John O. McGinnis
Defund the Police has become a political slogan of the left in cities across the country. But that mantra is a little timid compared to a new slogan that is taking hold among law professors: Abolish Prisons. This program is now regularly and seriously pressed in the academy’s most important law reviews. It is the subject of earnest discussion at conferences and faculty workshops across the nation. There is now a cottage industry of tenured professors who write about its nuances and more no doubt will soon secure tenure for doing so.
Its prominence and the arguments deployed its favor show the willingness of the legal academy and the intellectual class in general to tolerate foolish arguments so long as they conform to current fashions on the left. Rather than build a framework for incremental reform based on empirical evidence, such legal academics are now paid to engage in utopian—even nihilistic–rhetoric. It might be thought that these kinds of ideas—from abolishing prisons to defunding the police to eliminating standardized tests—mark a return to the radicalism of the 1960s.
But then the radicalism came from students against the establishment. Here the radicalism comes from the educational establishment itself. The better historical analogy is to nineteenth-century Russia. There the intelligentsia contained substantial radical elements, offering not to reform but to destroy the institutions of its society. Fyodor Dostoevsky memorably captured their perfervid meanderings in his great novel, The Possessed.
It is important to understand what prison abolitionism is not about to appreciate the significance of this becoming a serious topic in the law school world. Prison abolition does not argue for making prisons more humane. It does not suggest that they should become more effectively rehabilitative, returning people to a productive place in society. It does not argue for decreasing the prison population by further reducing the number of people imprisoned for non-violent crimes or for releasing prisoners as they age out of the likelihood of committing further crimes. These kind of incremental reforms may well be plausible schemes for social improvement, but they are anathema to many prison abolitionists. Such reforms represent the kind of cost-benefit analysis within the framework of the status quo that is wholly opposed to the spirit of destroying institutions.
Abolitionism: The Basic Argument
The basic argument for prison abolition depends on the view that society is comprehensively unjust. Criminals are much victims as are the victims of their crimes. Dorothy Roberts, a professor at the University of Pennsylvania, summarized the arguments in a sympathetic Harvard Law Review Supreme Court Foreword (the most prominent single yearly essay in legal academics) that encapsulates this perspective: “Incarceration is what the state employs to solve problems caused by social inequality, stifle political resistance by oppressed communities, and serve the interests of corporations that profit from prisons and police forces.”
These claims would be embarrassing, even if they were not published in the Harvard Law Review. The idea that carjackers and robbers are making a statement about political oppression is fatuous. Nor it is plausible that the bad environments are the sole cause of criminality, providing a get-of-jail-free excuse for all criminals. Prisons are used to incarcerate people in nations with widely various levels of economic and social inequality. Most poor people never commit crimes. It would be wonderful if we knew what set of social reforms would end serious crime—a phenomenon that has been a problem for all of human history. But we don’t, and abolishing prisons without such magical knowledge is a recipe for mayhem.
Blaming corporations is silly. Prisons were around before the rise of corporations and even with the rise of privatization are still generally run by the governments, not corporations. And of course, the primary victims of people in prison are in the very class of people that the abolitionists claim to be oppressed.
Another fashionable argument for abolition is that prisons are an extension of Jim Crow, because those in prison are disproportionately Black. Again this argument has no merit as one for abolition. Prisons are a feature of nations without our racial history. That shows their existence cannot be explained by this variable alone. The disproportion of different races (and sexes) reflects the fact that different population groups commit crimes at the different rates. If drug or other laws unfairly snare minority groups, that problem offers an argument for reform or abolition of drug and other laws, not an argument for abolishing prisons.
The Problem of the Dangerous Few
Of course, it does not take an intellectual to spot one glaring problem with prison abolition. As with the emperor wearing no clothes, even a child could do it. Some people in prison are very dangerous. They are there for killing, maiming, raping, or robbing people. If let out, many are likely to threaten us with more of the same. In the prison abolition literature that is called the “the problem of the dangerous few.” Note that this framing of the problem literature assumes without any evidence that there are only a few such people and that, if prisons were abolished, the numbers of the dangerous would not become much larger, because our principal method of deterrence would disappear.
