The Prison Abolition Movement
The United States has the highest prison population per capita in the OECD, with the number of prisoners almost doubling between 1990 (780,000) and 2000 (1,395,000). This growth in the prison population followed a period of rampant prison construction during the 1980s: the number of prisons doubled in the state of California, despite a lack of evidence that mass incarceration reduced crime rates or made communities safer. A growing body of literature is calling for the reversal of this process, and for the abolition of imprisonment as a form of punishment.
The practice of imprisonment as a punishment has been rejected on anarchist and pacifist grounds, but this piece will examine arguments of those in the black radical tradition. It will make a preliminary distinction between what will be called radical prison abolitionism and moderate prison abolitionism, arguing that only the latter have a satisfactory answer to the problem of unrepentant criminals who pose a danger to society (‘dangerous criminals’ for short).
Radical prison abolitionism holds that prisons are an illegitimate response to crime, even in their ideal form, and that we should seek to abolish all forms of imprisonment as a punishment immediately. Moderate prison abolitionism holds that prisons can be a legitimate response to crime, if reformed adequately, and that we should seek to abolish the prison system incrementally, while retaining some forms of imprisonment as a punishment. Angela Davis’ book Are Prisons Obsolete? (2011) will be used as an example of the former, and Tommie Shelby’s recent book The Idea of Prison Abolition (2022) as an example of the latter.
Radical & Moderate Prison Abolitionism
Angela Davis makes a historical critique of the prison system to support her case for the abolition of prisons. She draws on the work of historian Adam Jay Hirsch, who describes how the penitentiary arose in an age of slavery, and how they involved similar practices: both subordinate their subjects to the will of others; both reduce their subjects to dependence on others for basic needs (like food); and both sequester their subjects from the general population, forcing them to work longer and for less compensation than ordinary labourers.
The problem is not just that the penitentiary arose out of these conditions, however. Davis goes on to argue that mass incarceration became inextricably linked with the rise in global capitalism during the twentieth century, creating a phenomenon called the “prison industrial complex”. This system generates conditions whereby private corporations have a vested interest in retaining (or even increasing) the prison population, because prisoners are a source of cheap labour.
For these and other reasons, Davis feels that prisons are incompatible with respect for human dignity, and that we need to take radical steps to disentangle the concept of crime from punishment. Conceptually, this requires a move away from retributive towards restorative understandings of justice. Instead of looking for “prison-like substitutes” (like house arrest), we need to envisage a “continuum of alternatives to imprisonment”, such as revitalising the education system, expanding access to healthcare, and decriminalising drug use.
These policy proposals take a holistic view of the factors contributing to crime – an approach echoed by Tommie Shelby. Like Davis, he agrees that criminal justice should emphasize removing the “disadvantages that make descendants of slaves more vulnerable to being arrested and imprisoned”. He accepts that incarceration should not be the primary method of crime prevention, and also acknowledges the value of social policy in reducing crime rates. This being said, he takes issue with equating the penitentiary and slavery, given that prisoners retain bodily ownership, and their forced labour is temporary not permanent.
For Shelby, it is not unjust to require that prisoners do some work as a form of punishment, because it costs the taxpayer to house them, and their work might be considered a form of penance to society – though he does call for increased pay, and even the introduction of a prisoner’s workers union. While Shelby acknowledges that some prisons share morally unacceptable features with slavery, he feels Davis’ critique cannot be applied to all prisons as they might suitably be reformed.
In summary, Shelby believes prisons can be a legitimate tool for controlling crime (if reformed), while Davis does not. She has voiced scepticism over the reform project, because it distracts from the larger project of prison abolition. It also lends legitimacy to the prison system by implying that there is nothing wrong with imprisonment per se, only in the way it is currently administered. Shelby doubts whether Davis’ argument is strong enough to justify abolishing the entire prison system. The biggest challenge to both is how they would manage dangerous criminals.
How to Deal with Dangerous Criminals?
Could radical or moderate prison abolitionism justify using capital punishment as a last resort to deal with dangerous criminals? John Stuart Mill argued that it is a stronger deterrent for aggravated murder, whilst also being less cruel. Though the worry is its use might undermine the seriousness of some types of murder. More importantly, capital punishment is incompatible with the radical and moderate abolitionism defended by Davis and Shelby. Their policy proposals are undergirded by a conceptual move from retributive to restorative justice, and they would need to explain how capital punishment could be squared with theories of the latter (a dead person cannot restore their debt to the community). Furthermore, relying on capital punishment to manage dangerous criminals would reinforce the connection between slavery and punishment that Davis and Shelby are aiming to overcome.
This leaves Davis with few viable options for dealing with unrepentant criminals. She overestimates the potential for social policy to reduce not only crime rates, but cases of dangerous criminals specifically. Her argument implies that criminal behaviour is solely due to socio-economic inequalities which push would-be criminals over the edge, so to speak; therefore, if we rectify these inequalities, there would be no dangerous criminals. This ‘social policy solution’ pays no attention to those who become dangerous criminals through mental illness, or those who come from well-off backgrounds and are not driven by depravity. Davis offers no satisfactory solution for managing these individuals, because she is committed to the immediate abolition not only of the prison system, but all forms of imprisonment as a punishment.
Shelby’s response is more adequate because he leaves room for the retention of some prisons and forms of imprisonment as a punishment, despite seeking to incrementally abolish the prison system further down the line. These remaining prisons could be used to house dangerous criminals who are mentally ill and those not driven to crime through deprivation. The money saved could be invested into the police force, with an emphasis on strategies that increase visibility, like hotspot and problem-oriented policing, as well as social policies that reduce crime rates.
Moderate prison abolitionism does not overestimate the potential of social policy to the same degree as radical prison abolitionism. It views abolition as an incremental process whereby resources are gradually shifted away from imprisonment and money saved is reinvesting into managing crime in other ways. Social policy plays a role in this, but it is not the only mechanism to manage dangerous criminals.
It would be remiss not to acknowledge that neither Davis nor Shelby falls neatly into these categories. In an interview with David Rodriguez, Davis said she didn’t think there was a “strict dividing line between reform and abolition” and that it would be absurd for a prison abolitionist to refuse positive prison reforms. It could also be argued that Shelby is closer to a reformist than an abolitionist, given his broader objective of trying to show how the two are “despite appearances, [often] on the same side”.
Whether this categorisation challenge holds or not, the distinction still offers conceptual clarity and can be used as a tool to judge the strength of other prison abolitionist arguments. The problem of dangerous criminals highlights how moderate prison abolitionism is the only viable strategy for abolitionist thinkers.