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Teaching Penal Abolition


Amna Akbar (@orangebegum) is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

In April, the New York Times ran a profile on abolitionist visionary and scholar Ruth Wilson Gilmore, and the Harvard Law Review published an entire issue on prison abolition. This fall, the University of Texas Law School Human Rights Center is hosting a conference on abolition. The new journalistic outlet The Appeal runs abolitionist pieces as a matter of course, and outlets like Rolling Stone, The Nation, and Jacobin have too. Podcasts like Chris Hayes’s Why Is This Happening, The Appeal’s Justice in America, and Beyond Prisons have featured probing conversations on abolition with leading organizer-intellectuals Rachel Herzing and Mariame Kaba. And behind it all is a growing movement of abolitionist organizing and campaigns, calling to defund and delegitimize police and prisons, shift resources towards the social wage, and build alternative methods to dealing with the pains and crises of capitalism, white supremacy, and patriarchy that prisons and police now deflect and exacerbate: Critical Resistance, BYP100No New Jails Seattle, Mijente, Survived and Punished, INCITE, and more.  

Like the movements abolitionist ideas emerge from and are circulating in, abolitionist praxis is shaping the urgency and discourse around criminal law reform. A primary difference between abolitionists and mainstream reformers is the end goal: Abolitionists work toward eliminating prisons and police, and building an alternate and varied set of political, economic, and social arrangements or institutions to respond to many of the social ills to which prison and police now respond. Importantly, abolitionists see their struggle as part of the unfinished work of transforming  the afterlives of slavery in economic, political, and social life.

Abolitionist thinking is central to contemporary debates over how to interpret the meaning of the criminal law and our criminal processes and enforcement mechanisms: it is literally part of the subject of “criminal law” today. We should teach it that way. More broadly law scholars teaching any course touching on criminal law and procedure, police and prisons, borders and border enforcement, should teach abolition. I have written before, including with Jocelyn Simonson, about how to teach criminal law differently, in this movement moment, and attune to the centrality of racialized and anti-black violence to our criminal legal system. Here, I share some notes and resources on teaching abolition. In my experience, teaching abolition requires study, but the study and teaching are more fruitful than I can say in this brief post. Teaching and learning abolition has deepened my study of the history of the United States and the unfinished social movements that define its shape, expanded my imagination of the future, and profoundly reshaped my sense of the work ahead. 

I started teaching abolition a few years ago, in my first-year criminal law course and in my upper-level seminar on prisons, police, and borders. In crim, I teach abolition alongside the retributive and utilitarian theories of punishment. While retribution and utilitarianism aim to articulate theories of when punishment is justified, as I have argued elsewhere, they provide a woefully inadequate explanation of how and why of actually existing modes and scales of punishment. It feels indefensible to fail to provide students a more real account, or a thoroughgoing critique of incarceration and its antecedents, given the sheer number of people that we cage (2.3 million), put on probation (3.6 million) and parole (840,000), let alone those under some other form of carceral control or surveillance. Allegra McLeod’s Prison Abolition and Grounded Justice covers a lot of ground and can be excerpted in various ways to great use. McLeod effectively makes the case for a prison abolitionist ethic, as she centers the violence and dehumanization on which the carceral state depends, the long history of that state as a force for racial subordination, and the inefficacy of the state to produce the outcomes it purports to seek through prisons and policing. 

Teaching abolition early in the semester allows us to return to questions of the propriety of punishment, alongside possible justifications for it, throughout the semester. To give the students more depth on the realities and histories of punishment, I always assign a full-length book about criminal legal punishment (Just Mercy works extraordinarily well, in part because it makes the connections to enslavement and lynching), and require students to spend a morning at the downtown criminal courthouse during arraignments.  The courthouse trip provides many students their first exposure to the criminal system in action. I send them on their own, rather than embedded with lawyers or judges, who will undoubtedly frame what the students are seeing in the language of insiders.  I want the students to see criminal court as outsiders, rather than acculturated insiders.  When I can, I organize a tour of a local jail or prison. Witnessing the warden point to solitary confinement as the mode for dealing with mental health crises suffered by incarcerated people teaches students the insufficiency and brutality of carceral responses to so many social crises. The supplementary materials give students context for how these institutions actually function, and an opportunity to self-assess how the system targets poor black and brown people.  

In my seminar, I teach abolition alongside critiques of prisons and police, and social movement contestations of the carceral state. For sources, in both classes, I have drawn on works by Angela Davis and Allegra McLeod, as well as policy reports and platforms by organizations like Mijente, the Movement for Black Lives, and BYP100. (Once, I assigned my own work, charting the distinct approach the Vision for Black Lives models for police reform as compared to the DOJ’s Ferguson and Baltimore reports.) 

We have had tremendous debates about reform versus abolition, and these debates feed into other important conversations, like the question of the utility of the right to counsel, as teed up by Paul Butler and Stephen Bright’s debate. Last year, we had a heated debate about the utility of advocating for a right to counsel in deportation proceedings. Would it simply bureaucratize and then expand the scale of the already massive deportation machinery in place?  

Interestingly, my first-year students–not yet acculturated to law school conventions that depoliticize criminal law enforcement as a neutral policy choice for dealing with a wide swath of social problems–are much more receptive to the basic precept of abolition: that so many of the social problems we now respond to with prisons and police would be more meaningfully addressed in other ways. My second- and third-year students, on the other hand, have to work harder to recognize alternatives to our prevailing legal order. By these latter years, students are so accustomed to accepting existing precedents that they cannot see outside of the system before them, even when they witness its crushing effects and understand its racialized and classed devastation.  

I’m not sure the deeper radical potential of abolition gets across, or can, in a single course that touches on so many topics. After all it has taken me years to learn from abolitionist praxis, and my learning continues.  But planting the seed is important because abolitionist discourse is increasingly a part of conversations and campaigns about criminal law reform, and because it offers a scale of vision that matches a structural critique.  Teaching abolition opens up more space for conversation about how and who we punish, and introduces an important skepticism about what criminal law, prisons, and police do, and how what they do departs from how these systems represent themselves. Putting abolition into the mix gives students tools for thinking about the fundamental problems with the criminal legal system, and provides meaningful ways to think about different modes of organizing collective life.

I’ll be teaching abolition again this fall, both in crim and my seminar, and I invite you to join me, whether you are teaching criminal law or either semester of criminal procedure, immigration law, family and poverty law, civil rights litigation, critical race theory and more. Here are some sources you might turn to get yourself up to speed, and to assign to students.  I’m looking forward to adding some of the above-linked podcasts into this year’s assignments.