RISA GOLUBOFF: Good
afternoon, for those of you
who have come from across
grounds, and don't know me,
I'm Risa Goluboff.
I'm the Dean of the
Law school here.
And it is a privilege
to welcome you all.
And I would say, I
think you all know this,
but our students are in exams.
So I think the audience is
small, but fiercely committed,
I'm sure.
And I would just like to say
that I spent a lot of time
not attending
panels because there
are things that I have to do,
that are not at the panel.
And I can't tell you how sad I
am that I cannot stay for this
entire panel.
This is a panel that is
both full of luminaries,
and talking about
really important things.
And I would say, just from my
personal perspective, things
I personally care deeply about.
And my own scholarship is about.
So I'm sorry I won't
get to be here,
but I'm really
glad that you will.
So let me just say, Chris Berk,
Bernard Harcourt, Vesla Mae
Weaver, and Heather Thompson.
You could not have a
better group of people
to talk to you about
mass incarceration,
the carceral state,
prison resistance.
From the nuts and bolts,
to the political science,
to the philosophy,
to the history.
They cover the
landscape in ways that
are sophisticated, really smart,
really topical, and present.
And you are just lucky
to hear from them.
So I will watch the
video when it comes out,
and I will listen to it
when I have the opportunity.
But let me just say, it is
a privilege, and a pleasure
to have all of you here.
And and to hear what
you have to say.
So thank you for being here.
Thank you, Chris,
for organizing,
and Debbie Hellman
for helping organize.
And it is really our
privilege, so, thank you.
[APPLAUSE]
CHRIS BERK: Well, I
echo that welcome.
My name is Chris Berk,
I'm a postdoc here
at the University of Virginia.
I want to echo that thanks.
It was just given to Debbie
Hellman, and the University
of Virginia School of Law.
Support from the Department
of politics, as well as
the program, and political
philosophy policy of the law.
Without these folks, this
would not have happened.
I'm so excited to have
this event here today.
We have a brief roadmap for
our session this evening.
After a brief introduction, I'm
going to moderate an exchange
among our panelists.
I want to leave about 45
minutes for a more structured
discussion among the panelists.
And then open up the
latter part of the session
for audience questions.
They're very excited to
hear what you have to say,
as am I. And for
those that would like
to meet Professor Harcourt,
Professor Weaver, Professor
Thompson.
We'll leave time
at the end for you
to come up and talk to them.
So I want to start with
a simple observation.
Description and
policy prescription
are often bound together.
How one describes a situation
brings particular features
into relief, and casts
other features in shadow.
And in the process, it
makes particular responses
more or less plausible.
It's hard to imagine a more
fitting example of this
than prison reform.
Some focus on the
scale of imprisonment,
and the sheer enormity
of the US carceral state.
Last year there are
about 1.5 million people
in federal and state prisons.
Not including those in
municipal and county jails,
immigrant detention, along with
outpatient forms of custody,
like probation and parole.
And in this narrative, attention
is turned to wider, more macro
forces.
Others find the emphasis on a
single, national level story
less helpful.
A national story, they argue,
is too blunt of an instrument
to convey the complexity of
the problem, and its history.
A state level story, about
say, the specific circumstances
of Virginia is an improvement.
However, here too, this
misses lot of detail.
Ideally, perhaps we
would tell 3,144 stories.
One for each county
in the United States.
Whatever one's preferred
level of analysis,
the effects of
criminal justice policy
are not randomly distributed
by class, gender, race,
disability, or even geography.
Particular communities, and
particular sorts of people
have borne the
brunt of what we now
refer to as mass incarceration.
Young black men without
a college degree
face a staggering risk
of being in prison
at some point in their life.
One in three.
Similarly, those with
mental illnesses,
constitute a large segment
of the prison population.
And overrepresented in
both the use of force,
and imposition of
solitary confinement
within prison walls.
There is a long, venerable line
of social scientific analysis
that has carefully tracked these
differential effects in detail.
And how one thinks about the
effects of criminal justice,
too, can influence
the discussion.
Scholars have
turned our attention
to the so-called collateral
consequences of custody.
When someone is removed
from the community,
it's not just a
lawbreaker that's
removed, but a spouse, a friend,
a lover, a parent, a worker,
a taxpayer, a voter, a
community member, and so on.
And in these roles, consequences
[? rampify, ?] often
with intergenerational
consequences.
On a different register, how we
envision the police of prisons,
and social life seems
to also to matter.
Prisons are often described
as spaces set apart
from civil society.
We talked about life on
the inside, individuals
who are cut off from society
being locked in, being let out.
Prisoner reentry,
and prisoner return.
This implicit mental
mapping suddenly
shapes evaluative judgments
across a number of domains
from economics to law.
And just quickly, two
stark examples of this.
Assessments of the economic
gains of African-Americans
since the 1980s are cast
an entirely different light
when statistics are
adjusted to include
the mass incarceration
of young black men
over that same period.
Those gains, in short, are
almost entirely wiped out.
Similarly, a shift
in perspective
calls into question,
gains in public safety.
You've experienced
what some have called
the Great American
Crime decline,
but violence within
custodial institutions
isn't featured in local state
or federal crime statistics.
And what information we
do have about these places
offers a hellish portrait.
When we view prisons
as continuous
with, and not separate from
wider political struggles,
our attention is directed
to disenfranchisement laws,
prisoners' rights struggles.
Inmate work stoppages,
and mass strikes.
And we're forced to ask
philosophical questions
about the place of custody
in the democratic polity.
In sum, and taking a
step back, not only
is the train in
front of us complex,
but we have a variety
of maps, only a few
of which I've just
gestured towards.
And it's less clear which,
if any, should be our guide.
It's hard to imagine a more
impressive group of scholars
to help sort us through
these issues that
surround both
rebellion and reform
in our historical moment.
Each of these panelists
are at the top
of their respective fields.
They're also prominent public
intellectuals, and activists.
I'm going to give a brief
introduction for each panelist.
And then turn to the discussion.
Vesla Weaver is a Bloomberg
distinguished associate
professor of Political Science
and Sociology at Johns Hopkins.
Prior to joining the
faculty at Hopkins,
she was a 10 year professor
at Yale University.
And prior to that, faculty here,
at the University of Virginia.
In that time she's authored a
number of important articles
and books, including
an award winning
book with Amy Lerman,
Arresting Citizenship:
the Democratic Consequences
of American Crime Control.
The first large
scale empirical study
of what large scale shifts
in incarceration and policing
have met for political
and civic life
in communities where
it was concentrated.
Bernard Harcourt is a
contemporary critical theorist,
advocate, and author of a
number of award winning books.
Most recently, The
Counter Revolution:
How Our Government Went to
War Against its Own Citizens.
He is the Isidor and Seville
Sulzbacher Professor of Law,
and Professor of Political
Science at Columbia University.
Harcourt, among
other appointments,
is the Executive Director of
the Eric Holder initiative
for civil and political rights.
And the founding director
of the Columbia Center
for Contemporary
Critical Thought.
