by Paul Butler
—Nas and Lauryn Hill, hip-hop artists
Prison, like the Chokehold, has a literal and symbolic meaning for African American men. Prison is the place where approximately 1 million black people live, making them among the most incarcerated groups in the history of the planet. As a metaphor, prison is a dumping ground for people for whom society has no use—human garbage.8 The symbolic and literal came together in 2012 when Orange County, California, issued a press release entitled “Waste Management Partners with Police to Fight Crime and Watch Neighborhoods.” The press release announced a “Waste Watch” training program during which garbage truck drivers partnered with police to look for “suspicious activity.”9
U.S. prisons are built for black men, and black men will be free, literally and figuratively, only when prisons are no more. The Chokehold means that white supremacy is embedded in every aspect of the peculiar institution, from who is admitted to the kinds of conduct they are locked up for to how long they stay to how they are treated while there.
Our moral justification for forcing human beings to live in cages is that they have freely chosen to do wrong. But the United States has never had the capacity to make those judgments on a non-racial basis and it is hard to imagine that it ever will. So we have to stop it. Abolition does not mean that people who broke the law would be ignored by the government. It only means that the intervention would not be to lock them in a cage. Instead we must figure out whether there is anything essential that incarceration does, and, if so, are there other ways that can be accomplished?
Incarceration, for people of all races and genders, is violent and dehumanizing. Ending it will make the United States a more just nation. Think of prison abolition as the third gift people who fight for African American freedom will have provided to the country, after they defeated slavery and the old Jim Crow.
I get it. Prison abolition sounds crazy, reckless, and unsafe. The cage is the ultimate mediation of our anxiety about African American men. The Chokehold scares us into thinking that releasing black male criminals from jail would endanger us all. But here’s an essential fact you need in order to open your mind to abolition: fewer than one in five people who are in prison are there for homicide or a sex crime.10 If we think of those as the most dangerous crimes, we understand that prison is not mainly about protecting us from perilous offenders. Even if we are uncertain about the best intervention for the small group of inmates who are likely to seriously harm others on the outside, we can begin the abolitionist project by focusing on alternatives for the 80 percent of inmates who have not committed the most severe offenses.
This is not just a pie in the sky hypothesis. A recent study by New York University’s Brennan Center for Justice notes: “Over the last decade, 27 states have reduced both imprisonment and crime together. From 1999 to 2012, New Jersey and New York reduced their prison populations by about 30 percent, while crime fell faster than it did nationally. Texas decreased imprisonment and crime by more than 20 percent during the same period. California, in part because of a court order, cut its prison population by 27 percent, and violence in the state also fell more than the national average.”11
The Brennan Center estimates that almost 40 percent of people in prison could be released today with little impact on public safety. Its analysis is based on the fact that approximately 25 percent of prisoners are serving time for low-level offenses like drug possession and minor property crimes. Another 14 percent of inmates are, according to the report, serving time for more serious offenses but have been locked up so long that incarcerating them more would not have any additional public safety benefit. Just releasing this 40 percent would save taxpayers $200 billion over twenty years. That would be enough to hire 327,000 new schoolteachers.12
One concern about abolition is that criminals would not receive the punishment they deserve. When people have caused harm, the community has a right to expect accountability and that steps will be taken to prevent any more harm. But those goals are not necessarily tied to prison. Indeed in some ways prison is counterproductive to their achievement.
Common Justice is a Brooklyn-based program that diverts people charged with violent crime from prison to an intense treatment program that includes making amends with victims. In order for a defendant to participate in Common Justice, his or her victim has to consent. Ninety percent of victims do consent, not because they feel compassionate toward the people who have harmed them but because people who live in tough Brooklyn neighborhoods most desire safety and justice, and they understand that prison rarely delivers those. Participants in Common Justice are forced to acknowledge the harm that they have caused and to make amends to the people they hurt. It’s agonizing; sometimes people in the middle of treatment say that being locked up would have been easier. And it works better: people who successfully complete the program are much less likely to pick up another charge than people who have been incarcerated.
Common Justice was founded by Danielle Sered, a white woman who grew up in Chicago during the 1990s.13 Sered committed crimes and ended up, at fifteen years old, arrested for grand auto theft. The judge sentenced her to six months on probation. Her accomplice, who was a black man, got six years in prison. That experience taught Sered that white privilege itself brings a sort of prison abolition. White people don’t get locked up, or get less time, for the same conduct that sends black people to prison. When we wonder what would be the effect if most people who break the law were not locked up, we can look at white folks as an example of a community where that is already the case.
Another kind of abolition is selected by more than half of all victims of violent crime. They choose not to call the police.14 What this means is that for most people who survive violence, doing nothing is a preferable option to involving the state. This choice starts to make sense when you consider the fact that 60 percent of people who have done time end up returning to prison within eighteen months of their release.15 The Chokehold has so distorted our sense of reality that the high rate of recidivism of people who have been incarcerated is used to justify even more incarceration. Some people don’t understand that it is really the system that has failed to rehabilitate or provide meaningful opportunities for people coming home from prison. Instead they blame the recently released inmate for not learning whatever lesson the system was ill equipped to teach him in the first place. So judges usually sentence defendants who have been locked up previously to even more time for a new offense. Danielle Sered jokes that this is like taking your car to a repair shop where the mechanic not only fails to fix your car but actually makes it worse, and then charges you even more to repair the additional damage that he has caused.
