Slavery has been fruitful in giving itself names . . . and you and I and all of us had better wait and see what new form this old monster will assume, in what new skin this old snake will come forth next.
— Frederick Douglass1
You have to act as if it were possible to radically transform the world. And you have to do it all the time.
— Angela Y. Davis2
Introduction
In 1997, Curtis Flowers was charged with murdering four employees of the Tardy Furniture store in the small Mississippi town of Winona.3 Flowers is black.4 Three of the victims, including the store’s owner, Bertha Tardy, were white, and one was black.5 Flowers was tried for capital murder six times by the same white prosecutor, Doug Evans.6 More than two decades after Flowers was first sentenced to death, his case reached the U.S. Supreme Court on one issue: whether Evans’s jury selection tactics in the sixth trial violated Flowers’s Fourteenth Amendment rights.7 By that point, the prosecutor’s scheme for getting a capital conviction of a black man was crystal clear: Evans “relentless[ly]” sought to try Flowers before an all-white jury.8 Over the course of six trials, Evans used peremptory challenges to strike forty-one of forty-two prospective black jurors.9
On June 21, 2019, the Court overturned Flowers’s conviction.10 In a 7-2 decision, written by Justice Kavanaugh,11 the Court held that the prosecutor’s blatant pattern of racial discrimination was so “extraordinary” that it violated the Equal Protection Clause of the Fourteenth Amendment.12 In dissent, Justice Thomas, who excused Evans’s strikes of black jurors as “race-neutral,”13 found solace in one aspect of the majority’s decision: “The State is perfectly free to convict Curtis Flowers again.”14 Flowers remains incarcerated; upon his release from death row, he will be taken into local custody again, awaiting a decision from the State regarding the possibility of a seventh trial.15
As Flowers v. Mississippi16 indicates, criminal procedure and punishment in the United States still function to maintain forms of racial subordination that originated in the institution of slavery — despite the dominant constitutional narrative that those forms of subordination were abolished. Key aspects of carceral law enforcement — police, prisons, and the death penalty — can be traced back to slavery and the white supremacist regime that replaced slavery after white terror nullified Reconstruction. Criminal punishment has been instrumental in reinstating the subjugated status of black people and preserving a racial capitalist power structure.
Many individuals have therefore concluded that the answer to persistent injustice in criminal law enforcement is not reform; it is prison abolition.17 Incarcerated people have rebelled against prisons through spontaneous uprisings, organized protests, and legal claims since the 1960s.18 Some activists mark the launch of the current prison abolition movement as occurring at an international conference and strategy session, Critical Resistance: Beyond the Prison Industrial Complex, held at the University of California, Berkeley, in September 1998.19 Formed in 1997, the Critical Resistance organizing collective gathered more than 3500 activists, former prisoners, lawyers, and scholars over three days “to address the alarming growth of the prison system, popularize the idea of the ‘prison industrial complex’ (PIC), and make ‘abolition’ a practical theory of change.”20 Critical Resistance founders developed the concept of the “prison industrial complex” to name the expanding apparatus of surveillance, policing, and incarceration the state increasingly 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.21 Along with Critical Resistance, which is now a national chapter-based organization working with various grassroots campaigns, a nationwide network of activists is organizing to abolish the prison industrial complex and to build a society that has no need for prisons.22
It is hard to pin down what prison abolition means. Activists engaged in the movement have resisted “closed definitions of prison abolitionism”23 and have instead suggested a variety of terms to capture what prison abolitionists think and do — abolition is “a form of consciousness,”24 “a theory of change,”25 “a long-term political vision,”26 and “a spiritual journey.”27 Professor Dylan Rodríguez, a founding member of Critical Resistance,28 lyrically describes abolition as “a practice, an analytical method, a present-tense visioning, an infrastructure in the making, a creative project, a performance, a counterwar, an ideological struggle, a pedagogy and curriculum, an alleged impossibility that is furtively present.”29 Moreover, movements that refer to themselves as abolitionist are working to dismantle a wide range of systems, institutions, and practices beyond criminal punishment (such as “the wage system, animal and earth exploitation, [and] racialized, gendered, and sexualized violence”)30 and forms of oppression beyond white supremacy (such as “patriarchy, capitalism, heteronormativity, ableism, colonialism,” imperialism, and militarism).31 While I recognize that all of these oppressive systems and the movements for their eradication are interconnected,32 this Foreword will focus specifically on the movement to abolish the prison industrial complex, conceived of as rooted in chattel slavery in the United States, as a starting point to examine the potential for a new abolition constitutionalism.
For purposes of my analysis, I find especially useful three central tenets that are common to formulations of abolitionist philosophy. First, today’s carceral punishment system can be traced back to slavery and the racial capitalist regime it relied on and sustained.33 Second, the expanding criminal punishment system functions to oppress black people and other politically marginalized groups in order to maintain a racial capitalist regime.34 Third, we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems.35 These tenets lead to the conclusion that the only way to transform our society from a slavery-based one to a free one is to abolish the prison industrial complex.
