Teaching Penal Abolition

Amna Akbar –

In April, the New York Times ran a profile on abolitionist visionary and scholar Ruth Wilson Gilmore, and the Harvard Law Review published an entire issue on prison abolition. This fall, the University of Texas Law School Human Rights Center is hosting a conference on abolition. The new journalistic outlet The Appeal runs abolitionist pieces as a matter of course, and outlets like Rolling Stone, The Nation, and Jacobin have too. Podcasts like Chris Hayes’s Why Is This Happening, The Appeal’s Justice in America, and Beyond Prisons have featured probing conversations on abolition with leading organizer-intellectuals Rachel Herzing and Mariame Kaba. And behind it all is a growing movement of abolitionist organizing and campaigns, calling to defund and delegitimize police and prisons, shift resources towards the social wage, and build alternative methods to dealing with the pains and crises of capitalism, white supremacy, and patriarchy that prisons and police now deflect and exacerbate: Critical Resistance, BYP100No New Jails Seattle, Mijente, Survived and Punished, INCITE, and more.  

Like the movements abolitionist ideas emerge from and are circulating in, abolitionist praxis is shaping the urgency and discourse around criminal law reform. A primary difference between abolitionists and mainstream reformers is the end goal: Abolitionists work toward eliminating prisons and police, and building an alternate and varied set of political, economic, and social arrangements or institutions to respond to many of the social ills to which prison and police now respond. Importantly, abolitionists see their struggle as part of the unfinished work of transforming  the afterlives of slavery in economic, political, and social life.

Abolitionist thinking is central to contemporary debates over how to interpret the meaning of the criminal law and our criminal processes and enforcement mechanisms: it is literally part of the subject of “criminal law” today. We should teach it that way. More broadly law scholars teaching any course touching on criminal law and procedure, police and prisons, borders and border enforcement, should teach abolition. I have written before, including with Jocelyn Simonson, about how to teach criminal law differently, in this movement moment, and attune to the centrality of racialized and anti-black violence to our criminal legal system. Here, I share some notes and resources on teaching abolition. In my experience, teaching abolition requires study, but the study and teaching are more fruitful than I can say in this brief post. Teaching and learning abolition has deepened my study of the history of the United States and the unfinished social movements that define its shape, expanded my imagination of the future, and profoundly reshaped my sense of the work ahead. 

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Organizing Towards a New Vision of Community Justice

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

Raj Jayadev and Pilar Weiss – 

social-movementsThe current criminal legal system has consistently weaponized the role of “the community” in its proceedings – often claiming that decisions have been made to achieve justice for “the community” or to protect “community” safety. As increased awareness of the incarceration crisis across the country has changed some of the dynamics in our public discourse, similar patterns invoking “the community” have remained. Mainstream political candidates openly claim they are progressive and offer reformist reforms in the name of “the community.” The experiences of people of color, the poor, the LGBTQ community, and immigrants in the criminal legal system have of course been that these claims of action and reform in the name of “the community” are not reflective of their actual needs or priorities.

In contrast, all across the country, activists and organizers are building a grassroots movement that is seeking to realize a different vision of justice, one that is based on a radical repositioning of “the community” and its power. This is a fight based on survival but also one seeking to shift power from those who have historically held it to those who have been historically disempowered, under-resourced, targeted by the system, and most impacted by structural inequalities. Law professor Jocelyn Simonson has written previously on the place of “the people” in criminal procedure, reimagining a more inclusive role of the public in the criminal process. Similarly, as the movement to end incarceration continues to develop and gains momentum, the organizing that fuels it is actively contesting the place of “community.” This repositioning of community extends beyond the immediate actions in front of us; it situates the community as the drivers of what the ultimate realization of a new vision of justice, healing, and power will look like.

In this piece, we hope to describe some examples of the spectrum of organizing tactics and practices that are currently part of both the repositioning of community and the creation of pathways towards the transformative vision abolitionist organizers have set out. As two long-time community organizers who work with dozens of community-based organizations and hundreds of organizers and families through our work with Silicon Valley De-Bug, the Community Justice Exchange, the National Participatory Defense Network, and the National Bail Fund Network, we are privileged to be part of the daily work and also see a developing arc. When we, as organizers, refer to “the community,” we are referring to individuals and their families, neighborhood, and those with a common interest and/or shared identity who are all directly impacted by structural inequalities. We don’t assume that there are any definitive answers at this point, but instead that we are in the middle of a process of finding ways to take power and define what justice in the name of “community” actually means.