Heather Ann Thompson
is a historian
at the University of Michigan,
and is the Pulitzer Prize,
and Bancroft winning
author of Blood
In The Water: The Attica
Prison Uprising of 1971,
and its Legacy.
She also wrote the
book Whose Detroit?
Politics, Labor, and Race in a
Modern American City in 2001,
which was republished
in 2017, on the occasion
of the 50th anniversary of
the Detroit Riot in 1967.
I'm going to begin by asking
the panelists to take about 5
to 10 minutes to put the
contemporary concerns
over prison reform
in the context
of their own recent work.
And here, I'm going to ask
Heather to talk about her work,
in particular.
And start off the conversation.
HEATHER ANN THOMPSON:
Well, thank you.
And thank you all for coming.
And what I know is a
not great time of year
to be coming and listen
to other people talk.
But I really appreciate
that you're here.
And thank you, Chris, for
bringing us all together.
This has been-- we've had a
tremendously enriching day,
already getting to talk with
Chris about his manuscript.
And so, that's
both a pro for us,
but it's also maybe
a con for you.
Because I think our gray cells
might be a little bit fried.
I've tried to get
some of my thoughts
down here in note form.
Which I might just read, so that
I don't completely veer off.
But I hope that we
can pick up on some
of these things in discussion.
So Chris asked us to reflect
on the issue of prison reform.
But to do so through the
lens of our own work.
And so, I think what I want to
do, is first locate my work,
and to think about the
questions that he's asking us.
I want to locate myself
in the conversation
by beginning to say that--
Look, there's enormous efforts
that are being put right now
into rethinking the
carceral state,--
the one that Chris
just described--
for all kinds of really
important reasons.
But I do think that
we come to this
wearing many different hats.
And I want to share with
you what those hats are.
So I'm a historian by training.
I work mostly on
policing and prisons.
The first book on
Detroit is really
about police brutality,
and black politics.
The second book on Attica
was the prison book.
But I'm also someone
who, for the last decade,
has done a lot of
work on prisons
as sort of
institutions, to think
about the policy question of,
what do we do about prisons?
So I wrote an article called,
Why Mass Incarceration Matters,
that was what really connected
me to the policy discussions
on prisons, and the
prison reform discussions.
So through that, I had the honor
to sit on a National Academy
of Sciences panel to talk.
And we met for two years
to talk about the causes
and consequences of high
rates of incarceration.
It was two very intense years.
And through that, I was also
able to spend a lot of time
talking to, but also listening
to congressional staff
briefings.
Also got to talk to prosecutors
in the nation's 35 largest
districts about what it is
that they thought they were
doing with policing in prisons.
I got to participate in
the 2000-- very historic--
2012 summit in Washington DC
called the Bipartisan Summit
of Criminal Justice Reform.
Which was, I would just
say, a surreal moment.
We're in the same room, we had
the ACLU, the Koch brothers,
the Christian evangelical,
it was a bizarre moment.
But it was a moment,
nevertheless,
where everyone agreed
on one premise, which
was that this was a disaster
that needed undoing.
And that was in 2012.
And since then, it isn't that
that criminal justice reform
impulse has died away.
I think it's largely
transferred itself
from that policy level in
DC, for obvious reasons,
to the ground floor, where it's
probably most powerful to begin
with, which is the Grassroots
Movement for criminal justice
reform.
And also the state
level legislative moment
for criminal justice reform.
So where I fit into this
is sort of strangely,
because I'm very
interested in the question.
But as a historian,
I'm also deeply
skeptical of a lot of the
discussions that are being had.
And so I wanted to share a
little bit with you about that.
Oh, the last thing I want
to say about the hat I wear.
Is I also, just in
my work, but also
in the policy
political work, to me,
it has been just
essential to elevate,
to center the
voices of people who
have been impacted by the system
that we're trying to undo.
And so, what that
means, for me, is
to try to shine the light
on what actually is going
on inside via pieces for the
New York Times, or Rolling
Stone, or CNN, or whatever.
But it also means at
the grassroots level,
thinking hard about
what my position is
on a given proposal.
Not knowing what that position
is, until I've actually
had some time to sit down and
think about how it would play
out from the perspective of
people who are most directly
impacted by it.
So what does that have to
do with prison rebellion?
Well, I think that we were asked
to think about prison rebellion
and prison reform today.
And the truth is
that those are often
posited as prison rebellion
versus prison reform.
Right?
This idea that we should either
rebel against, internally
and externally, and
overthrow the system.
Or we should reform it.
So actually, this question
of prison rebellion
and prison reform, is a
question, it's real core.
Or it has been posed that
way about prison abolition,
versus prison reform.
And I think we're really
there right now as a movement.
There's huge groups that
are really committed
to this project to
prison abolition.
To getting rid of this
apparatus, as we know it.
And then others, who are
committed to reforming
it much more immediately.
So putting energies into things
like the Clean Slate Act,
or the Second Chance Act.
Well, I can't really
comment those questions
in any other way
than a historian.
So, again, to locate myself.
I'm someone who spent the
last 13 years of my life
rescuing and chronicling the
extraordinarily complicated
story behind one of the
country's most dramatic prison
uprising.
And that was one that took
place at Attica in 1971.
And so that gave me
a lot of a window in,
what does a prison
rebellion really look like?
And how might it connect with
these contemporary issues
such as, beating back
mandatory minimums,
or reducing the age that
juveniles can be confined
as adults, or these kind of more
practical, immediate demands.
Well I have a lot
of thoughts on this.
But let me just pose a
few before I turn it over.
One of the things that
working really closely
on prison rebellions
has shown me--
and I think specifically
has bearing on this question
of prison reform--
is that whether we're
looking at Attica,
which I know inside and out.
Or whether we're looking
at other prison uprisings
from ones in the '60s, such
as Cummins Farm in Arkansas.
Or years later in 1980, the
New Mexico prison uprising,
or much more recent prison
strikes and uprisings
across the nation
in 2016 and 2018.
The one thing that you
can't help but notice
about every single one
of these incidents,
is that the actions precede
first a intense period, where
the folks inside
have been mobilizing
in various capacities,
various political capacities,
have a lot of different
political points of view.
But the one thing that they
agree about fundamentally,
is that this institution has
denied them basic humanity.
And that the most important
platform on which everyone
can agree, is to demand things
that will recognize them
as human beings.
So these are often very
quite simple demands.
Basic medical care, the
ability to read what
you want to read in prison.
And that really is true,
whether it's Attica or today.
I'm in a major lawsuit against
the Department of Corrections
in Illinois, and about ready
to file one in New York
because people can't
read my book inside.
So these are basic human rights.
Now, that is not to minimize,
I'm going to be really clear.
That is not to minimize the
deeper political thought that
is going on in prisons.
At Attica, there
were Black Panthers,
there were young
lords party members.
There was intensely rich
political discussions going on
about how to improve the nation,
the world, and the prison that
were beyond these basic demands.
But the basic demands
to be treated as human
were galvanizing,
they were energizing,
and they were the one thing
that people agreed upon
across multiple communities
inside of the yard.
So, for example, at
Attica, some of you,
if you know anything
about Attica,
a very key voice at Attica was
a guy named Elliot Barkley.
