This post concludes a symposium on non-reformist reforms. Read the rest of the posts here.
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One common myth about legal progress is that the sheer force of good, persuasive arguments creates positive change. The best arguments carry the day, or so we are told by films and folk histories. But organizers constantly remind me otherwise. The how is just as important than the what. While we should not fetishize tactics, neither should we ignore how demands are made, on behalf of whom, and what other demands they accompany. The same demand that inspires little confidence as part of one broader political vision can, as part of another, transform how people relate to each other and their government. Something anodyne in one context can be electric in another.
The heuristic of non-reformist reform, which Amna Akbar has helped introduce to a new generation of lawyers, can help us discern when the alchemy of demands, tactics and strategies can deliver real change and when it is more likely to entrench the status quo. To see how this works in practice, in this brief post, I want to focus on how to think about demands for transparency through the framework of non-reformist reform.
Transparency is, in one sense, the most vanilla of demands. When I used to write human rights reports, after offering a long recitation of unforgiveable abuses perpetuated by the government under scrutiny, I would inevitably ask that the same government be more forthcoming with information. It is less controversial to ask a government for access to information about its policies than to make specific changes to its policies. Nothing surprising here. Scholars and advocates have long noted the bias towards procedural values over substantive rights. Proponents of transparency justify this bias by explaining that when a government conducts itself in the open, it is less likely to break the law. Advocates of transparency often quote Louis Brandeis’ observation that “sunlight is the best disinfectant” (though Brandeis was referring to the importance of publicity to expose the concentration of wealth). Constitutional law too embraces this logic. The few rights the constitution explicitly enumerates are those triggered by an arrest and prosecution, and the Supreme Court’s Sixth Amendment jurisprudence underscores the importance of public and open trials to guarantee constitutional compliance.
How do prison abolitionist organizers approach demands for transparency and accessibility in their work? Criminal courtrooms are dingy, dark, and cryptic spaces. Their rhythms orchestrated by arcane and unwritten rules. Deciphering what happens in courts is necessary for anyone trying to challenge criminalization. But there a range of ways to demand that courtrooms be accessible, physically and figuratively.
Notoriously, one of the most inscrutable points in the criminal process is the grand jury proceeding, which prosecutors conduct behind closed doors. Two reasons are offered for this practice: to safeguard’s ongoing investigations and to protect those wrongly suspected. And while grand jurors are supposed to be a check on the prosecutor’s power, they mostly function as a rubber stamp. In some jurisdictions, court reporters transcribe everything in the grand jury. In other jurisdictions, like Georgia, the law does not require a stenographer. The absence of any written record stifles defendants’ rights. Without a transcript, it is impossible to know if the witness has changed their story, which hinders meaningful cross examination. It’s also impossible to know if the prosecutor did anything shady during the proceedings. Information about a prosecutor’s conduct is a pre-requisite for any campaign to challenge a charge or conviction.
How far should organizers go in insisting on recording and access to those proceedings? A campaign that pushes for more court reporters in grand juries, or even for a rule requiring stenographers, would not likely satisfy the standard criteria of non-reformist reform, as both would require investments in criminal courts, strengthening one of the very institutions that abolitionists aim to render redundant and obsolete.
But we must be careful about being too dogmatic in our application of the concept. The boundary between reformist and non-reformist reform depends, in part, on our broader vision of change, a point brought home by recent struggles for disability justice. HEARD, a group that fights for deaf and disabled people who are facing criminalization, advocates to make courtrooms accessible with interpreters and other accommodations to make sure disabled defendants can make sense of the proceedings against them. And yet, HEARD is committed to abolition—thus, making jails perfectly accessible is not the goal. An accessible courtroom does not promise emancipation. Rather, accessibility is simply a means to an end to sustain organizing from the inside and out. HEARD recently won an FCC rule change that requires telecommunication companies to guarantee access to videocalls for people who are incarcerated. Surviving and communicating are a pre-requisite for resisting, and for building collective power among disabled incarcerated people.
The point here is not, as Jamelia Morgan observes, that pursuing non-reformist reforms can sometimes conflict with our duties to mitigate harm in the here and now. Rather, it is that what even counts as a non-reformist reform will depend on the underlying vision of social change. While depriving carceral institutions of additional investment is a core tenant of prison abolition, as the above case suggests, in certain circumstances, such investments may be necessary to enable abolitionists to effectively resist these institutions.
Nevertheless, as the abolitionist Rachel Foran underscores in her work advising court watching programs across the country, transparency is not enough. When she and I started a court watching program in NYC, we thought placing volunteer monitors in criminal proceedings was worthwhile for three reasons: first, we expected that that the mere presence of people in the audience would shift courtroom actors’ practices in real time; second, we hoped that that court watchers would become radicalized through observation and come to support de-carceral reforms; third, we expected that, over time, court actors would shift their practices and mindset, knowing they were being watched regularly.
What we discovered, however, was that court actors also became accustomed to watchers. Watchers themselves tired of watching without a specific campaign to collect court data. But the act of observing politicized them, undoubtedly. As Jocelyn Simonson has argued, the power of court watching lies in its capacity to disrupt. In the long term, court watching organizations must perpetually reinvigorate their base, tactics and demands if they want to remain in tension with the actors they monitor, in order to avoid becoming a cog in the machine.
The pandemic brought this dilemma to a head. Many court watching groups struggled to figure out whether they should demand remote proceedings. Yes, video streaming makes courtrooms more accessible, but they also result in poorer outcomes for defendants. They naturalize courts’ omnipresence. Courtroom actors become desensitized to the human impact of their decisions when they conduct proceedings remotely. Transparency cuts both ways.
When I talk to law students about non-reformist reforms, I often get some version of this question: can’t we do both? Can’t we make courtrooms more fair, more accessible, and more transparent now, but also dismantle them in the future? In response, I underscore that we have limited time and energy. Non-reformist reform analysis forces discipline and priorities. If making courtrooms accessible to deaf defendants is necessary to dismantling them, because it builds new understanding and forms new constituents to challenge criminalization, there is a good argument such a campaign is non-reformist. But if the goal is to make courtrooms accessible for their own sake, this might betray a view that the problem with criminal court process is that it is inscrutable. Abolitionists would say that this diagnosis confuses symptom with cause. That courtrooms are opaque and inaccessible reflect their deeper pathologies.
Amna Akbar’s body of work, in uplifting the work of social movements and revitalizing longer traditions of left thinking, gives us a language to think about law and society in motion. The heuristic of non-reformist reform can help avoid ultra-leftism and create the possibilities for coalition, such as across groups who care about transparency. It can help us salvage the transformative potential of demands that seem to have lost their teeth. But to realize these ends without falling back into reformist pieties, the framework demands rigorous, context-specific thinking that eschews dogmatism.