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Debtor Organizing Against Neoliberalism

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

Luke Herrine – 

social-movementsNeoliberalism is in crisis. For the first time in decades, alternatives of both terrifying and exhilarating varieties are on the table. The more democratic and humane alternative will only prevail if well organized social movements directly challenge the ruling class’s material base of power.

What will those movements look like? If history is any guide, they will have to be collectives of people whose everyday suffering can be transformed into relatively short-term campaigns for material betterment, medium-term campaigns for legal reform, and the longer-term work of building solidarity necessary to put truly transformative change on the table. The green shoots in the labor movement, the formations in and around the Movement for Black Lives, and increasingly energetic climate activism, among others, provide some reason for hope. Less discussed has been the possibility of debtor organizing, the subject of an inspiring new report from the Institute on Inequality and Democracy authored by Hannah Appel, Sa Whitley, and Caitlin Klein. The report should be read carefully by LPE sympathizers with an interest in creative practice: potential for legal strategies abound.

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Social Movements in the Struggle for Redistribution

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

Aziza Ahmed – 

social-movementsIn their recent and compelling contribution to the LPE blog, Amna Akbar, Sameer Ashar, and Jocelyn Simonson push us to consider how a left political agenda ought to be crafted. They aim to give specific content to Jedediah’s Purdy’s observation that the Constitution’s core principles have been interpreted to entrench current power structures, thus undermining progressive efforts at redistribution. And, they seek to provide a path for those who agree when Sam Moyn claims that it is not courts but legislatures that will help realize a progressive vision. But how? The answer, they argue lies in turning to social movements. A left legal agenda must, they argue, “be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces.”

The idea that social movements should be central to progressive agendas is appealing, I respond with two questions that aim push this discussion further. First, it is important to explicitly consider what constitutes a social movement – which voices rise to the top, who sets the agenda, and who garners resources? These questions emerge from my own work on legal reform efforts by feminist social movements where the question of who can speak for women, how left legal activism ought to take shape, and what redistributive goals should take priority over others has splintered feminist organizations and has had material consequences, often negative, on the lives of very girls and women they purport to support. Second, and relatedly, legal realism teaches us that law exists in the foreground and background to shape our capacity to bargain, strategize, and organize. I wonder how lawyers and legal strategy constitute the redistributive imagination of left organizations?

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Coming of Age at the End of History

NB: This post is part of an ongoing series on LPE & Social Movements. For the framing pieces, see here and here

John Whitlow – 

social-movementsIn 1989, in the midst of the collapse of the Soviet Union and just before the fall of the Berlin Wall, Francis Fukuyama argued, famously, that we had reached “the End of History.’ Echoing Margaret Thatcher’s dictum that ‘there is no alternative’ to neoliberal capitalism, Fukuyama averred that the triad of free markets, liberal democracy, and consumerist culture had become universal, enveloping the planet so thoroughly as to flatten historical time. There would be no more revolutionary upheaval, no more transformative social change. An ever-expanding capitalism, governed by some variant of representative democracy, was the only game in town, and it was here to stay.

I was fifteen when Fukuyama penned “The End of History,” and – as much as I am loathe to admit it – I am a child of neoliberalism. I was born at the end of 1974, just as New York City entered its fateful descent into fiscal crisis. I grew up in Baltimore during the Reagan years, a witness to the ways in which racial capitalism eviscerated the city’s black and white working class, leaving many of my friends and their families adrift in an economy and a place that had been structurally abandoned. All the while, I was indoctrinated into a public policy common sense of austerity, privatization, and an expanding carceral state; as well as a hollowed-out notion of citizenship in which our subjectivities are constructed primarily through individual-entrepreneurial, rather than solidaristic-democratic, terms.

Looking back, I am struck by how much of this I’ve imbibed, how much it has ordered what I’ve regarded as accepted knowledge, even as I’ve attempted to resist it. For most of my adult life, I’ve been a poverty lawyer/movement lawyer/community lawyer (the terminological distinctions matter, but not so much for the purposes of this essay), and, at times (especially recently) I have found myself questioning how I’ve gone about my work. Of course I knew that the pronouncements of Fukuyama and Thatcher were bankrupt – that they were the product of a politicized theology – but to what extent have my own political, intellectual, and professional horizons been limited by an unwitting, silent acceptance of that same theology?

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Movement Visions for a Renewed Left Politics

Amna Akbar, Sameer Ashar, and Jocelyn Simonson – 

sunriseWhen members of the Sunrise Movement confronted Senator Dianne Feinstein ten days ago, they demonstrated the renewed vitality of an old force in democratic politics: organized young people bringing bold new visions to complex social problems. In the video, we see the power of movement participants to transform how we think and dream. In times of peril and possibility, radical visions—where the scale of the vision matches the scale of the problems we face—can capture our imagination and change what we think is possible.  In this way, social movements galvanize a different kind of force in politics, one of hope and collective action rather than cynicism and alienation.  