And if you don't know
his name, you probably
know his vision, which was
he was this tall, skinny kid
with his Granny glasses.
And he had the famous speech
which said, "We are men,
we are not beasts.
We refuse to be beaten
and driven as such."
And that was such
a powerful summing
up of what the totality of the
Attica demands represented.
Now, I'm calling attention
to this for a reason.
Which is that, at
that time, in Attica
and I would venture to
say, even in the prison
strikes of recent years.
And recent events,
for example, that I've
covered at Lee Correctional
Facility in South Carolina,
nobody in those key
moments of upheaval
were calling, or questioning the
basic premises of the system,
which was confinement.
Ironically.
And I wished it was differently.
I wish it was--
I wanted to find it
to be differently.
But it wasn't.
What was being
questioned was not
the right of the state
to adjudicate justice,
at some fundamental level.
What was at stake was the
bounds of how it was done.
It was the fact that it
was deeply racialized,
it was deeply classed.
And therefore, it
was deeply unjust.
And that the basic
human rights demands
were paramount, because
it was the only thing--
that was what's
most at question.
So even in the recent
prison strikes,
and I know I'm going on.
But the recent prison strikes--
there's an enormous
activism that goes on.
But the fundamental request to
not be exploited and treated
as slaves, is itself
not challenging
in fundamental ways,
the prison itself.
Now that matters, not
because, by the way,
people inside are not
questioning those things.
I'm just talking about the
form that the rebellion takes.
So I think that this actually
poses a really interesting
conundrum for us
today as we navigate
these waters between prison
reform and prison abolition.
The very existence
of prison uprisings,
the very expression of prisoner
voice and determination,
is something that
we on the outside--
If you hope to change that
system fundamentally, as I do,
those episodes of
prison uprising
are deeply heartening, because
they suggest that the system is
not legitimate.
That the voices from
inside will help
to topple that system
from the inside.
And yet, there is a deep irony
because when those prison
uprisings are successful, what
they are successful in doing
is reforming the system.
They are successful in making
that system more humane.
Which in turn, is doing
the exact opposite work
of actually trying to
dismantle that system.
And so, there is
this real tension
between celebrating the
overthrow of the entire system
via prisoner activism,
and the recognition
that the very
activism,-- because it is
framed in a humanitarian way.
Again, when responded to,
tends to legitimize the system.
So for example, right
now we have a situation
where we have certain key
legislative initiatives right
now.
Whether it's the Clean Slate
Act or Second Chance Act.
And many people publicly in
the prison abolition community,
those of us who feel very
strongly that the system cannot
be reformed, it is
inherently racist,
it is inherently a system of
control, and racial control,
and racial dominance.
That those kinds of acts
are hard to support.
Because in some
respects, they suggest
illegitimacy of the system.
And they suggest that
they can be reformed,
they just need to
be made more humane.
So my closing thought on that,
is that that is a conundrum.
But how I've navigated
it, because Chris
asked us to place ourselves
in this at some level.
Is that I take you back to
what I said in the beginning
about working most closely by
elevating the voices of folks
inside, and doing more listening
than talking, in those spaces.
It is a conundrum, but for the
communities, and even I think,
my own families impacted by
this, I will just reveal.
But for any impacted
community, prison reform
is revolutionary in itself.
Because even to ask for those
basic humanitarian things,
such as, a second chance
at inclusion in the polity,
or the ability to
not be exploited
as enslaved labor in the
prison, or the ability
to have medical care.
Even those acts
themselves, I think,
are revolutionary and radical in
a way that we don't appreciate.
And that if we actually
take seriously,
how devastating the experience
of incarceration is,
that to support those
actually, do not necessarily
reinforce the system.
And that the other lesson to be
drawn of a place like Attica,
is that while it is
true that successful--
what might deem a success
of a prison rebellion,
is to bring some reforms.
Like, for example,
better visitation
follows the Attica rebellion.
It is also true that the
very spirit of that activism,
on a basic humanitarian
basis generates
all kinds of new imaginations,
and possibilities
about what justice could
look like in America.
So I don't think that they're
actually oppositional.
And I think that
it is perfectly OK
to support those prison reform
impulses for all of the reasons
that I just laid out.
But not to do so grudgingly,
or even as oh, I guess we
have to because we don't
have anything else.
But actually to understand
those moments of victory
as empowering themselves,
and politically
generative themselves.
And I could say more about
that, but that's my two cents.
Thank you.
CHRIS BERK: Thanks
so much, Heather.
Vesla?
VESLA MAE WEAVER: So thank you
for inviting us to speak today.
And for having the
vision for this event.
And to Dean Goluboff
for having us here.
I'm not going to talk
about my past work.
But what I thought of
what needs saying today.
I think I want to shift, from
thinking about prison reform,
towards policing.
Most of the, I
mean, all of us have
served on multiple
manifestations of prison reform
bodies.
And most of the
progressive reform efforts
are focused on the tail end
of criminal justice, which
is confinement,
sentencing, conditions.
But look to the front
end, police predation,
misdemeanor justice,
encounters that occur
long before any formal
conviction is obtained.
And what you see is the
disappearance of conservatives
from the coalition.
The conversation quickly
becomes about modifying
technology, improvements
in technology,
body cameras, and the like.
And away from
people, and investing
in the social roots of crime.
But the front end, I would
argue, is even more important.
Not only because it creates
the sample for the back end.
But because, precisely,
because it contains a lot more
possibility for discretion,
a lot more innocence--
and I use that in
scared quotes--
and a lot more kids.
And so, I'm going to talk
about those three things.
But also because of that,
because of those three
features, reform, I would
argue is even more plausible,
potentially impactful, and more
disruptive to the bad feedbacks
that we've witnessed.
So I've been at work at
something called the Portals
Policing Project.
We have a new website, so it's
portalspolicingproject.com.
I'm only going to speak
about it for two sentences.
But we dropped gold spray
painting shipping containers
in 11 neighborhoods, in six
cities, in the United States.
Some of the most highly
surveilled, and incarcerated
neighborhoods in this country.
Including one that is
located in the 53206 zip
code of Milwaukee,
which is the highest
incarcerated neighborhood
in the entire nation.
And these gold
shipping containers
contained immersive audio,
visual, technology in them.
And we invited people to
come in, and bear witness
to each other, collaborate
with one another,
exchange stories in this
new civic infrastructure.
Reason I mention this, is that
we are collecting the largest
archive, that I know of,
of policing in our time,
in our moment, by the
policed themselves.
Giving voice to
their experiences,
to their freedom dreams,
to their discursive frames,
to their ideas for justice.
And so I wanted to read to you--
I'm going to read two, maybe,
three conversational excerpts.
Only one of which
is-- two of which,
are from this Portals
Policing Project.
And I'll tell you what
the second of which
is from in a moment.
"First time the police stopped
me, I was 11 years old.
And they stopped me because
I was playing water balloon
fights with my friends
during the summer.
And they handcuffed all of us.
They paraded us in
front of the community.
They had the helicopter on us.
And this was like a
group of 11-year-olds.
