Reform or Abolish?

When the R&B star R. Kelly was arrested in 2019 on a variety of charges including sexual assault, kidnapping, and child pornography, the response on social media was cathartic celebration. The antiprison activist Mariame Kaba was not surprised by this; Kelly had been accused of victimizing girls as young as fourteen over more than two decades, a particularly abhorrent record of predation. Kaba was puzzled, though, that the punitive chorus included professed prison abolitionists—people who advocate the complete elimination of prisons—“announcing,” in her words, “their joy at the prospect of Kelly being locked in a cage for the rest of his life.”

Abolitionists are “always asked, ‘What about the rapists?’” Kaba writes in an essay coauthored with Rachel Herzing and collected in her compilation We Do This ’Til We Free Us. “Lately, the question has been phrased like this: ‘Well, surely you don’t mean that R. Kelly shouldn’t be in prison?’ We do.”

“In any movement for change, there will be multiple theories and visions,” Kaba and Herzing write. “But a commitment to the principles of prison abolition is incompatible with the idea that incarceration is a just or appropriate solution for interpersonal harms—ever” (emphasis theirs).

Beginning in the late 1970s the number of Americans in prison and jail, driven largely by the war on drugs and white fear of Black empowerment, soared from a half-century norm of about 110 prisoners per 100,000 people to roughly 500. (Incarceration has been in a slight decline since a peak in 2008, with the largest drop attributed to the Covid-19 pandemic.) The incarcerated are disproportionately Black men. In 2015, The New York Times calculated that 1.5 million Black men between the ages of twenty-five and fifty-four—which demographers call the prime-age years—were effectively “missing,” meaning incarcerated or dead. Nearly one in twelve Black men in this age group was behind bars, compared with one in sixty non-Black men.

Since the explosion of the American prison population and the rise of social media, which has allowed images of Black Americans dying at the hands of police to go viral, the utopian notion of an America without police or prisons has moved from the leftist fringe to the outskirts of the mainstream. This is thanks in large part to the work of Kaba and charismatic scholar-activists like her, including Ruth Wilson Gilmore and Angela Y. Davis, who argue that what they call the “prison-industrial complex” or, to use Kaba’s term, the “criminal punishment system” (what most people call the criminal justice system), is too corrupt for mere “reform”—that it is a tool of capitalist oppression, racism, and the patriarchy, and that it must be uprooted completely, no exceptions, “ever.”¹

Not everyone who identifies as an abolitionist goes quite so far. Michelle Alexander, for example, whose influential 2010 best seller The New Jim Crow portrays the American practice of criminal justice as an afterlife of slavery, told an interviewer in 2016:

I consider myself a prison abolitionist, in the sense that I think we will eventually end the prisons as we know them. That doesn’t mean that…we don’t need to remove people from the community who pose a serious threat or who cause serious harm for some period of time.

But more radical abolitionists regard incremental measures as, in Gilmore’s phrase, “tweak[ing] Armageddon,” making an inhumane system more palatable and distracting attention from the urgent business of creating a just society. They regard a focus on mainstream reforms—education behind bars, job training, behavioral therapy, addiction treatment, easing family contact, bail and sentencing reforms, minimizing the torment of solitary confinement, and other measures—as postponing the ultimate abolitionist agenda, which Davis described in her 2003 manifesto Are Prisons Obsolete? as

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.

This agenda, Davis argues, would reduce violence by addressing its underlying causes in a way the current system—which, in the abolitionist view, counters violence with more violence—cannot.

What would happen to R. Kelly in an abolitionist world? Consequences that Kaba suggests might be acceptable include Kelly paying restitution to his victims and their communities, being barred from the recording industry, making a public apology, undergoing counseling, and being restricted from “access to specific groups or spaces.” A fair response to Kelly’s abuses, Kaba says, would consider not just the individual offender but “the larger social, economic, and political context” that formed and enabled him.

“In the case of Kelly, what accountability do we attribute to the record company executives propping up and facilitating his ability to harm people?” she writes. “Should they also be prevented from exercising power within the recording industry?” She insists that the remedies should be determined with input from the victims and then enforced, in a way she doesn’t specify, by the community.

“Abolition is not about your feelings,” Kaba concludes. “It is not about emotional satisfaction. It’s about transforming the conditions in which we live, work and play such that harm at the scale and as prolonged as that perpetrated by R. Kelly cannot develop and cannot be sustained.”²

Academics who study crime generally count four possible justifications for putting people in prison: punishment (the price for ignoring society’s rules), incapacitation (immobilizing individuals who would do us harm), deterrence (making would-be criminals think twice), and rehabilitation (preparing offenders to be better citizens and neighbors when they rejoin the free world). As American incarceration rates began to soar fifty years ago, these rationales for prison came under intense scrutiny from scholars and advocates.