ONE CELL AT A TIME: THREE ACTIONS TOWARD ABOLITION
As a practical matter, almost nobody, including me, would be prepared today to release every incarcerated person. The legal scholar Allegra McLeod, one of the most important abolition theorists, writes that it should be understood not as “an immediate and indiscriminate opening of prison doors” but rather “a gradual project of decarceration, in which radically different legal and institutional regulatory forms supplant criminal law enforcement.”16
Here are three suggestions for things activists could advocate for right now that would start the move toward decarceration to abolition. First, the maximum punishment for every criminal offense in the United States should be reduced to twenty-one years in prison.17 This is already the law in Norway for any offense other than war crimes and genocide. Sentencing in the United States is much longer than it needs to be for any reasonable purpose. One in nine prisoners is serving a life sentence. In state prisons, another 10 percent of inmates are serving sentences longer than twenty years.18 For every crime, the United States locks people up longer than most other countries. For example, American sentences for burglary are from two to four times longer than in England.19 In 2010, approximately 125,000 people jailed in the United States were age fifty-five or older.20 U.S. inmates are incarcerated for so long that
many prisons operate assisted living facilities for elderly inmates. This is not only very expensive for taxpayers, it is wasteful spending as well. We know that prisoners who are older than fifty are extremely unlikely to commit another crime if they are released.21
Second, we should reduce the number of offenses you can be sent to prison for, beginning with decriminalizing low-level offenses. Every year about 10 million people get locked up for misdemeanors.22 These are offenses like driving with a suspended license, drug possession, minor assault, vandalism, and shoplifting. Decriminalization is a way of ratcheting down the police super power to arrest. Instead the police would give you a ticket, like they do now for most traffic offenses. The reader may recall that many of the arrest warrants that were issued in Ferguson, Missouri, were for failure to pay fines. To avoid this scenario, lawmakers should restrict the police from any arrests related to failure to pay a fine or show up in court in response to a citation. Otherwise, decriminalization would not be so different from criminalization.23 Cyrus Vance, the district attorney of Manhattan, took a step in the right direction, ending arrests in cases for minor offenses such as taking two seats on the subway, public urination, or walking down the street with an open container of liquor.24 But we need to go much further, by not allowing anyone to be jailed for any crime that is currently punished with less than one year in prison.
When fines are imposed, they should be based on income. Rich people should have to pay more and poor people less. “Day fines” is the legal term for penalties that are based on a percentage of a person’s actual income. So, for example, a millionaire might have to pay $10,000 for a misdemeanor offense, someone who makes $100,000 a year would pay $1,000, and someone who makes $10,000 would pay $100—all for the same offense. This would be a more fair and equitable way of punishing people than requiring everyone to pay the same amount, no matter how rich or poor they are. Some European nations have limited incarceration in part by relying more on fines as a form of punishment. Their experience has been that having to pay money works better than incarceration to prevent many kinds of crime.25
The third action is likely to be the most controversial. We should stop spending so much money on the police and instead invest those funds in community health care. Almost 80 percent of people in prison suffer from either addiction or mental illness.26 It’s commonplace to say that prisons are now the largest mental health providers in the country, but “warehouses” would be more descriptive. Correctional facilities are simply not equipped to treat the mental health and substance abuse issues that most incarcerated folks have. That may be one reason why the leading cause of death in prison is suicide—in 2013, for example, 34 percent of all deaths in prison were the result of inmates killing themselves.27 Imagine if the $16 billion authorized in the Crime Bill of 1994 for prison construction and hiring police had gone instead to providing mental health services.
If cities were required to reduce the size of their police forces, what would happen to public safety? Probably not much. Remember that the vast majority of arrests are for low-level misdemeanor offenses. If we decriminalize these offenses, we reduce much of the work that police do now. The truth is that the police do not prevent or solve most crime.28 If you tell them that your smartphone was stolen or your purse snatched, it is extremely unlikely that the cops are going to get it back. In the experience of many citizens, they don’t even try. Studies demonstrate that a visible police presence might prevent some property crimes but does not make much of a difference at stopping violent crime.29 Violent crime has gone down dramatically in recent years. But cops should not get credit for that good news, considering that it has fallen not just all over the country, where many different styles of policing are used, but indeed all over the Western world.30
Still some people cling to the belief that when trouble arises it’s best to dial 911. The reality is that in moments of extreme trauma and stress, calling a person with a gun and the power to arrest often makes things worse, not better. Vulnerable groups all over the United States, including survivors of domestic abuse and transgendered people, are now engaged in projects creating alternatives to policing for keeping safe, including neighborhood patrols and having trained and respected members of the community intervene in times of crisis.31
Putting some of the billions of dollars that we spend on policing into health care, education, and job training would not only be a major step toward abolition, it could yield immediate tangible benefits to African American men, who would have fewer of the Chokehold’s enforcers to contend with. As we have seen, the police are no friend to the black man. This is true in part because many officers have what President Obama’s Task Force on 21st Century Policing described as a “warrior” mind-set. This is not just a figure of speech. Obama used his executive power to limit a program that allowed military surplus weapons to be provided to local police departments. He banned the Pentagon from giving cops grenade launchers, militarized aircraft, and bayonets. But departments could still receive other material, like armored tanks, intended to be used against foreign enemies.