Like nobody was older than 13.
And like, they had guns on us,
they pointed a gun to my head,
and they threatened our lives."
And that was a man in Baltimore.
The second narrative is not
part of the Portals Project.
Bear with me, "I
was 11 years old.
And I will never forget it.
I used to go back and forth
to church on Sunday afternoons
to the United
Methodist youth group,
and I always rode the bus.
And you had to stand
on the corner, which
was about two blocks from
my house, to catch the bus.
And the policeman,
in those days,
all police people were white.
And these policemen
would harass me
as I was standing on this corner
waiting for the bus to come.
And sometimes the two of them
would drive up, you know.
The bus stop was up high,
and the street was down low.
And they would drive
up under there.
And then they'd
expose themselves."
And the interviewer says,
"Who, the policeman?"
"Yes, while I was
standing there.
And it just really
scared me to death.
And the only reason I did
not go home at that time,
was because if I had
gone home, my mother
would have made me stay.
So I just stepped
back from the corner.
And because I rode
that way all the time,
the bus driver didn't see me
standing there at the corner.
He'd always stop, and
I'd get on the bus.
But it was these same cops, so
I had a morbid fear of policemen
all my life.
And it is not
completely gone away.
And this was in the broad open
daylight, the sun shining,
but I will never forget it.
It always comes back
to me every time I get
into a really tight experience.
That was really bad, it was
bad for all black [? holes ?]
you know."
And her husband says,
"That's one of the things
that parents passed
on to their children.
Fear and hate of the police.
If you look at the black
kids today, even little ones,
they are scared to
death of policemen.
And it's beginning to
let up a little bit.
The police are
trying to erase that,
but it's generations,
and generations,
and generations of fear.
It was really hard for
me to tell my children
that these police
were helping people.
It was really hard, and I
really prayed a lot over that.
And I said, well this is
something that you got to do.
I had a job as a public health
nurse at Topeka, Kansas.
And we had a lot of
child abuse, even then,
and that was in the '50s.
'50s, and my supervisor said
to me, she gave me a situation,
she said, 'now, when you go to
a house, and somebody is a man,
is beating his wife.
Now what are you going to do?'
I said, 'Call the minister.'
And she said, [? 'Ferdie, ?]
you're an intelligent person.
You know that's not right.'
I told her she's a
wonderful person.
I said, Alice Jensen I know
that's not the right answer.
I should call the police, but
I don't believe in the police.
And that was after my
third child was born.
So it has taken a
long time for me
to have any kind of trust in
the policeman, as a group.
Even when I tried to say
to myself, it's one person.
And everybody is not
like everybody else.
But it's really very
difficult for me.
And that one stayed with me,
that has stayed with me."
And then the third,--
now that was from a
collection of oral histories,
That some smart
group of researchers
decided to collect in the
aftermath of Jim Crowe.
They went and they
interviewed thousands
of people who had lived
through Jim Crowe,
to tell about their experiences.
And we can have a
conversation about this,
because the police are
everywhere in those narratives.
And yet, we have forgotten that.
We have forgotten
that for Malcolm X,
Kelly Miller, [? Dubois, ?]
George Jackson.
Police were central figures in
theorizations of racial order
and democracy in this country.
The third transcript
happened in Baltimore,
through this Portals Project.
"And before that, I
mean even I can remember
when we couldn't go on
Johns Hopkins University,
on their campus as black kids.
We couldn't go on that campus.
Because the caretakers
would run us down.
And if they couldn't catch
you, most of the time
they couldn't, but if
they ever caught you,
they slapped you around.
They called the policemen, they
tell a big damn lie on you,
and take you home.
Then you get another ass
whipping from your folks.
Well, in this state, Johns
Hopkins is a big institution.
Not only the hospital,
but all the campuses."
And he goes on to
say, you know things
have changed to a degree.
"Sometimes, when I walk
through the campus,
I see young black students
and I smile at them.
I used to say, 'Well,
how you doing?'
And, you know, I was just
glad to see them there,
not just on the campus,
but actually as students.
But see, a lot of them
are so young that they
don't realize how far we've
come for them to be doing that.
They can't even fathom not
being able to come on the campus
grounds."
I raise these
transcripts to point out,
to shine the light on two
features of our system.
Features that I think we need
to turn the microphone up on.
Features that have been
[? elided ?] in conversations
of justice reform.
But that I think are central.
The first feature, and I
hope you heard, children,
that policing, though in
the many conversations
I have had on roundtables
like this one,
no one ever says policing
is a childhood intervention.
It is a policy of childhood.
What we began to find, and what
other empiricists have found,
is that the average
age of those who
are stopped by police, of
those who have an encounter,
were exposed to police
regardless of how minor
that encounters, regardless of
whether that encounter leads
to a formal adjudication.
Or even a formal
arrest, the majority
of people who have an
encounter with police,
have their first encounter at
the tender age of 12 or 13.
I can tell you, probably,
Heather will verify this,
in the many
discussions I have had
about reform of the
criminal justice system,
police are not seen as
a matter of childhood.
HEATHER ANN THOMPSON:
That's right.
VESLA MAE WEAVER: If you look
at the NYPD cases of stops,
which is one of the
few departments where
we can actually track this.
I was looking at the
data the other day,
and realized, that
there were more stops
by the NYPD between
2006 and 2016 of minors,
than of 18 to 30-year-olds.
That stopped me in my tracks.
What does that mean?
Not always 17-year-olds,
I'm talking about 13,
14, 15-year-olds.
The work of Phil Goff has
shown that police literally
do not see these kids as kids.
Literally sees prepubescent
youth as being fully mature.
The result of these
encounters, I would argue,
are not momentary blips.
They're not, I stopped you, I
asked what you're doing here,
you showed me your ID.
And I moved on.
They are moments of
profound political learning.
They are moments where people
learn to kiss the pavement.
They are moments where they
learn how the state regards
and treats them.
They are moments of
learning anti-citizenship.
Many empiricists have found
that these moments of youths
who were stopped by police--
they exhibited the
symptoms of PTSD.
Your colleague, Jeff Fagan,
the policing scholar,
has found that police
stops in a high-impact zone
among the children-- and he does
all these nice randomization
ways of showing that, as
this policy was unveiled
across space, the test
scores and reading scores
of youth exposed to
saturation policing
went down, and took
fully a year to recover.
Others have shown-- and you
know, we're in a law school--
that this ignites profound legal
socialization at a tender age--
these are
impressionable moments.
These are moments before youth
have gotten a driver's license,
before they've gone to
vote for the first time,
before they've submitted
their first IRS tax reform.
And so one of the things
that I've been advocating
for-- it's become my
hobby horse as of late--
is that once you recognize
that policing is a childhood
intervention-- it is a
policy of childhood--
then we can begin to move
towards a radical proposition,
which is this: what would happen
if instead of making youth
contact with police their first
animating memorable experience
of the state, what if instead
we treated it as a very
last resort, and instead
decided that youth
should be approached by civic
incorporating institutional
attachments?
