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The Academy and the (Undoing of) the Carceral State


Presidential Assistant Professor of Law University of Pennsylvania Carey Law School & 2021 New America National Fellow

Jocelyn Simonson (@j_simonson) is Professor at Brooklyn Law School.

This post is part of our ongoing Transforming a Broken System Symposium. Click here to read all posts in our series, including the introductory post.

Protests this spring and summer presented activists with a doubly cruel irony: demonstrators risked their lives to save their lives. Political protests are no lovefest and often come with grave risks to life and liberty. These protests witnessed people weather a global pandemic to demand defunding of police and a fundamental reordering of the state’s priorities. Protesters endured, and continue to endure, tear gas, batons, rubber bullets, and other forms of police violence. The carceral state put them in handcuffs, police cars, holding cells, and jails—all at a time when COVID is devastating our correctional system and when any kind of detention can easily mean death.

The tail end of the summer and the beginning of the fall have exposed more of the criminal legal system’s contradictions. The non-prosecution of Breonna Taylor’s killers—a sharp contrast from the overzealous prosecution witnessed across the country for less lethal offenses—revealed our penal system’s warped notions of accountability. In many law school classrooms across the country, students and professors are wrestling with this non-prosecution, which will undoubtedly not be the last. We ourselves have witnessed anger, tears, and deep reflection as students grapple with the relationship between protest demands and the realities of the criminal legal system, wondering if that system can ever provide a satisfactory form of justice. In other classrooms, however, business is being conducted as usual—our students tell us that even in some Criminal Law classrooms, the non-indictment in Louisville was not mentioned at all; nor, for that matter, have their professors addressed the swell of protests against police violence.

Where, then, do we academics stand in relation to the life-or-death insurgency around us? Legal scholars with intellectual and symbolic authority to comment on the American penal state have sometimes responded with gestures of solidarity with protesters, ranging from tweets to collective statements. But they have more often responded with silence, or, worse, engaged in public discourse that coopts or side-tracks protesters’ core political messages of defund and reorder. The recent police killings of Ms. Taylor, George Floyd, Carlos Ingram Lopez, and countless others—along with a long history of state-sanctioned violence against Black, Indigenous, and Latinx people—require those of us labelled as experts to do more. We must engage in more than gestures of solidarity. We must account for our role in our current crisis.

Scholars and teachers must confront their role in perpetuating the status quo and facilitating mass incarceration. As Alice Ristroph has noted, the “law school to prison pipeline” produces pro-carceral lawyers that facilitate mass incarceration. Accordingly, law professors—particularly those who teach courses related to the criminal legal system—must do more than teach the blackletter law. That is not enough. We must situate this teaching within the larger history and current context of racialized policing, racial subjugation, and economic deprivation.

For all of these reasons, we came together with a letter to our colleagues this summer—fellow scholars of the law, law and society, prisons, and policing—to express our commitment to recognizing and remediating our role in this centuries-old crisis. Although the world has seen enough of open letters in recent months, we believed, and still believe, that this one is urgent and necessary, for ourselves as much as for the world. Many of the ideas that we write in this post were generated in long conversations with fellow academics struggling to name our role in building the carceral state, and our responsibility now to work to dismantle it in solidarity with social movements closest to the problem. More than 350 scholars joined us in signing this letter, which can be viewed here and signed here. Our hope with the letter was to create commitments to each other that begin to push back against the academy’s role in perpetuating the carceral state. We have begun with three central commitments.

The first is a commitment to confront anti-Black racism and white supremacy within law, policing, and the legal academy. This might sound simple, but it is the opposite of what scholars and teachers in institutions of higher learning have historically done; it will take active pedagogical reordering. The second is a commitment to disentangling ourselves from the prison industrial complex. This involves divesting ourselves and our labor from projects and events that uncritically support and legitimize police, border patrol, prisons, detention centers, and the surveillance of marginalized populations. And the third is a commitment to solidarity with abolitionist organizing and movements. This is both the hardest and the most important commitment, for we believe it is by looking to the ideas born within abolitionist organizing that we can see our best hope for building a more just society.

Our commitments are as legal scholars and teachers, but the lessons should apply more broadly to those who educate the public through various means: whether it is teachers, journalists, public intellectuals, or people who work at non-profits, think tanks, and foundations, it is not enough to say that Black Lives Matter. We must interrogate our own institutions’ roles in creating our current conditions, and we must work to repair the harm that we and our institutions have done.

The original authors of the letter of Legal Scholars in Solidarity, which now has more than 350 signatories, are Allegra McLeod, Amna Akbar, Chaz Arnett, India Thusi, Jamelia Morgan, Jocelyn Simonson, K-Sue Park, Monica Bell, Naomi Murakawa, Ngozi Ogidegbe, Nicole Smith Futrell, Priscilla Ocen, Sean Hill, & Shaun Ossei-Owusu.