful examination of the details of these proposals becomes more important than ever. As James Kilgore observes in Prop 47, Immigration Reform and More: The Contradictory Road of “Reforming” Mass Incarceration:

Mass incarceration has landed on the political agenda at both the national and local levels. But sometimes separating real change from rhetoric and contradictory processes, depicted as “much-needed reforms,” poses major challenges. Moreover, at times, liberal observers and certain nonprofits may have an emotional or financial stake in presenting a picture far rosier – or more dismal – than reality.

The complexities of … policy changes remind us that to advance the struggle against mass incarceration further, the growth of a social movement capable of unpacking those complexities and mobilizing people into action remains the key to transformation of the criminal justice system.

Unpacking these complexities requires a look behind the veneer of buzzwords – sentencing reform! decriminalization! evidence-based! cost effective! community safety! – into the devilish details of proposed legislation. It requires too, the demand that the structural racism, classism and hetero-patriarchy at the heart of the mass incarceration machine be centered in all proposals for reform, hitherto ignored in the reformist agenda. Ultimately, it requires an interrogation of the “logic” of reform itself, and an eternal vigilance with regard to the question of whether the proposed reforms actually decrease those under correctional supervision, or instead, widen the net in both expected and unanticipated ways.

Consider the recent calls for “police reform” that have emerged in the wake of Ferguson. The killing of Mike Brown sparked renewed demands for police body camera in cities across the nation, including in Ferguson. In the wake of the non-indictment of Darren Wilson, President Obama proposed a program that would review how local police departments utilize military equipment, create a new commission to study police/community relations, and most immediately, seek $263 million in funding for fifty thousand police body cameras.

The use of body cameras is no panacea. Law enforcement agencies have no uniform policies for the use of body cameras or for collection, storage, and integrity of the recorded data. The few studies conducted on their use have produced mixed results, although it should be noted that the most glowing studies are industry funded by TASER International, the major producer of body cameras. TASER stands to make millions of dollars here, for another technology that is sold to us as protecting the public, but marketed to police as a tool for citizen surveillance. (Anyone who recalls the initial pitch for the arming of police with TASERS will recognize this ruse. It was argued that police would kill fewer citizens by relying on this “less than lethal” technology. Instead, TASERS have been turned into torture devices and lethal weapons unto themselves resulting, on average, in at least one death per week. As for a reduction in police killings by other means? We know all too well how that has worked out.)

Beyond this, the non-indictment of Daniel Pantaleo for the videotaped killing of Eric Garner via a choke-hold that had been banned for more than 20 years, ripped away again hope that the existence of body cam footage would hold police accountable. (In fact, the only indictment in the Garner case was that of Ramsey Orta, the man who videotaped the killing). As Keeanga-Yamahtta Taylor writes in No More Eric Garners:

The announcement from the White House barely had time to make a ripple before the non-indictment of Garner’s killer reduced the plan to a pile of junk. In one stroke, the idea that body cameras would make a decisive difference in whether a police officer would be held responsible for the death of an innocent and unarmed person collapsed — and with it, the centerpiece of Obama’s reforms.

The focus on body cameras assumes that the reason violent and brutal police aren’t punished is because of the absence of visual evidence or proof. But this has nothing to do with it, as the Garner case makes clear. Instead, violence in American policing goes unpunished because the criminalization of black people has legitimized brutality, humiliation, incarceration, and even murder as reasonable practices.

There it is. The proposed police reforms will actually enhance police power by providing them with more economic and technological resources that can easily be turned against the public, all while failing to address the foundational issue of police as the avant-garde of white supremacy. (For future reference, please see Mariame Kaba’s list at Prison Culture: Police “Reforms” You Should Always Oppose)

Consider too recent movement towards “decriminalization,” most famously illustrated by California Proposition 47 but also in evidence elsewhere. Proposition 47: The Safe Neighborhood and Schools Act of 2014 reclassifies several drug and property crimes as misdemeanors and promises to reduce the state prison population. Another one of those right-rooted “bipartisan” efforts, Prop 47 was highly touted before passage with serious questions emerging only later. One major set of concerns is related to the funding that is supposed to support efforts to curb truancy and offer substance abuse and mental health treatment. Dispersal of the majority of funds, however, is the jurisdiction of the Board of State and Community Corrections (BSCC), and it remains uncertain as to whether the funds might instead be allocated for police in schools, surveillance cameras, or expanded jails for privatized mental health “treatment.”

In addition, there are doubts as to the potential overall impact on the state’s incarceration rates given the shell game of Governor Brown’s realignment plan which has shifted inmates from state prisons to county jails and into private prisons. Even in lieu of Prop 47’s new measures, it is highly possible that misdeamants may still end up in jail. Decriminalization is not legalization. As illustrated in Community Corrections: Profiteering, Corruption and Widening the Net, the burden of fines and fees and for-profit companies still leaves the possibility of more extensive correctional control including probation and jail. In Opinion: Prop 47 empties prisons but opens a can of worms, Alexandra Natapoff echoes these concerns:

There is something quietly misleading about our decriminalization conversation. Individuals might think that racking up minor decriminalized offenses will have no impact on their records or futures, even though it very likely will. Policymakers may promote decriminalization as a class equalizer and racially healing reform, even though it can have the opposite effect….