That instead of learning to
spread eagle up against a cop
car, kiss the pavement,
instead of hearing
the racial invectives
that are used,
instead of having their bodies
be sexualized by a police
patdown--
which is what Paul Butler argues
occurs, that these are actually
moments of sexual
power and abuse--
what if instead we thought of
these folks-- these youth--
as the next generation
of civic agents,
as leaders, as not
realized democratic agents,
as people for whom we should--
their first encounter with
the state or with an authority
should not be in this
kind of confrontation?
So that's the first
thing, and then
the second argument
I want to make
is something else that
stopped me in my tracks.
Imagine a two-by-two
where on the first axis
you have contact with the
criminal justice system,
yes or no, and on the second
axis you have conduct.
You have criminal
offending, yes or no.
Well, I'm an empiricist,
and we looked back
at a longitudinal
survey of youth
that was done on either
side of the expansion
of broken windows policing--
on either side of the expansion
of mass incarceration-- of when
the prison boom
began in earnest.
And what we found was
very disheartening.
On that two-by-two, you
would want most Americans
to fall in the diagonal.
Yes, I've had contact.
Yes, I have run
afoul of the law.
Or conversely, no,
I've had no contact.
I've never been arrested.
I've never been
stopped by police.
And no, I have not broken a law.
I haven't engaged in
criminal offending.
Well, that's exactly
where our system-- where
the majority of Americans
were situated when youth
were coming of age in 1979.
We can show that empirically.
In fact, it's
quite amazing to me
that, actually,
precious few people
had had contact that had engaged
in six criminal offenses.
Underenforcement was really
the guiding principle.
That's exactly where our
criminal justice system fell.
By 1997, the quadrants
have shifted.
The majority of Americans
are in the off diagonal.
Yes, I've committed a crime.
No, I haven't had contact.
No, I haven't committed a crime,
and yes, I've been arrested--
a sharp generational shift.
It took one
generation to happen.
It was the explicit and
anticipated consequences
of explicit policy
decisions to focus
on low-level, minor
or even non-offenders.
It was the explicit
decision to target
policing on certain
neighborhoods--
those that endured
the lead-filled water,
the bad schools, the
interpersonal violence.
And if I were to ask you what
racial demographic groups fell
in which quadrants,
you can probably guess.
Whites moved into the,
no, I haven't had contact
with criminal justice.
I've never been
arrested, but yes, I
have driven a stolen car.
I have driven drunk.
I've engaged in fights.
I've stolen.
I've done drugs.
I've sold drugs.
And blacks fell in
the opposite quadrant.
Now, I think there's
been a ton of attention
to the rise in
mass incarceration.
There's been a ton of
attention on sentencing reform.
But until we reckon
with that basic shift--
that we have people
occupying quadrants
that make for an illegitimate
criminal justice system--
I don't think that
we can grapple
with what Khalil Muhammad
calls the ideology
of black criminality.
For a reform effort to
be truly successful,
what needs to happen
is we need to realign.
We need to recouple criminal
offending with criminal justice
contact.
That loosening over time--
that misalignment--
is what creates
the excesses of our system.
There are many other
excesses of the system,
but that fundamental thing
I've never heard a reformer
reflect on.
And that's what I think.
Kids and realigning--
recoupling--
contact with conduct-- in
the quiet of the night,
those two things
are where I think
we need to shine the light.
And until we grapple
with that, we
will be tinkering
around the edges.
Thank you.
BERNARD E. HARCOURT: Thanks.
OK, so I've got some
prepared thoughts,
but I need to follow up
on what Vesla just said,
because it's fascinating and
raises really difficult issues.
So let me just say three things.
I'm just coming right off
of what you just said.
On the second, you were
saying, realigning contact
with conduct--
OK, and by the way, I
embrace everything you said.
I mean, it was
really very moving.
I wouldn't, though, want to
reify a notion of conduct, OK?
So I think we need to
be very careful in that
project not to reify the
notions of crime that we use,
because those notions of
crime are entirely constructed
and are at the very
basis of the problems
that we are experiencing.
In other words,
it's not a mistake
that we criminalize
street conduct--
conducts that are
public in nature
that tend to be
associated with poverty,
and simply don't think about
all of the other crimes that
are taking place,
you know, right here,
right around us, et cetera.
And so somehow
we're going to have
to ambiguate the notion of
contact, because you know,
there's a lot of
theft that's taking
place right in this building
that we don't criminalize
or we don't see, and we are
committing a lot of things that
could be criminalized, right?
So that's one thing.
Second, I really
appreciate, and I
think it's really
important to focus back
on these policing
questions because it's
clear without question that
the move towards broken windows
policing or
aggressive misdemeanor
arrests in the early 1990s
was a form of governing.
And that's exactly what
you were saying, right?
VESLA MAE WEAVER: Mm-hmm.
BERNARD E. HARCOURT: It
was a form of governing.
It was a way of governing
populations and creating
a particular kind
of social order,
particularly in a city like New
York, where broken windows was
kind of experimented
with Bratton and Giuliani
starting in '94.
And that tie becomes
really important,
because it's when you
understand these practices
as a form of governing
that we can then tie them,
I think, to mass
incarceration and the prison.
And it's that way that we can
relate these conversations so
seamlessly.
And one of the
transformations that I think
is most important
in that context
is the way in which
we've continued with--
so this form of
governing, which was
broken windows, which converted
as a result of pressure
on broken windows and to stop
and frisk, which then converted
because of pressure
on stop and frisk,
and De Blasio's election,
back into broken windows--
bringing back Bratton,
actually, for a second term--
all of those forms of governing
have to also be related to--
feed into, of course--
governing through incarceration.
And then, I would say, also
feed into now governing
through a counter insurgency
warfare paradigm that
targets, in part, different
populations by creating
internal enemies.
Actually the, logic of
broken windows policing also
had a notion of an
internal enemy, which
was the notion of
the disorderly, which
of course was racialized.
But it was a category
that consisted
of disorderly persons--
persons who were considered
to be disorderly--
aggressive panhandlers,
homeless persons, drug dealing,
commercial sex, et cetera--
but I mean, which
was racialized.
But that was an internal enemy.
That internal enemy
has continued,
as evidenced by all of
your portal narratives
that are just so upsetting.
That has continued,
but at the same time
there are other
internal enemies that
have emerged more directly
as a result of 9/11, which
is Muslims in America as a
category of an internal enemy
that then becomes the focus
of a particular kind of way
of governing.
The third thing I
wanted to say was,
one of the places in which
this policing issue is
so much with us
right now that we all
need to be really focusing on
is policing the University--
policing at the University,
on the University campus.
And so right now,
we're in a moment
of kind of crisis of policing
the University-- policing
our campuses.
You've got a month-long protest
going on at John Hopkins
University that everybody should
be following and supporting.
They've taken over the
administration building.
They've been doing this
for about four weeks
now, challenging the
fact that John Hopkins is
going to hire a private police
force, which hasn't ever
had before.
You know, of course, of
the incident at Yale,
where one of Yale's
public safety officers
shot an African-American woman.
And of course, you probably know
about what happened at Barnard
recently, which is also--
it is an issue that I
think we all need to face,
and that comes up
directly in relationship
to these policing stories.