The case for punishment was articulated by Justice Potter Stewart in Gregg v. Georgia, the 1976 Supreme Court ruling that reinstated the death penalty:

The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.

But what does a lawbreaker “deserve”? What is enough? The punitive impulse, inflamed by sensational media and political fearmongering and governed by harsh mandatory sentencing laws, is often wildly out of proportion to the offense—and, like almost every facet of our criminal justice system, falls most cruelly on Black communities.

As for containing or deterring crime, prisons can also make things worse, sending forth a population brutalized, alienated, stigmatized, and unskilled, prime candidates for recidivism. And rehabilitation? With some admirable exceptions, institutions that go by the name of “corrections” tend to do a pretty mediocre job of correcting. About two thirds of released prisoners are rearrested within five years, according to the federal Bureau of Justice Statistics.

The scandal of mass incarceration energized a criminal justice reform movement that includes scores of think tanks, civil rights organizations, prisoner advocates, clergy, and educators. By the mid-2010s, traditional civil liberties stalwarts had been joined by Right on Crime, a Texas-based campaign that promises to promote “successful, conservative solutions” to the punitive excesses of American law and order. It is strange to recall that several Republican candidates for the 2016 presidential nomination—Rand Paul, Jeb Bush, Rick Perry, and even Ted Cruz—mouthed talking points of reform, mostly from a libertarian or fiscal-conservative vantage point. That year the American Conservative Union’s annual conference, a showcase for right-wing presidential hopefuls, featured three panel discussions on criminal justice reform, including one called “Prosecutors Gone Wild.”

Some students of criminal justice (including me) wondered if this might be a “Nixon goes to China” moment.³ Even President Trump gave a nod to rehabilitation, signing the 2018 First Step Act, which passed the Senate 87–12; the new law reduced harsh sentences for crack cocaine and promised prisoners more opportunity to earn early release by participating in programs aimed at reducing recidivism. The measure affected only the roughly 10 percent of inmates serving time in federal prisons. (Trump also famously pardoned Alice Marie Johnson, a woman sentenced to life for involvement in cocaine trafficking, whose cause was taken up by Kim Kardashian. But Trump granted executive clemency to only 237 prisoners in all, the fewest of any modern president, and most were political cronies and benefactors.)

Abolitionists were understandably suspicious of the apparent outbreak of bipartisan goodwill. In a 2015 essay reprinted in Abolition Geography, Gilmore cautions the antiprison movement against “a tendency to cozy up to the right wing, as though a superficial overlap in viewpoint meant a unified structural analysis for action.” She warned against “historical amnesia,” reminding her readers that “bipartisan consensus built the prison-industrial complex” in the first place. Indeed, in the hyperpolarized politics of today, with violent crime spiking in some cities, the reformist voices on the right have been more muted lately.

In their diagnosis of the system’s failures, the abolitionists and most reformers occupy considerable common ground. They start with a consensus that we imprison too many people for too long, compared with the rest of the world and with our own history. Both camps criticize jail sentences for such relatively petty crimes as small-scale drug dealing; draconian mandatory sentences; the punitive use of solitary confinement; and the modern version of the debtors’ prison, cash bail. There is support in both camps for noncustodial alternatives to prison (though Gilmore objects to surveillance devices like ankle monitors as a high-tech version of incarceration). Both generally agree that our system has a disappointing record at best in fulfilling its four declared missions.

When it comes to identifying the shortcomings of American incarceration, abolitionists deserve credit for getting there early—Emma Goldman, the anarchist and occasional prisoner, published “Prisons: A Social Crime and Failure” in 1917—and they have helped make the case that the current system is often unjust, inhumane, and ineffective at protecting public safety.

Moreover, most progressives see crime as at least in part a product of desperation, and thus agree with abolitionists on the need to invest preemptively in education, housing, health care, and jobs. Many who stop short of advocating the outright elimination of police and prisons favor shifting at least some responsibility for public safety to civilian organizations. “Violence intervention” programs that dispatch street-savvy crews to mediate gang disputes have been credited with easing gun violence in several cities, including New York and Chicago. “Restorative justice,” a protocol that—with the blessing of a judge—invites accused and victims into a moderated discussion about the harm done and the best way to make amends, has gained a foothold in some jurisdictions as an alternative to court. Some cities, inspired by a long-running program in Eugene, Oregon, now respond to certain low-risk 911 calls by dispatching mental health professionals rather than cops to defuse a crisis.

Ruth Wilson Gilmore, a professor at the City University of New York, is a social geographer. She studies crime and punishment through the lens of places and boundaries—for example, how the penchant for treating prisons as rural pork-barrel projects, remote from the neighborhoods where most crime originates, isolates prisoners from family support. She asserts that “the expansion of prison constitutes a geographical solution to socioeconomic problems, politically organized by the state.”

