For several years, I have been thinking about the rise of racial justice movements that account for political economy—specifically, those with anti-capitalist commitments. I am thinking of the Movement for Black Lives, and aspects of the immigrant justice movement. These social movements mark the revival of anti-capitalist racial justice politics in the United States in a way that we have not seen since the civil rights, Black power, and Chicano movements of the 1960s and 1970s. As these movements continue to organize in the face of growing global inequality and right-wing populism, they offer another way forward.
To illustrate the creative potential of studying radical social movements, consider the question of policing. The Movement for Black Lives is the leading example of a contemporary racial justice movement with an analysis of political economy and a vision to transform the state. In my forthcoming article, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. (forthcoming 2018), I consider policing through the lens of the Movement for Black Lives policy platform, “A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice.”
I compare the Movement’s analysis with the Department of Justice’s (DOJ) Ferguson and Baltimore reports. The Vision and DOJ reports offer alternate conceptualizations of the problem of policing and the appropriate approach to law reform. The comparison offers a study in the difference between an abolitionist approach to police reform, and a more traditional one.
Reflective of liberal law reform projects on police, the DOJ reports identify policing as a fundamental tool of law and order that serves the collective interests of society, and locate the problems of police in their failure to adhere to constitutional law. As a remedy, the DOJ reports advocate for investing more resources in police: more trainings, better supervision, community policing.
In contrast, the Vision identifies policing as a historical and violent force in Black communities underpinning a system of racial capitalism and limiting the possibilities of Black life. The rise of mass incarceration, overcriminalization, and zero-tolerance policing is seen as an evolution and extension of the regime of control and exploitation that began with slavery, convict leasing, the Black Codes, and segregation. These systems are read not simply through the lens of white supremacy, but through a commitment to extracting capital from Black labor: thus the racial capitalism frame. The history of criminal law as a method of control and suppression of Black life becomes, rather than an aberration, indicative of its character. Law is central to the shape and legitimation of racialized violence and inequality. Conversely, policing and surveillance become constitutive of what it means, and has always meant, to be Black in the United States.
In the early 1980s, Cedric Robinson’s Black Marxism: The Making of the Black Radical Tradition took Marxism to task for failing to account for the essentially “racial character” of capitalism’s development. Robinson’s work is having a bit of a renaissance, in part because of the movement’s embrace of an integrated analysis of how racial subordination, specifically of Black people, has been central to the development of capitalism and the United States. In the movement’s account, influenced by Robinson and Robin D.G. Kelley’s work, the country’s twin commitments to a structure of white supremacy and capitalism go back to the founding of the nation and the history of chattel slavery. Capitalism is, and has been, central to the devaluation of Black life, before, through, and after the founding.
The movement points to the roots of policing in slave and border patrols: in regulating Black and indigenous life to accrue benefit for the white populations through the extraction of Black labor and the expropriation of indigenous land. The role of police changed over time – first to patrol runaway slaves, and then to control Black life after the formal end of enslavement with enforcement of the Black Codes and Jim Crow.
The Movement for Black Lives’ critique situates the rise of mass incarceration as the latest system of control of Black labor, and the other half of austerity and deregulation under a regime of neoliberalism. The Center for Popular Democracy, Law for Black Lives, and BYP 100 recently released a report, Freedom to Thrive: Reimagining Safety & Security in Our Communities, analyzing budgets in 12 different localities, from Atlanta and Baltimore to Houston and Orlando. In a particularly important passage, the report notes:
Over the last 30 years, the US has dramatically increased its investment in policing and incarceration, while drastically cutting investments in basic infrastructure and slowing investment in social safety net programs. Elected officials have stripped funds from mental health services, housing subsidies, youth programs, and food benefits programs, while pouring money into police forces, military grade weapons, high-tech surveillance, jails, and prisons. These investment choices have devastated Black and brown low-income communities…. Moreover, the choice to use punitive systems instead of stabilizing and nourishing ones does not make our communities safer. Study after study shows that a living wage, access to holistic health services and treatment, educational opportunity, and stable housing are more successful in reducing crime than more police or prisons.
With this intertwined analysis of racism and capitalism, for the Movement, grievable state violence is understood to exist beyond police killings and even police brutality or stop and frisk. The concern is with a comprehensive set of policies and systems and how they work together to devalue and delimit Black life. The demand is for a new form of governance.
The Vision’s reimagination of policing—rooted in Black history and Black intellectual traditions—transforms mainstream approaches to reform. The Vision demands shrinking the large footprint of policing, surveillance, and incarceration, and shifting resources into other social programs in Black communities: housing, health care, jobs, and schools. It focuses on building power in Black communities, and fundamentally transforming the relationship between government, market, and society. In forwarding an abolitionist imagination, the movement offers transformative, affirmative visions for change designed to address the structures of inequality—something legal scholarship has for far too long lacked.