Now, so I did want to
just kind of connect,
because those thoughts were--
but then, let me just briefly
respond to the prompt, which
asks us to explore how
our work has evolved
as a result of these issues.
And so I'll just
quickly talk about three
different dimensions.
One of them is the
empirical theoretical work,
the second is litigation, and
the third is my militancy.
So now, by way of
background, I think
it's important to
realize that we
are at a particularly remarkable
juncture for the prison--
for mass incarceration and for
punishment in this country.
I think that there is a wider
consensus that we've had--
disproportionate
over-criminalization,
mass incarceration, racialized
mass incarceration in this
country--
which is somewhat remarkable--
that it's actually become
something that many people feel
needs to be addressed.
I mean, when you start having
Jared Kushner and other people
trying to address this issue,
that means that it's not just
us anymore, right?
So there is a sense
that this is a problem,
and lots of different
initiatives, but very little
progress--
very little progress,
which is surprising.
You know, the numbers
for 2017 just came out.
We talk about all-time lows--
it's 1.48 million in state
prisons--
in prison populations--
down from 1.61 in 2009.
So the rate used to be
444 per 100,000 in 2009.
Now, it's 440 in 2017, OK?
444 to 440.
444 to 440.
Now, that's 4,000 persons
for every 100,000,
which is a hell of a lot
of human beings, right?
But it's not, I mean--
nothing is happening,
really, right?
VESLA MAE WEAVER: And 60%
of those in California.
BERNARD E. HARCOURT: Right.
So some states have seen, like,
30% declines over the past 20
years--
Alaska, Connecticut, New
Jersey, New York and Vermont.
So there's some states where
there are large declines,
but overall we're
where we were before.
We're still around 2.3
million when you add the jail
populations, right?
VESLA MAE WEAVER: Mm-hmm.
BERNARD E. HARCOURT: So
it's just not moving.
This iceberg is not moving.
And what's also remarkable
about these times
is that prison hunger strikes
and riots are pervasive.
We've had national
prison strikes
in the very-- just 2016.
We've had a flurry of
hunger strikes in prisons.
We just had one
in Alabama, where
we had eight prisoners who were
on a hunger strike in March.
They ended their
hunger strike when
the water taps were turned off.
We've had the riots that Heather
has written about and been
working on in Lee Correctional
Institution in South Carolina.
We've had hunger strikes
in Jackson County, Alabama.
I mean, there's just a there's
a ton of ongoing rioting
and hunger strikes now, as we
speak at this moment, which
reflects, I think, some kind
of a breakdown or accentuation
of prison conditions.
Of course, you're all familiar
with the Department of Justice
report that just came out on
the Alabama statewide prison
systems and all the attention
that that's getting,
but I think that somehow
these hunger strikes
or these moments-- which,
they're not new, of course.
And you know, Heather of
course has done so much work
to show the history of this.
But I think we are at a moment
where somehow these systems are
breaking down, and
it's being reflected
by the amount of rioting
that we are seeing today.
So we're in a moment of kind
of consciousness and crisis,
but with very little
that's actually being
done to change the situation.
And so theoretically,
I've been trying
to figure out what is going on.
And I've started to feel as if,
although all of this policing
continues, although we're
still pushing everyone
into the prison since the
numbers are basically staying
the same, that the model
of mass incarceration
is a bit of a holdover from
an earlier way of governing--
large scale warfare,
war on crime,
war on drugs approaches--
that is, blocked.
It's almost frozen, and
continues in that sense,
but is being supplemented by
another mode of governing,
which I tried to describe in
The Counterrevolution, which
is this more tactical,
strategic use
of counter-insurgency strategies
and practices developed
for the colonies, but
that have come back
to haunt us in this country.
And the creation of
internal enemies--
Muslims and
Muslim-Americans, protesters,
the movement for black
lives, protesters,
and others who have become
the focus of more targeted
interventions--
of some of the
hyper-militarized policing
that is a direct reflection
of these counterinsurgency
tactics, or the
total surveillance.
And so at a theoretical
level, I think
that we need to try
and understand both
how the prison and
mass incarceration is
being supplemented by these
other forms of surveillance
and counterinsurgency policing.
At the litigation
level I'd say--
and here, most of my litigation
is in the death penalty area,
but I think that
what we're seeing
is a real shift in the
death penalty context away
from a path that used to go
through the federal courts,
and that used to go
to the Supreme Court,
much more towards the
states at this point.
I think that with the exception
of some race litigation
in the death penalty context,
where we have been able to get
the Chief Justice Roberts
on board-- so for instance,
in the Buck case, and I think
we'll see it in the Foster
case, and a few other
cases where there are--
I mean, these cases
are so extreme in terms
of the racial discrimination
that is evidenced--
where we still have,
I think, five votes
as a result of Roberts coming
on our side on these cases.
For the most part, death penalty
litigation at Supreme Court
is not going to
go well right now.
And particularly the
stay litigation, which
is inevitably what happens--
I'll try and go
quicker, I'm sorry--
the stay litigation
at the 11th hour,
which inevitably these cases
are always at the Supreme Court.
I think that the Supreme
Court is now actually going
to take this
position that they're
going to have a kind of a
prejudice against giving
relief.
But all of that is to suggest
that the movement there
is from the federal courts,
I think, to the states.
We just saw it it California
with the moratorium.
We just saw it in Washington
State with the Washington State
Supreme Court striking down
their death penalty because
of racial discrimination.
So I think that we're
going to see that shift.
And to my mind, it
has implications
for prison challenges, because
frankly, the first act is not--
I mean, the federal
interventions can just not
have the kind of impact that
we would want them to have,
because the federal
population is small
compared to the states.
So in the same way in
which the death penalty has
to focus on the states,
I think that would
be true of the prison.
And then finally, in
terms of my own militancy,
I would say that
I've been spending
a lot of my time trying
to push critical theory
in a different direction--
in a praxis direction.
My overall sentiment
at this point
is that kind of critical
theory, critical approaches
took an epistemological
detour in the 20th century
and focused excessively--
I mean, importantly,
very importantly,
and you know, I did some
of this work myself--
but importantly on
ideology critique,
on illusions, and on
epistemological questions
about reality, and
moved away from praxis
and trying to figure
out what is to be done,
in part because
the whole question
of what is to be
done often comes down
as a very top-down directive.
And part of where
we are, I think,
politically is to
much more hear what
others have to say than to tell
people what they should do,
but the result is that
we have moved away
from these conversations,
I think, of a reformulated
question of, let me hear what
you think we should be doing.
And that's I think what
we should be focusing on,
so that's what I'm trying to
focus on, at least in some
of this praxis work.
But it leads me to really
feel that, in terms
of my own militancy, that
on the question of reform
versus abolition, I've
really come to the conclusion
that one can only
take an abolitionist
ethic in all of this work--
that all of our work can only
be guided by an abolitionist
ethic--
that the horizon
has to be abolition,
and that the important
work of achieving reforms
is a humanitarian need in
context, where human beings are
being either placed in
isolation or not being
allowed to have phone calls.