Much of Abolition Geography may seem impenetrable to readers not conversant with the rhetoric of Foucault, Gramsci, and Marx. For instance, in a 1991 summons to students enrolled in what she calls “decorative” Black studies departments, she declares:

We need to take apart—to disarticulate—theory from decorative imitation if we are to rearticulate its epistemological power in political praxis…. Part of the ongoing project is to identify the discursive powers in our diasporic condition, enacting the metamorphosis from symbolic contingencies to a new and unified collective social subject.

(Buried in the thickets of abstraction are welcome flashes of wit. When a student asks Gilmore why an activist would want to be a geographer and study questions like “Where is Nebraska?,” she replies that she is actually studying “Why is Nebraska?”)

Mariame Kaba is a more accessible writer and seems more tolerant of reformers, as long as they don’t claim to be full-fledged abolitionists. “People think that either you’re interested in reform or you’re an abolitionist—that you have to choose to be in one camp or the other,” Kaba said in a 2017 interview included in We Do This. “I don’t think that way. For some people, reform is the main focus and end goal and for some people, abolition is the horizon. But I don’t know anybody who is an abolitionist who doesn’t support some reforms.”

Gilmore and Kaba distinguish between “reformist reforms” that don’t fundamentally threaten the status quo—for example, commuting death penalties to life without parole, a slower version of death row—and “nonreformist reforms” such as lobbying to stop new prison construction or slash police budgets.

A few common arguments run through these books. Among them:

—Trying to make better prisons or better policing is a fool’s errand. In a 2014 essay on the police killing of Michael Brown in Ferguson, Missouri, Kaba cautions against focusing narrowly on legal consequences for Darren Wilson: “I am not against indicting killer cops. I just know that indictments won’t and can’t end oppressive policing, which is rooted in anti-Blackness, social control, and containment.”

In No More Police, Kaba’s latest book, with Andrea J. Ritchie, she writes:

While the lure of “reimagining” and “reforming” policing is powerful—both of us have fallen prey to it at various points—history, experience, and research all point to the reality that policing is not “broken,” it is operating exactly as it was intended: dealing out daily violence to contain, control, and criminalize.⁴

This conspiratorial view of the criminal justice system informs most of the abolitionist canon, and I think it gives too little credit to incompetence, prejudice, and the vindictive side of human nature.

—Abolition is not about innocence. While stories of the wrongfully convicted make for powerful narrative, Gilmore wrote in 2015, “by campaigning for the relatively innocent, advocates reinforce the assumption that others are relatively or absolutely guilty and do not deserve political or policy intervention.” The same warning applies to favoring “nonviolent” offenders. That’s good advice whether your aim is to abolish the criminal justice system or to improve it. The protections of the Constitution were not written just for the pure of heart.

—Abolitionists should not be caricatured as simply naysayers. They offer a positive reinvention of society, if only we had the imagination to see it. Other advances that once seemed unthinkable—emancipation of the enslaved, marriage equality—were accomplished by leaders with vision and old-fashioned grassroots organizing.

The writers have a hard sell to make. Abolition is not as reflexively dismissed as it was a few decades ago, but Americans are not exactly clamoring to empty the prisons and disband the police. Growing pluralities of Americans both white and, to a lesser extent, Black say they want more policing, not less. Republicans have weaponized the call for “defunding” to portray Democrats as the party of disorder, and even the mayors of progressive New York and San Francisco—Eric Adams and London Breed, both Black Democrats—have waffled on criminal justice reforms they inherited from liberal predecessors.

The abolitionists have two fundamental questions to answer. The first is whether the ideal of a world where cops and prisons are somehow replaced by the benign judgments of “the community” is achievable, sustainable, or, frankly, desirable. To avoid slipping into mob rule, don’t you need some instruments, some guardrails, and doesn’t that become policing by another name? Do we really want a system based on crowdsourcing justice? How is that different from Justice Stewart’s specter of “vigilante justice, and lynch law”?

The second question is, what do we do in the meantime? During the years—generations—it takes to give birth to this world free of violence, inequality, tribalism, and selfishness, do we just write off the people suffering now from the cruelties of prisons and policing as involuntary cannon fodder in the battle for an imagined future? My book What’s Prison For? argues that rehabilitation, however imperfect, is not only a moral imperative but a contribution to public safety.⁵ Many, perhaps most, of those who work to improve criminal justice feel bouts of fatalism, but I like the analogy Danielle Sered, a leading restorative justice advocate, offered me. She likened reformers to pacifists who drive ambulances in wartime; they’re no less antiwar.