To understand the irony of a reform that seeks to make the system more fair but may actually make it less so, remember that decriminalization does not make conduct legal. It just changes the punishment — typically by eliminating incarceration… It turns out that people are still being punished for decriminalized offenses, often heavily, in ways that slip beneath the public radar. And because such offenses do not trigger the right to counsel, thousands of individuals are getting convicted — along with fines they might not be able to pay — without legal assistance or full information.

People are often surprised to learn that they can still be arrested for a decriminalized offense. Although such offenses are often lauded as “non-arrestable,” the label is misleading. The U.S. Supreme Court says that police can constitutionally arrest for non-arrestable or fine-only offenses, even when state law explicitly tells them not to. In many jurisdictions, police can choose between issuing a summons (a ticket) or making an arrest. To be sure, decriminalization often reduces arrest rates (it has in California), but it doesn’t have to (it hasn’t in Nebraska or in Chicago’s African American neighborhoods).

In fact, there is evidence that decriminalization does tend to magnify the already significant race and class gaps in arrest and incarceration. Blacks remain much more likely than whites to be arrested for “low-level” offenses, and the poor remain most heavily burdened by fines. Ultimately Prop 47 and other reforms that are sold as measures to decrease incarceration, may provide new pathways to prison and the profiteering deeply connected to it. And, solidify too, the race/class/gender gulfs that characterize – and always have – the reality of policing and punishment.

As “criminal justice reform” continues to capture public attention, we must never stop asking the hard questions. And ask early and often, because once these measures are enacted, it may be too late.

It is easy to be suspicious of the explicit right-wing agendas that are thinly veiled appeals to private profiteering, a deregulated corporate free-for-all, a rejection of federal civil rights protections via an extreme states’ rights agenda, and an enhanced police/surveillance state. It is more difficult to uncover the reality of exactly what is included in so called “bipartisan” reform. What is being sold is often Right on Crime boiler-plate cosigned by a handful of neoliberal Democrats and large advocacy organizations/foundations. And claims of decarceration or decriminalization in places like Mississippi or California are either outright misrepresentations or are heavily contingent upon funding decisions over which voters have ceded control.

But as we traverse what Kilgore aptly calls the Contradictory Road of “Reforming” Mass Incarceration, let’s question, too, the legitimacy of well-meaning classically liberal models of “corrections” and “reform.” These models can do their own sort of damage. Early this year right about the time that Angela Davis issued her words of warning – I was reminded of this again at a panel hosted by the Minneapolis League of Women Voters, Interrupting the Prison Pipeline: Partnerships, Prevention, Advocacy, Intervention. The panel included a host of well-connected Minneapolis political, nonprofit and faith-based “leaders.” And despite the claims of “interrupting” in the title, the primary focus was in providing services to those already incarcerated or to ex-offenders in the form of increased employment opportunities via Ban the Box legislation, expanded voting rights for probationers, and more Second Chances.

And of course we are for that. But where was discussion about prevention, alternatives to the criminal legal system, dismantling the school to prison pipeline, and the impetus for the first chances?

Here’s the truth: Minnesota, a couple of anomalies not withstanding, is a Blue state. Minneapolis an even bluer city. The state has one of the lowest incarceration rates in the nation (with fewer people in prison in the entire state than the two largest maximum security prisons in the U.S.. combined), and a Department of Corrections that advertizes its’ “bold set of reforms that created one of the best correctional systems in the nation.” Still, the racial disparities are staggering, with Blacks and American Indians dramatically over-represented, and more than 100,000 on probation/community supervision, a rate, that while declining, is near the top of the nation.

So Minnesota runs a kinder gentler correctional industrial complex, where mostly “nice” white liberals control vast percentages of select populations (read: Black, Latino, Hmong, East African and American Indian) through racial profiling, community supervision/probation, and by offering an array of “re-entry’ services to those released from our prisons. The entire endeavor is funded and blessed by a complex web that includes Hennepin County government services, the local nonprofit industrial complex, including an array of powerful statewide foundations, “socially responsible” corporations, interfaith coalitions, and elite research think tanks of the University of Minnesota.

It is an obvious improvement over mass incarceration or raw “Right on Crime” profiteering, but it is still a nearly impenetrable economic web that creates and sustains a huge employment sector. These interests insure that the system is always needed, and no issue is ever “solved”, that any grassroots groups that wants funding must jettison the more radical aspects of their agenda, and that innovative community-centered models, such as restorative justice, are immediately co-opted and institutionalized.

Ultimately, we must question this too, and in fact, question the entire enterprise known as “criminal justice.” If the “best” practices still produce an excessive and unnecessary vortex of raced, classed, gendered social control, then alternatives to this must be envisioned as well. We must ask again, with Angela Davis:

So, the question is: How does one address the needs of prisoners by instituting reforms that are not going to create a stronger prison system? Now there are something like two-and-a-half million people behind bars, if one counts all of the various aspects of what we call the prison-industrial complex, including military prisons, jails in Indian country, state and federal prisons, county jails, immigrant detention facilities—which constitute the fastest-growing sector of the prison-industrial complex. Yeah, so how—the question is: How do we respond to the needs of those who are inside, and at the same time begin a process of decarceration that will allow us to end this reliance on imprisonment as a default method of addressing—not addressing, really—major social problems?

And the answer – Abolition.

(This post is an updated and revised version of a post that originally appeared in the Criminal Injustice Series at Critical Mass Progress)