The movement echoes what Allegra McLeod recently championed as a “prison abolitionist ethic.” As Rachel Herzing, one of the founders of Critical Resistance, explains: “If one sees policing for what it is—a set of practices empowered by the state to enforce law and maintain social control and cultural hegemony through the use of force—one may more easily recognize that perhaps the goal should not be to improve how policing functions but to reduce its role in our lives.” The abolitionist ethic permeates the Vision, which calls for an “end” to various punitive and exploitative practices. To take but a few examples, the Vision calls for an end to police in schools; mass surveillance by police; privatization of police; capital punishment; money bail, fines, and fees; the use of criminal history as relevant to determining access to housing, education, voting and other services; immigration detention and deportation and ICE raids. Simultaneously, the Vision calls for divestment from federal policing programs and military equipment for local police, and decriminalization of drug crimes and prostitution. As McLeod explains, an abolitionist approach rejects “the moral legitimacy of confining people in cages” and, therefore, does not sanction related alternatives like “punitive policing, noncustodial criminal supervision, probation, civil institutionalization, and parole.”
The Vision does not conceptualize abolition as an immediate and total end of physical incarceration, but rather a project of decarceration. There is both a deconstructive and imaginative project, aligned with earlier abolitionist projects and writings, including that of W.E.B. DuBois. This is the unfinished project of abolishing slavery. Under the invest-divest demand, the Vision calls for divestment from prisons, police, and surveillance, and for those same resources to be invested instead to restorative services, mental health services, job programs, meaningful healthcare, and education. This is an agenda for reform seeking to transform the political and social order.
To illustrate the basic distinction between a traditional approach to reform and an abolitionist one, take the presence of police in schools. In Ferguson, the DOJ documented how the police respond to student misconduct with arrest and force. The DOJ’s Ferguson report documents officers shoving, arresting, charging, and tasing students (for not following an order to walk to the principal’s office, for example). The DOJ recommended better training, evaluation, and policies so that the school police program “can be used as a way to build positive relationships with youth from a young age and to support strategies to keep students in school and learning.”
This amelioration approach stands in strong contrast to the Vision’s demand. In its call to end the war on Black people, the first constituent demand is for an “end to the criminalization” of Black youth, including ending zero-tolerance school policies and arrests of students, removing police from schools, and reallocating funds from police to restorative services. The approach is not to improve the police, but to remove and to disinvest from them altogether. Police turn schools into the entryway into the school-to-prison pipeline, pushing students out of school and into jails and prisons. This is what police in schools do; it is their symbolic and material function. Their presence cannot be fixed.
In academic and public discourse, contemporary anti-capitalist racial justice movements have fueled greater understanding of the social problems presented by crime and migration, and the state and market institutions (prisons, policing, and deportation) that respond to those problems. The Movement for Black Lives—made up of sixty-plus Black-led organizations, including Black Lives Matter—has provoked attention to the nature of police violence and the impunity under which it functions. The immigrant justice movement—United We Dream, the National Day Laborer Organizing Network, #Not1More, Puente, Mijente, and more—has exposed the brutality of global migration, deportation, and immigration enforcement.
But these movements’ more radical critiques and broader intersectional analyses are often missing in prevailing accounts. These movements articulate an intersectional politics that pays attention to neoliberalism, capitalism, and class; an understanding of how law, the state, and the market together fuel intersectional structural inequality in the United States and around the world; and a reimagination of the past and a radical new future, centering the realities and needs of people of color.
In my article, I argue the visions of such radical social movements offer an alternative epistemology for understanding and addressing structural inequality and injustice. By studying not only the critiques offered by radical social movements, but also their visions for transformative change, the edges of law scholarship can be expanded, a deeper set of critiques and a longer set of histories—of colonialism and settler colonialism, the Atlantic slave trade and mass incarceration—centered, and a bolder project of transformation forwarded.
Studying these visions will contribute to our understanding of a broader frame for understanding how law, the market, and the state co-produce intersectional structural inequality—in other words contribute to the project Amy, Jed, and David laid out in the manifesto. But studying radical movements will also shift our frames for thinking about change. These movements focus not on building the power of law and law enforcement—which are the typical ends of many law reform, and most criminal law reform projects—but on but on transforming the state and society and building the power of marginalized communities. This shift would invigorate the social movements literature and bring new energy to scholarship on substantive areas of law, from criminal and immigration law to property and contract law.