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The Weekly Abolitionist: Pitfalls and Possibilities

The protests, police violence, and repression in Ferguson have sparked nationwide conversations about police militarization and misconduct. There’s some incredibly promising potential here, as more and more people become aware of the brutality of the modern criminal justice system. However, there are also some potential pitfalls that deserve cautious examination.

First, the good. Popular commentators have been offering insightful analysis of police militarization. Perhaps the most notable is John Oliver, whose bit on Ferguson and police militarization was informative, incisive, and darkly hilarious. Thanks to this sort of commentary, plenty of people who hadn’t even heard of police militarization until recently are now aware of why it’s a problem.

Anarchist commentators have offered particularly insightful analysis in the wake of Ferguson. Here at the Center for a Stateless Society Grant Mincy has linked the protests in Ferguson to a broader trend of revolutionary movements, Cory Massimino has called for the abolition of the police, David D’Amato has analyzed what makes the US a police state, and Ryan Calhoun has called on Ferguson to “embrace community chaos over police order.” Over at AntiWar.com, Dan Sanchez has also called for the abolition of police, correctly identifying them as occupying forces that undermine peace and security rather than upholding them.

But it’s important to remember that this isn’t primarily about a national conversation. It’s about people’s lives. The people of Ferguson are facing arrests, police involved shootings, raids, tear gas, and a warlike environment that prevents the peaceful social cooperation that supports human life. To mitigate this tragedy, it’s important for people within and outside Ferguson to cooperate to support those being harmed by state violence. One way to do this is supporting the legal defense fund for those arrested in the course of the protests. Another is supporting the Amnesty International team that is on the ground observing and documenting abuse. Directly supporting those acting on the ground is one example of the vibrant voluntary cooperation human beings engage in from the bottom up, even when the top down violence of the state tries to thwart these actions.

While we should support these sorts of direct and bottom up actions, we must be skeptical of top down reform proposals, no matter how well-intentioned. The danger of public awareness and conversation surrounding serious issues is that politicians will seize on it to pass reforms, and these top-down reforms may make the problem worse rather than better. To understand why reform can be dangerous, just examine the history of criminal justice reform. In a review [PDF] of prison abolitionist Dean Spade’s book Normal Life, Jennifer Levi and Giovanni Shay note various examples of criminal justice reforms that unintentionally resulted in expanded state power and violence:

It is not only prison abolitionists who share Spade’s concern about the unintended consequences of prison reform. The sociologist Heather Schoenfeld writes that prison-conditions litigation in Florida contributed to a prison building boom there. Other commentators–including James Jacobs, Malcolm Feeley, and Van Swearingen–argue that prisoners’ rights litigation contributed to the “bureaucratization” of prisons, consolidating administrators’ power even as it asserted prisoners’ rights.

Examples of double-edged US criminal punishment reforms extend well beyond prison conditions. As described by Kate Stith and Steve Y. Koh (in “The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines,” Wake Forest Law Review, 1993), some of the initial proponents of federal sentencing guidelines were liberal academics and judges, who wanted to rationalize sentencing to make it fairer and more consistent. Unfortunately, as innumerable commentators have recounted, the implementation of the guidelines produced draconian sentences, ultimately contributing to the growth of US prisons.

That second point about liberal intentions motivating the establishment of federal sentencing guidelines is particularly important, given how these one-size fits all sentencing policies have driven the dramatic growth of the American prison state. A recent report from the National Research Council on the growth of incarceration in the US identifies the replacement of indeterminate sentencing with top down sentencing guidelines as a key policy that contributed to increased incarceration. The authors note multiple criticisms of indeterminate sentencing from the left that helped contribute to this change, writing:

Criticisms of indeterminate sentencing grew. Judge Marvin Frankel’s (1973) Criminal Sentences—Law without Order referred to American sentencing as “lawless” because of the absence of standards for sentencing decisions and of opportunities for appeals. Researchers argued that the system did not and could not keep its rehabilitative promises (Martinson, 1974). Unwarranted disparities were said to be common and risks of racial bias and arbitrariness to be high (e.g., American Friends Service Committee, 1971). Critics accused the system of lacking procedural fairness, transparency, and predictability (Davis, 1969; Dershowitz, 1976). Others asserted that parole release procedures were unfair and decisions inconsistent (Morris, 1974; von Hirsch and Hanrahan, 1979).

So leftist critique of an unfair criminal justice system inadvertently helped make it more harsh and punitive. These and other examples of reforms gone wrong are vitally important to understand, because the current national attention focused on mass incarceration, police brutality, and police militarization produces opportunities for reforms. And these reforms have a high risk of making the problems of punitive state violence even worse.

One particularly troubling trend in the wake of Ferguson is the trend of liberals calling for increased gun control in order to reduce the supposed need for police militarization. Commentators including UCLA law professor Adam Winkler have claimed that the prevalence of guns in America helps motivate police militarization and gun control may be a solution. But as Daniel Bier points out, police militarization has risen over a period of time when gun ownership has declined, crime has declined, and violent attacks on police have declined. In addition to being at odds with the facts, Winkler’s proposal risks promoting laws that increase the punitive power of America’s criminal justice system. As I’ve written previously, gun control laws have fueled the disproportionate incarceration of people of color in this country.

It’s good that more people are paying attention and talking about police militarization. But we must remember that police militarization is impacting real individuals and we should start by directly supporting the individuals and communities impacted, not attempting top-down political solutions. We must always be careful of the pitfalls and unintended consequences that come with politically enacted reforms. Direct action should be preferred to political action, and our analysis and prescriptions should be both radical and cautious. Radical in critiquing the root causes and institutions that contribute to these problems, and cautious in always being wary of unintended consequences and never allowing good intentions to make us support destructive top-down plans.

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