As lawyers we're lucky because
we often get to see our clients
and hug our clients, but
for many persons in prison--
that you would have to speak
to your mother or father
or children through
a video, right?
You cannot hug
your family, right?
I mean, it's inhuman, right?
So reforms are
necessary, but it seems
that they have to be part
of an ethic of abolition.
So let me stop there.
CHRISTOPHER BERK: Well
thank you, Bernard,
and thank you to
the other panelists.
I think there are so
many strands which
I could pull from,
but in the spirit
of thinking about
praxis and abolition,
one question I want to direct
particularly to Heather
and Vesla is the relationship
between the politics
of punishment and
racial politics.
So many have called
mass incarceration--
including yourselves--
the civil rights
struggle of our time.
The spark of Black Lives Matter
has been fanned in no small way
by police violence.
The movement to deal with the
sort of excesses of punishment
has produced strange
coalitions, which we've heard
are tenuous depending on
which part of the system
we want to focus on.
So I just invite you
guys talk a little
about the relationship
between racial justice
and the politics of punishment
as you understand it
in our moment, and how they
feed or tear at each other.
HEATHER ANN THOMPSON: I think
that the essential question,
and it's actually
this is the Achilles
heel, in many respects, of the
prison reform movement that
has--
as Bernard points out--
really failed miserably
to move the needle.
And that is the inability,
I think, of prison
reform impulses to
understand the racial roots
and imperatives, and the work--
the racial work-- that the
carceral state system does.
So this idea that, if you
could humanize it-- which,
as Bernard says, is essential.
I mean, that is an
ethical question
that there is no six
ways about it, right?
That must be done.
But that is a
separate question from
whether the actual
institution could
be reformed from what it's
always trying to do-- what
it is, in fact, set up to do.
So we talked earlier
in your session
about what is the political
work that it does.
Well, it isn't just
that it removes
people who have ostensibly
committed harm against society.
It actually, by doing so,
escalates the political power
of the people on the
outside of society.
So when that's racialized, that
means that to undo prisons,
or to actually make
prisons humane, which
would mean to actually make
fewer people be in prison,
which would actually
mean to change power
relations on the outside--
that is itself
revolutionary, because it is
about upending white supremacy.
So these questions
are not the questions
that most prison
reform legislators want
to touch with a 10-foot pole.
They explicitly want
to frame these reforms
in race-neutral terms.
And they would argue that the
only way to get any traction
is to do so--
to not call out the system
for what it actually does.
But it bears mention,
what Bernard said.
And for that reason, the needle
only moves for some people.
So the needle will
move for white addicts.
The needle will move
for the children
of affluent communities.
The needle will move for some
communities over the next.
So it's not actually
that it doesn't move.
It actually does move, but it
moves for only certain people.
Now, the aggregate numbers don't
change in any palpable way,
because the fundamental
rationale of this system
is so racialized.
So yes.
I'll just leave it there.
I mean, that is the
Achilles heel of reform.
It doesn't recognize
that fundamental truth
about the carceral
state, so therefore it
can't move the needle, really--
at least for the population
that's most impacted.
VESLA MAE WEAVER: Mm-hmm.
I mean, it's a
very big question,
and I think it's why I actually
highlighted the work of Khalil
Muhammad, and why I think
in the many new tracks
around the criminal
justice system,
his book is far
and away, probably,
I think one of the most
important for a moment.
Because we have forgotten
that the ideology
of black criminality was
central to all manner
of institutional arrangements--
not just within, but also beyond
the criminal justice system.
So the ways in which
white ethnics--
their criminality became
disguised, and actually
channeled into pleas for greater
investment at the very same
moment that that black
criminality, black offending
was channelled into--
HEATHER ANN THOMPSON:
Or just blackness.
VESLA MAE WEAVER: Or just
blackness, itself, was--
they were not seen as
fit for citizenship,
not fit for social
investment, and that actually
propped up all manner of
public policy interventions
that launched--
you know, in the
words Ira Katznelson,
launched a white,
assimilated middle class.
And so that's one point.
I think we have--
I don't know, I'm
in the spirit today
of pointing out things
that I don't think
are getting enough attention.
And one, I was reading
Paul Butler's Chokehold,
and he says something in
the beginning of the book
that he never comes back
to, but that struck me.
He said, prisons have functioned
like a massive white jobs
program, and that if we are
to truly grapple with them,
we need to grapple with the
fact that white people are
going to lose.
They're going to lose
out if we dismantle--
if we draw back.
So that's one thing-- that there
are actually wages and material
goods that are being given via
blacks not being able to get
jobs after prison, right?
It abets, and in a disguised
way, white employment gains.
And then, the second
way that I think
that we need to think about
racial justice at the same time
as we're thinking about
what the system is and is
constituted by--
we've done a lot of work in the
social sciences to really map
out-- chart the ways in
which custodial involvement,
carceral involvement, imperils
the democratic life worlds
of its wards--
sets them off on parallel
wage trajectories,
parallel employment and
family disunification,
and all of the like, right?
But I don't think
that we've grappled
with what the criminal
justice system teaches whites.
HEATHER ANN THOMPSON:
And gives them.
VESLA MAE WEAVER:
And I had a student--
and what it gives them,
and what it conveys.
So as a political scientist,
I'm deeply concerned with, OK,
more than just distributing
benefits and distributing
goods, political institutions
and arrangements convey--
teach people, teach Americans
things about their government.
They teach them whether
their government sees them
as citizens, teach them about
whether they should enlist
the government's help when
they need it most, racially
socialize them in various ways.
I had a student at Yale
as an undergrad who
penned a very important
thesis, and he
looked at how the criminal
justice system socializes
whites, and found, interestingly
enough, that middle class
whites have--
not as plentiful-- but
many do have encounters
with the criminal
justice system,
but their encounters
teach them benevolence.
They often divert them into
less interaction in the future.
So here, we've got a
system that teaches
one group that the
state is hierarchical,
that the state can touch
and abuse their bodies,
that the state is not
something to be enlisted
when one needs its
help, and teaches
another group the
opposite lesson.
Huh, I was treated fairly and
kindly, and I was diverted,
and the system
works, and therefore
what those other people are
going through is deserved.
In some way, it teaches
them radical legitimacy
of that very system that is
predating upon black lives.
And so what does that mean
for political coalitions?
What does that mean for us to
be able to live and inhabit
the political life
worlds of blacks
who go through the system?
The conclusions they
arrive at are, well,
if they're locked
up, then they must
have done something really bad.
So I have much more to
say on racial justice
and criminal justice.
I am also surprised in
the criminal justice space
at how often this move is
made by top academicians,
by policy--
well, the system-- you know,
I saw this chart the other day
where somebody made the
move of saying, look,
even if we take all blacks
out of our prison system,
we still have this--
I mean, it's preposterous.
We still have this amazing,
muscular criminal justice
largesse.
And so therefore,
it's not about race.
Michelle Alexander, I don't
know what you're going on about.
It's not about race.
It's about neglecting the
fact that the reason why
we have whites
incarcerated is because
of the racial foundations
of that system.
