According to noted scholar of race, gender, and the law Dorothy Roberts, making the criminal justice system democratic requires more than reform. The problem is not black communities’ alienation from law enforcement because criminal law is not democratic enough, she argues; the problem is that criminal law excludes black people from democratic participation.
In a recently published article in the Northwestern Law Review titled “Democratizing Criminal Law as an Abolitionist Project,” Roberts sets out an alternative vision of criminal justice. The article arose from Roberts’s participation in a conference at Northwestern University in November 2016, which gathered leading criminal law scholars to discuss their work on democratic criminal justice. Reform is inadequate to democratize criminal law, Roberts writes. So instead of reform, she proposes another path: an abolitionist approach.
Roberts is the George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights. She is also the university’s 14th Penn Integrates Knowledge Professor, holding joint appointments in the Departments of Africana Studies and Sociology and at the Law School. The twentieth anniversary edition of her groundbreaking book, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, was released this year.
“As an initial matter, democratizing criminal law requires acknowledging that the very definition of law breaking in the United States is biased against black people,” Roberts writes.
She details how prosecutors addressed drug use during pregnancy by turning the issue into a crime rather than a public health problem, and incarcerated black women rather than provide them with needed health care. In addition, loitering laws incorporated racist notions of criminality in the guise of promoting norms of orderliness. When reform efforts focus on why black people break the law, they ignore the question of how racism affects the definition of law breaking.
“The criminal justice system’s reinforcement of a presumed association between black people and criminality in the very determination of law breaking undergirds the system’s anti-democratic function and points to the need for an abolitionist approach,” Roberts writes.
And while law breaking conflates racism and criminality, she argues, the criminal justice system — through mass incarceration, capital punishment, and police terror — excludes African American from full political participation. To uphold an unjust racial order, she explains, those three pillars of the U.S. criminal justice system contradict liberal democratic ideals.
Mass incarceration confines a staggering and disproportionate number of African Americans and strips a significant proportion of the population of their voting power through felon disenfranchisement. And beyond the dilution of African American voting power, American history is rife with examples of law enforcement directly silencing black political leadership, Roberts notes, from the jailing of Martin Luther King, Jr. to the military-style tactics used on protestors in Ferguson, Missouri, after the police killing of unarmed teenager Mike Brown.
For black mothers in particular, Roberts notes, the intersection of the prison, welfare, and foster care systems only amplifies the anti-democratic function of the criminal justice system. Cash poor and low-income black mothers are disproportionately involved in all three systems, and the thousands of black women in prison today (mostly for nonviolent crimes) need better living conditions and social services, not criminal punishment.
“By attributing black families’ hardships to maternal deficits,” Roberts writes, “these punitive systems devalue black mothers’ bonds with their children, and prescribe prison, low-wage jobs, foster care, and adoption in place of adequate resources and social change.”
She characterizes the relationship between black communities and law enforcement not as one of protection but of “mass control”: discriminatory stop-and-frisk procedures unfairly target black people for arrest for minor crimes, many of those arrested cannot pay for bail and spend large amounts of time in jail for crimes they did not commit, and post-conviction monetary sanctions become perpetual punishment for the people who cannot afford to pay them.
“This cycle targets entire black communities for state regulation that deprives them of the resources, liberties, and legitimacy needed for democratic participation,” Roberts writes.
Reforming an inherently undemocratic and unjust system requires “dismantling its anti-democratic aspects altogether and reconstituting the criminal justice system without them,” she explains.
The abolitionist project of democratizing criminal law Roberts describes requires efforts such as: ending stop-and-frisk practices, bail, monetary sanctions, and disenfranchisement; repealing harsh mandatory minimums for violent crimes and eliminating incarceration for nonviolent offenses, along with decriminalizing drug use and possession, as well as other conduct that poses little harm to others; and holding law enforcement accountable for brutality and rights violations.
Black feminists, she notes, are considering what abolition means by developing responses to domestic violence that do not rely on law enforcement for protection. Law enforcement incarcerates large numbers of black people, and black victims of domestic abuse are often arrested, injured, or killed by the police they have called upon for help. So rather than turning to law enforcement, women are developing responses that address the causes of violence while holding community members accountable.
“The black feminist strategy for addressing domestic violence suggests the possibility of taking an abolitionist approach to criminal law without sacrificing protection from violence in black communities,” Roberts writes.
Any true democratizing effort must entail ending criminal law’s systematic and violent exclusion of black communities from political participation, she concludes.
“Democratizing criminal law requires acknowledging the crimes that an anti-democratic criminal justice system perpetrates against black people and abolishing them so that black communities have greater freedom to envision and create democratic approaches to social harms — for themselves and for the nation as a whole.”