Some prison abolitionists simply reject the problem of the dangerous few. They complain that this notion does not recognize that prison abolition is part of a larger social program, one where changes in the education and health care system would make prisons unnecessary. Prison abolition is just a part of a program for social change.
This answer underscores the utopian nature of the prison abolition movement. No serious body of work in psychiatry suggests that sociopaths can be reformed by better health systems. Even people who are not sociopaths can develop habits of living that make them an enduring danger to others. The degree of state intervention to prevent the choices that lead to such conditions would make totalitarian societies seem only mildly intrusive on liberty by comparison. Making society a prison in the manner of Clockwork Orange hardly seems a good trade for abolishing actual prisons.
The most recent contribution to the prison abolition literature, also published in the Harvard Law Review by Thomas Frampton, a professor at the University of Virginia, is devoted to answering more directly the problems of “the dangerous few.” But the arguments are so weak that they would persuade no one who was not already an abolitionist. First, the article observes that there have been lots of dangerous people, like Jack Kevorkian, who are not incarcerated, because the laws do not reach them. It is undoubtedly the case that some of our laws let people to get away with dangerous conduct, although it is sometimes difficult to see how they could be reformed without endangering beneficial freedoms, including economic productivity. But addressing this legal problem is orthogonal to the question of whether we should punish people for murder, assault, rape, and robbery, laws which are clear enough and on which there is a broad social consensus.
Another argument is that the existing justice system is faulty, because we sometimes convict the innocent. That is an argument for improving our trial system, but hardly for abolishing prisons unless it can be shown—and it is not—that a significant portion of people in prison are innocent—so significant that abolishing prisons would not result in more harm.
Third—and this may be the weakest argument of all—Frampton notes that the dangerous few harm others even when in prison. This is undoubtedly the case, but the problem of prison violence just points up how dangerous such people are—that even when restrained they find ways to harm others. Think of what they are likely to do when they are outside prison and have less restraint and more scope for violence.
I would also observe that failing to create a system that provides what ordinary people regard as justice, rather than what law professors conceptualize in their articles, will itself lead to more violence. If people who have committed serious crimes are left to roam around with little if any sanction, others, particularly family members, will take justice into their own hands. Indeed, a central purpose of state authorized punishment is to salve that sense of wrong and so prevent the blood feuds that in more primitive societies have led to waves of killing over generations.
Reflecting on this central step in the evolution of civilization shows why the author’s fourth argument—that we do not catch all criminal law violators—also does not support prison abolition. If the government had a policy of not substantially punishing the many people we do catch, more violence and indeed social dissolution, will be the consequence.
The State of the Academy
What defines the academy, legal and otherwise, is the conversation among scholars—what ideas are taken seriously and what are not in publications and presentations. Left-wing ideas have always flourished in academia, often dominating the conversation. The Harvard Law Review does not publish articles about conservative or libertarian utopias (or dystopias), like Catholic integralism or libertarian seasteading.
The prevalence of leftist ideas in the academy is predictable, because as Thomas Sowell has observed: “The most fundamental fact about the ideas of the political left is that they do not work. Therefore we should not be surprised to find the left concentrated in institutions where ideas do not have to work in order to survive.” But it is only recently that ideas that are absurd both on their face and on reflection have become an important part of the conversation. And the academics who get status and tenure from the ideas will hire people like themselves who can replicate more of them. The result will be greater alienation from the public, who will regard the legal academy more than ever as a bastion of folly.
If there is any silver lining to the decline of the legal academy it is that these ideas are political poison. Defund the police is already the recruiting call for moderates to vote right. The mantra of abolishing prisons, if it caught on with political activists, would assure a conservative landslide.