Obama’s policing commission recommended police officers think of themselves as “guardians” rather than warriors. Even as the number of officers is significantly reduced, there are two qualifications that should have special significance when new officers are hired, because they are associated with more peaceful officers. First, police departments should be at least 50 percent female. Now approximately 88 percent of officers are male.32 Research indicates that female cops are more likely to de-escalate conflict and less likely to shoot.33 The Washington Post reported that, from 2006 to 2016, of the fifty-four officers prosecuted for unlawful shootings, only two were women.34 Studies done in Denver, Indianapolis, Washington, D.C., and Kansas City demonstrate that female officers are significantly less likely to be the subject of excessive force complaints.35
The other important qualification for officers is a college degree. Cops with more education are less likely to use force and are better at problem solving.36 A frequently cited study by Jayson Rydberg and William Terrill of Michigan State University found other advantages to a college education, including that more educated cops exhibit better acceptance of minorities and are less likely to be involved in unethical behavior. By this point in the book, the reader may be so familiar with the perverse consequences of the Chokehold that she thinks no fact about how twisted the U.S. criminal process is would surprise her. But here is one, related to intellectual qualifications for being a cop, that still might. Did you know that you can be rejected from being a police officer because you are too smart? The Wonderlic Cognitive Ability Test is used by many police departments throughout the country to assess the learning and problem solving abilities of applicants. The highest score you can get is 50, and most cops score between 20 and 27. Robert Jordan applied to the New London, Connecticut, police department and was turned down, because he received a 33 on the test. The police department rejected applicants who scored above a 27, because it felt they would not be happy being cops. Jordan sued, and the United States Court of Appeals for the Second Circuit affirmed the police department’s decision, stating that, “Even if unwise,” the upper limit on test scores “was a rational policy instituted to reduce job turnover and thereby lessen the economic cost involved in hiring and training police officers who do not remain long enough to justify the expense.”37
To get started on the path to abolition, we don’t have to have all the answers right now. The first two abolitions—of slavery and U.S. apartheid—took decades. What is needed right now is the resolve for transformation. The present system is cruel, racist, and unsustainable. Our vision must contain a robust view of freedom and democracy in which no African American man—indeed no human being—is locked in a cage. When we make that commitment, we—activists, scholars, faith leaders, workers—will build on existing models of providing safety and accountability in ways that best serve families and communities.
HOW TO GET WHAT WE NEED
: THEORIZING BLACK RESISTANCE
The movement for black lives started as a response to violence against African American men. Formations like Black Lives Matter and One Million Hoodies for Justice rose up in reaction to George Zimmerman’s killing of Trayvon Martin.38 Now the platforms of many of these organizations have broadened to include radical critiques of the government and, especially, of white supremacy.39 Some Black Lives Matter activists have championed liberal reforms like federal investigations of police departments and local or federal prosecutions of police officers.40 But this is not the best use of the time and creativity of activists. As I have demonstrated in chapter 6, that kind of liberal reform does not address the central problems the movement for black lives has articulated; indeed in some ways liberal reforms exacerbate the problems.
Activists need to decide how much of their focus should be on improving the criminal justice system versus ending white supremacy. The political scientist Marie Gottschalk has documented how other countries have reduced prison populations without addressing the root causes of crime.41 The movement for black lives might be able to accomplish short-term fixes in which the police are less brutal and fewer people get locked up. But that’s not good enough.
In order for transformation to occur, the movement must look far beyond the police. Until we address the larger structural issues, racial subordination will just reproduce itself, as it has now evolved from slavery to segregation to mass incarceration.
This does not mean, however, that work on criminal justice reform does not have a place in the movement. Civil rights strategies like suing police departments are useful for getting ordinary people “woke,” when they see how bad things really are and how resistant the system is to change. Fighting the good fight—even for small goals—is empowering. There are psychic benefits that inspire the community mobilization that is likely necessary for the radical activists to achieve their goals. The historian Michael Klarman has observed, “Not only did the civil rights movement have to overcome black hopelessness and fearfulness, but sometimes it was necessary as well to undo the psychological damage that the ideology of white supremacy had inflicted on those blacks who had internalized its lessons.”42 My suggestion, then, is not that people in the movement for black lives give up on criminal justice reforms; rather, activists should have a coherent perspective on what old-school liberals can and cannot do in terms of achieving the movement’s ultimate goals.