To date, there has been no sustained analysis of the relationship between the prison abolition movement and the U.S. Constitution. Prison abolition activists and scholars rarely seek support for their claims in constitutional law.36 Nor have they included an abolitionist interpretation of the Constitution in their vision of a transformed society without prisons. Some not only have eschewed constitutional law as a means to achieve prison abolition but also have argued that constitutional law serves to facilitate and legitimate state violence against black and other marginalized people.37 This oppositional approach to the Constitution is understandable given that so much of the Supreme Court’s constitutional jurisprudence since its inception in the slavery era has been anti-abolitionist.38 Yet the Constitution was interpreted by past freedom activists as an abolitionist document: many antislavery activists viewed the Constitution as a foundation for their arguments and for developing an alternative reading that called for freedom and democracy. Even after the Civil War, a Radical Republican Congress amended the text explicitly to end slavery and extend citizenship to black people based on the ideas and advocacy of an abolitionist movement.39 At the same time, the Reconstruction Amendments contained compromises that blocked their potential for dismantling the racial capitalist structure.40 By 1900, a campaign of white supremacist terror, laws, and policies had effectively nullified the Amendments and replaced abolition with Jim Crow as the constitutional regime.41
Engaging the relationship between past abolition constitutionalism and the current prison abolition movement raises a number of provocative questions. Can legal scholars help to revive the abolitionist values in the Reconstruction Constitution to support contemporary abolitionist claims? Can prison abolitionists strategically use an abolitionist reading of the Constitution to defend their radical vision and implement steps toward achieving it? Might prison abolitionists craft a new abolition constitutionalism that serves as a charter for a society without prisons?
In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. Although there are many grounds for prison abolition and many venues for abolitionist advocacy, my purpose here is to examine prison abolitionist theory and organizing as it relates to the U.S. Constitution in particular. There are two paths this interrogation might take. One uses prison abolition theory to evaluate the Constitution’s provisions and the jurisprudence that has interpreted them in order to rebuke their failure to abolish slavery-like systems and install a democratic society. The other goes further to propose a constitutional paradigm that supports prison abolitionists’ goals, strategies, and vision. The first path is resigned to the futility of employing U.S. constitutional law to dismantle the prison industrial complex and other aspects of the carceral state. The second path finds utility in applying the abolitionist history and logic of the Reconstruction Amendments to today’s political conditions in the service of prison abolition.
I believe both approaches are worthy of consideration, and considering both is essential to developing a theoretically and pragmatically useful legal framework to advance prison abolition. Neither is based on a naïve faith in U.S. law or the judges who apply it to radically change carceral society. Indeed, it is the realization that white supremacy is deeply woven into the fabric of every legal institution in the United States and upheld by U.S. constitutional law that made me an abolitionist in the first place. The tension between recognizing the relentless antiblack violence of constitutional doctrine, on one hand, and demanding the legal recognition of black people’s freedom and equal citizenship, on the other, animates this Foreword as it has long animated abolitionist debates on the U.S. Constitution.42 Despite my disgust with the perpetual defense of oppression in the name of constitutional principles, I am inspired by the possibility of an abolition constitutionalism emerging from the struggle to demolish prisons and create a society where they are obsolete.
This Foreword analyzes the potential for a new abolition constitutionalism as follows. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation”43 sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an abolitionist document. I interrogate the historic abolition constitutionalism by examining antebellum abolitionists’ readings of the Constitution and their partial incorporation into the Reconstruction Amendments, as well as the Supreme Court’s jurisprudence obstructing the Amendments’ transformative potential. I pay close attention to the Supreme Court’s most recent decision interpreting the relationship between the Fourteenth Amendment and carceral punishment — Flowers v. Mississippi — to analyze the Justices’ rejection of an abolitionist approach in their ruling.
Finally, Part III links Parts I and II by exploring the relationship between prison abolition and the U.S. Constitution. I argue that, despite the ascendance of proslavery and anti-abolition constitutionalism, we should consider the abolitionist history of the Reconstruction Amendments as a usable past to help move toward a radical future. I hope to show that the prison abolition movement can reinvigorate abolition constitutionalism. In turn, today’s activists can deploy the Reconstruction Amendments instrumentally to further their aims and, in the process, construct a new abolition constitutionalism on the path to building a society without prisons.
* George A. Weiss University Professor of Law and Sociology, University of Pennsylvania; Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, University of Pennsylvania Law School; Professor of Africana Studies and Professor of Sociology, University of Pennsylvania School of Arts & Sciences. The author thanks Mitchell Berman, Maggie Blackhawk, Jean Galbraith, Paul Heaton, Seth Kreimer, Serena Mayeri, Donald Moore, Shaun Ossei-Owusu, James Pope, Andrea Ritchie, and Tobias Wolff for helpful comments on an earlier draft of this Foreword. The author is indebted to University of Pennsylvania Law School students Madison Gray, Bridget Lavender, Anthony Sacco, and James Thompson for outstanding and dedicated research assistance, to Timothy Von Dulm and the Biddle Law Library staff for excellent research services, and to the editors of the Harvard Law Review. for rigorous editorial support.