Against Abolitionism

We have the right to a portion of utopia within the limits of the possible.

—Pierre Bourdieu, Le Sociologue et l’historien

The modern bureaucratic state remains the paramount fount of criminal deterrence, surveillance and sanction, notwithstanding claims of devolution, privatization and ‘governmentalization’.footnote¹ The liberal democratic Leviathan cannot secure its rule in the absence of a properly functioning and minimally legitimate triad of police, court and prison. But what kind of penal state should we build, welcome or tolerate? How large, how intrusive, how punitive? What should its priorities and modus operandi be? Recently, jurists led by Máximo Langer, Benjamin Levin, Yoav Sapir, Guy Rubinstein and Trevor George Gardner have made the doctrinal case for reforming the structure, functioning and priorities of the punishment apparatus in line with what they call ‘penal minimalism’.footnote² In this article, I amplify and supplement their juridical arguments with a properly sociological plea for radical penal minimalism—that is: a minimalist position that goes to the social root of penality, takes account of its built-in class and ethnic duality as well as its spatial selectivity and injurious nature, yet acknowledges its functional indispensability as a core political institution.

This position implies a clear and irrevocable rejection of penal abolitionism, deployed by left activists and scholars of justice rightfully exasperated by the virulent and seemingly unstoppable penalization of race and poverty in the metropolis, but—I will argue—often disengaged from the prosaic realities of crime and punishment as they play out on the streets, in the courthouse and behind bars. Theoretically, too, penal abolitionists typically fail to grapple with the problem of the state’s imperative to gain and maintain its monopoly over judicial force and stigma, because penality is the chief practical and discursive means for tracing the bright border separating the law-abiding and therefore worthy and deserving citizen from the undeserving and immoral lawbreaker—the ‘enemy of society’. In this perspective, the criminal is, along with the pauper and the foreigner, the social type that, by contraposition, defines and sanctifies the full-fledged member of the civic community by concentrating and embodying pollution, danger and dereliction. He is the living, breathing anti-citizen lurking in the shadowy depths of the city’s underbelly, all the more feared when wearing a dark skin, speaking a foreign language and practicing an alien religion.footnote³

It is perplexing, in this regard, that the country which has developed the most bloated and most severe penal apparatus of the capitalist West has also spawned the most vibrant, small but vocal, web of activists and intellectuals advocating for its outright eradication, often at the expense of piecemeal amelioration or partial take-down. Perhaps the very enormity of the former and its imperviousness to piecemeal alteration has pressed the latter to philosophical extremity. Keeanga-Yamahtta Taylor suggests as much when she recounts ‘the sanguinary and absurd cycle of racist police violence’ that no reform seems able to stop.footnote⁴ Regardless, abolition is ‘good to think with’ and fruitful as a suite of Gedankenexperimente in the manner of Max Weber designed to stretch the mind and envisage novel configurations and institutions of punishment, as well as alternatives to the same. It also eloquently reminds us of the variety and scale of the social harms caused by the penal state. But such thought experiments should not be mistaken for plausible historical options.

This is not to gainsay the political engagement and everyday work of abolitionist activists on the ground in the us, many of them people of colour (especially women) who have suffered at the hands of the penal state and who have founded, lead or otherwise participate in myriad organizations such as Critical Resistance, incite! (women of colour survivors of violence), Survived and Punished (formerly incarcerated individuals), She Safe We Safe (militants adopting a black queer feminist perspective) and Project nia (incarcerated youth).footnote⁵ These organizations engage in varied forms of local mobilization; design and run diverse interventions that tug at the penal state; provide a safe space for debate and much needed services for people embroiled in the justice apparatus and their loved ones; and produce field reports and educational toolkits. They give a bullhorn to subaltern voices silenced by the conventional parameters of public discussion about punishment and bestow value upon the knowledge of penalized people.footnote⁶ The point of my critique is not to disaffirm this work but to push its intellectuals, organic and academic, to better articulate the abolitionist position, which I find philosophically alluring but logically inconsistent, sociologically untenable and politically counterproductive.

Responding to the urgency of the political moment, American advocates of penal abolition characteristically overlook the first wave of modern prison abolitionism which arose in the tow of Nils Christie and Thomas Mathiesen in Scandinavia and Louk Hulsman in the Netherlands in the 1960s and 1970s as well as the kindred works of Ruth Rittenhouse Morris in Canada and Eugenio Rául Zaffaroni in Argentina.footnote⁷ This deprives them of the lessons of past experiments and causes them to repeat the strategic mistakes of the earlier generation of abolitionists, such as rolling out the untenable distinction between ‘positive’ and ‘negative’ reforms, reworked as the duality of ‘reformist reform’ and ‘non-reformist reform’ (itself borrowed from the French ecologist philosopher André Gorz).

Abolitionists often present themselves as a ‘movement’ but they are more like a rhizomatic constellation of militants and intellectuals who do not always agree on goals, means and tactics. I centre my appraisal on advocates of penal abolition who, taken together, argue for the elimination of all three constituents of the penal triad—the police, the court and the prison—and not their mere shrinkage, which, horresco referens, would make them penal minimalists. Stateside, in the wake of the Black Live Matters mobilization and the public-torture killing of George Floyd, abolitionism seems to have become a new rhetorical badge of civic courage and political progressivism among scholars and activists of law, race and inequality.footnote⁸ The word has turned into a shibboleth and spawned multiple derivations: school abolition, social work abolition, debt abolition, poverty abolition, border abolition, abolition geography, abolition democracy. But pluralizing the word does not bolster its analytics nor clarify its politics. Consider six troublesome features of penal abolitionism, as propounded by many American intellectuals and militants, whose friendly but unsparing critique will, I hope, serve to highlight possible paths in the (re)organization of punishment.