Probably the most potent challenge to the abolitionists is “the dangerous few”—what to do with the Charles Mansons and Ted Bundys and Dylan Roofs and Larry Nassars (and R. Kellys?) who could reasonably be regarded as a threat to public safety. Writing in the June issue of the Harvard Law Review, Thomas Ward Frampton of the University of Virginia School of Law meticulously and respectfully reads the abolitionist answers to the problem of violent sociopaths, and finds them mostly unpersuasive. “Those most concerned with the question of ‘the dangerous few’ seem the least likely to accept the abolitionist’s assurances that ‘the dangerous few’ will wither away under a postrevolutionary social arrangement,” Frampton writes. But the abolitionist who accepts the principle that one category of dangerous repeat offenders ought to be isolated from the rest of society steps onto a slippery slope. So when pressed about the dangerous few, abolitionists tend to equivocate or change the subject.

In rejecting the idea of better prisons, abolitionists sometimes make the perfect the enemy of the good.

Take the case of Rikers. In the spring of 2017, New York City approved a plan to close the infamous Rikers Island jail complex, a sordid, overcrowded, remote death trap. The plan called for cutting the average daily incarcerated population of about 7,300 by more than half, which would be accomplished by reducing bail, diverting mentally ill prisoners to hospitals, and speeding up court dispositions. Those who remained in custody—people awaiting trial or serving short sentences—would be housed in four more humane facilities in neighborhoods convenient for lawyers and families. The smaller jails would offer less crowded spaces for therapy and education. The city’s approval was arguably Bill de Blasio’s most progressive accomplishment in two terms as mayor, and by the standards of American corrections it was a radical attack on mass incarceration.

The plan encountered predictable resistance from nearby residents opposed to having jails in their backyards, from unions worried about protecting jobs, and from law-and-order politicians. But reformers in City Hall and an alliance of prisoner advocates hoped the opportunity to shut the notorious facility and slash the captive population would galvanize support in this deep-blue city. Instead it galvanized an organization called No New Jails, which demanded Rikers be closed and not replaced. Representative Alexandria Ocasio-Cortez—a standard-bearer of the progressive left whose district includes Rikers—denounced the Rikers plan on Instagram, linked to the No New Jails website, and urged her followers to demand that their representatives oppose the plan. The Rikers plan has been slowed but not (yet) stopped.

Neither Kaba nor Gilmore mentions Rikers in the works under review, though Kaba embraced No New Jails on social media, arguing that keeping the cells full would become a motive for more arrests. This follows abolitionist logic that the system’s demand for criminals drives supply.

“What do you think is going to happen when the four new jails are built?!” she tweeted. “They are going to need people to fill them. They’re not going to leave empty $10B jails.” Meanwhile, fifteen Rikers prisoners died last year and another sixteen have perished as of September this year, mostly as a result of overdoses and suicides.

The fact that prison is far from fulfilling its missions doesn’t necessarily discredit the legitimacy of those missions. Imprisoning R. Kelly will leave a lot of sexual predators at large, but one fewer is one fewer. The performative sentence handed down in the case of Bernie Madoff—150 years in prison for an extensive Ponzi scheme—will not deter every other Wall Street ripoff artist, but it may give pause to some. College courses for residents of Sing Sing (where I have taught) will not transform all incarcerated students into model citizens, but they may help stabilize some wobbly lives.

Over the past decade, reform-minded corrections officials in several states have studied the more enlightened practices of Europe. In Scandinavia, Germany, and the Netherlands, prisons resemble college campuses, with staff more like professional social workers than paramilitary troops and programming designed to ensure prisoners are healthy and employable when released. Their underlying philosophy is not that crime should go unpunished—the countries hailed as models of enlightened corrections do still imprison thousands of people—but that punishment should be proportionate to the offense, clearly defined, humanely applied, and constructive. They define punishment as a period of restricted freedom, during which offenders retain all the other rights of citizens (including the right to vote) as the state prepares them for a successful return to the free world.

Pilot programs in several American states, organized by reform groups like the Vera Institute of Justice and Amend, based at the University of California at San Francisco, emulate aspects of European prison culture. They offer a sense of purpose, a focus on individual pathology, a semblance of normal life, and staff who behave more like counselors than jailers. Data on the results are sparse, but the corrections officials I talked to in Connecticut, Pennsylvania, Oregon, and North Dakota are convinced the model makes for less violence inside and lower recidivism after release. More studies are in the works.

These promising experiments are expensive, usually requiring some retrofitting of facilities, extensive retraining, and better staff-to-inmate ratios—the opposite of “defunding.” Kaba and Gilmore don’t discuss these ventures in the books at hand, but no doubt they would regard them as “reformist reforms,” measures that merely postpone the hoped-for revolution. The United States, of course, is not a small, homogeneous, and oil-rich welfare state like Norway. But adapting Norway’s philosophy of prison to the US requires a far smaller leap of imagination than abolishing prisons altogether.