Left social movements are both a fount of creative law-making and a means by which to hold politicians to account. From the lunch counter sit-ins of the Civil Rights Movement to the Black Panther Party’s and Young Lord Party’s Ten and Thirteen Point Programs, activists have a long history of altering our sense of what is possible, as Aziz Rana recently laid out on this blog. When we pay attention to collective forms of struggle, as Kate Andrias argues, we see how power-shifting and law-making happen from the ground up.

As Bob Hockett recently explained, the Green New Deal is the product of the Sunrise Movement’s recognition that economic injustice and environmental disaster are existential threats to our well-being. By linking issues that are typically seen in policy-making spaces as distinct, the Green New Deal reckons with the clash between human needs and capitalism’s rapacious hunger for land, labor, and resources. Rather than shrink in the face of an immense set of challenges, the Green New Deal rises. It places the transformation of our social, economic, and political order into the realm of possibility.

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Uniting the Working Class Across Racial Lines

Uniting the Working Class Across Racial Lines

Daria Roithmayr – 

The Democratic Party is once again dividing into a left versus center configuration, just in time for the November Election. The catalyst for this renewed debate appears to be Alexandria Ocasio-Cortez’s massive primary upset in New York’s fourteenth district. Ocasio is a democratic-socialist who has focused on her district’s predominantly Latino and black working class, campaigning on a platform of Medicare for all, a federal job guarantee, and the dismantling of ICE. More than almost any other candidate this season, she has developed an affirmative vision of economic, social and racial dignity for all working-class Americans.

The daughter of Puerto Rican parents, she has argued that the interests of people of color should be represented in the district. Remarkably, some of her strongest support came from predominantly-white Astoria. To those who accused her of playing identity politics, she responded:

“I can’t name a single issue with roots in race that doesn’t have economic implications, and I cannot think of a single economic issue that doesn’t have racial implications. The idea that we have to separate them out and choose one is a con.”

This post serves as a follow-up to an earlier post in which I issued a call to unify the old and new working classes. In this post, I want to accomplish two things. First, I want to further uncover the relationship between race and class. In particular, I want to explore the argument that race segments the working class into less-free workers of color and more-free white labor. Second, I want to strengthen the call to unite the old and new working classes across the race-class divide.

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Moving Environmental Politics Out of the Courts

Alyssa Battistoni— 

On the campaign trail in 2016, Donald Trump took aim at Barack Obama’s signature climate change policy, the Clean Power Plan, as a “job-killing regulation.” Trump vowed to tackle regulations “on Day One.” By March 2017, he had signed an executive order directing EPA head Scott Pruitt to review the policy.

But even before Trump was elected, over half the states in the country joined oil and gas companies in suing to overturn the Clean Power Plan in 2016, accusing the EPA of “regulatory overreach.” Now that Trump is trying to roll back the CPP, a group of seventeen different states is suing the EPA to stop it from delaying implementation of the plan. The courts may save the Obama policy yet. But the ongoing litigation battles illustrate how court-centric environmental politics have become, and the limits of legal strategies in achieving political victories.

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Beyond Access to Justice: Challenging the Neoliberal Roots of Hyper-Gentrification

John Whitlow – 

New York City recently became the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of eviction. This was an important step in the fight for equal access to the courts, and a significant victory for tenant advocates who had waged a decades-long campaign to ensure fairness for people on the verge of losing their homes. I cut my teeth as a New York City tenant attorney in the early 2000s, when the right to counsel felt closer to a pipedream than a reality, and I can say unequivocally (and uncontroversially) that providing tenants with a lawyer when they enter the maw of housing court is a good thing. At the least, it will keep landlord attorneys and judges on their toes and reduce the stress and trauma tenants feel when navigating a byzantine system on their own. At the most, it will allow people to mount robust defenses and save their apartments, in the process preserving some of New York’s evaporating supply of affordable housing. But I can also say that it is not nearly enough to derail the hyper-gentrification that has been a through line of recent economic development policy and has its roots in the fiscal crisis of the 1970s.

In the context of an over-heated housing market, the right to counsel should be viewed as a limited intervention that operates when eviction is imminent, i.e. after the structural sources of displacement have done their work. Failure to recognize the limits of the right to counsel – and of access to justice paradigms more generally – naturalizes those structural sources and legitimates as normal the widening inequalities produced by our current political-economic and social order. Challenging inequality and displacement in a deep and lasting way requires moving beyond access to justice and critically engaging the core tenets of market-driven urbanization.

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