Our muscular criminal
justice apparatus
has very racial roots that
mean that whites are also
exposed to high rates
of criminalization.
But in those same very figures,
black male incarceration is
still off the charts compared
to-- the line is, like,
way out here, and
then they're using--
here's white male incarceration,
and then here's Denmark, right?
And so they're using that gap to
make this claim that the US is
still quite exceptional in its
punishment apparatus, which
is a really the mental
gymnastics you need
to do to arrive at
that conclusion--
that it's not about race when
black male incarceration is,
like, way out here, you know?
I'll end there.
CHRISTOPHER BERK: So
this idea of blackness
as a threat that then
needs to be responded to,
and the material
interests at stake,
really reminds me of
Rockefeller's discussions
on what to do facing
rebellious inmates at Attica,
as well as the argument
that Bernard offers,
about how we now face
counterinsurgency methods
without actual
counterinsurgents.
And so maybe
Bernard, if you want
to frame this a little bit,
and Heather and Vesla, i
you want to jump in about
the threat that's there,
or the threat that
is manufactured
in order to justify highly
repressive responses
to prisoner activism or
racial activism in general?
BERNARD E. HARCOURT: Yeah.
So I think it's important
to recognize that these
are manufactured threats.
Now, to call them
manufactured threats,
though, I think doesn't get
at the whole work that's
being done here.
It's accurate, but it
doesn't get at the whole--
the enormous amount of social
ordering that's taking place.
It's important to emphasize that
these are manufactured threats,
because the social
ordering requires
this imaginary of an internal
enemy in order to get going.
So I think we see it
well in the context
of the Muslim threat in this
country, or the manufacturing
that President Trump has done so
powerfully of a Muslim threat--
I mean, during the campaign,
during his administration--
or the caravans, right?
I mean, it's the same
manufacturing of a threat--
the threat of this
invasion by persons
coming from Latin America.
And it fits, though.
So I think it's
important to emphasize
that it is an illusion-- that it
is created in order to then get
this way of governing going
that has these consequences.
I think, though, in relationship
to what we were just
talking about in terms of
the racial dimension of all
of this, it's also
important to understand how
much of an investment this is--
how much of a political
economy surrounds
these ways of transforming
populations into threats.
And I was just thinking,
for instance, of--
I've been thinking and reading
a lot recently about the Bronx
120 in New York, which
was this large gang
raid in a public housing
facility in the Bronx
where they arrested
120 young men.
I don't know the
gender breakdown.
It was predominantly young men.
I don't know how many
women were swept up.
And of course, it was
all persons of color.
Or in the kind of
stash house setups
that the FBI set up in
Chicago, where they basically
were entrapping young guys
to go after to take over
an alleged stash house
where there was drugs.
All of that is an incredible
investment on our part.
It costs a lot of money
to do all of that.
We're transforming
individuals into persons
who are then incarcerated.
It requires informants.
It requires paying people.
It requires setup jobs.
It requires setting up the
stash house, et cetera.
It's an enormous
amount of investment
in order to transform someone
into somebody who you then
incarcerate, which itself is an
enormous amount of investment.
And it's a total
political economy
which could be used in a
completely different way.
All of that work, all
of that investment,
could be funneled into education
or other ways to help persons,
rather than to punish them.
And that dimension seems
really important to me.
But it ties, of course, to the
question that what we're doing
is we're creating this notion
of dangerous individuals
who then serve as a way to
legitimate the social order
that we're creating
in this country.
CHRISTOPHER BERK:
So actually, rather
than having you guys respond
to that particular question,
I know those in the audience
are very excited to ask
you guys questions.
So maybe we'll move to that.
So those that want
questions, I would only
ask that you sort of
say it fairly briefly.
Yes?
AUDIENCE: Thank
you guys so much.
I wonder what you think of these
thoughts and how they tie in.
It strikes me that
there are three
predominant cultural
influences that lead us
to our moment of, you
know, a carceral state that
persists, but with
certain avenues
in which reform has taken place.
And the three
influences that I see
as predominant are, number one,
the fact that the opioid crisis
is affecting and killing
rural white Americans too.
So that's led to reform when
it comes to our drug war,
and it ties in with, like,
Derrick Bell's interest
convergence theory, saying that
powerful, white America will
only do things that incidentally
help black America when
white America is also hurt.
So that's one influence.
The other is the ubiquity of
cell phones and cell phone
video cameras.
So we see this with respect
to Black Lives Matter,
and that may tie in to
Vesla's observation--
that, you know, this is
where conservatives fall out
of the coalition, because
you look at a video
and different people from
different cultural frameworks
see different things
in those videos
and react to it differently.
But to the extent that you
see energy for-- insufficient
though it may bee--
policing reform, it's
because stories are made real
and they're made vibrant.
They're made vivid.
The third influence is DNA
testing and exonerations.
And this was sort
of at the forefront
going back even 15 to 20 years--
bringing exonerations
to the forefront,
innocence and the innocence
movement had tack-on reform.
It caused reform
energy with respect
to things like
capital punishment.
And I think you could even
tie in their bail reform.
The reason why there's
coalitions building around bail
reform is because we
say, well, you know,
maybe people are
innocent, right?
So now, if we take these
influences as real--
and I'm sure there are others--
I think it's as important to
ask where the shadows cast
by these influences don't fall.
And so this ties in
with what Bernard said.
Like, what do we
just not talk about?
And I think one of the biggest
things that we don't talk
about-- notwithstanding the
fact that it's one of the most
reprehensible facets
of our carceral state--
is solitary confinement, because
when you talk about innocence,
you don't necessarily talk
about solitary confinement.
When you talk about cell
phones and police misconduct,
you don't talk about
solitary confinement.
And when you talk about
the opioid epidemic
and the drug war
more generally, you
don't talk about
solitary confinement.
And it's because it's not vivid.
It's because it's hidden.
So maybe I want to shine a
light on solitary confinement
and say, do you see
reform energy there?
What would it take to generate
reform energy in that space?
HEATHER ANN THOMPSON: I'd
like to respond to that,
because the central thread
connecting all of the things
that you talked
about is visibility--
making things visible, that
ordinary American voters,
whoever they are,
when they see them--
when they see what's
done in their name
in the criminal justice system--
if they have any
decency at their core,
they're appalled by it.
And so I think that that project
of making carcerality visible
is a key component of--
I know-- what we all do, and
I'm sure those of you do.
And it has enormous power.
And so certainly for
solitary, making that visible
is essential--
that one of the reasons why it's
allowed to be as heinous as it
is is precisely by its nature.
It is the least visible
element of carceral control.
So on the one hand,
I just want to share
that for me that project of
making carceral abuse visible--
it energizes me, as I
know it does all of us.
It makes it feel like
there might be traction
even if there isn't traction.
It makes us feel like
we're doing something.
And I think we should do that.
And I think it does make
a difference in real time,
in real people's lives.
I know that at the
community level, when people
see what goes on in here on
Valley Women's Prison in Ann
Arbor, ordinary Ann Arbor
citizens are appalled,
and they have been moved to act.
And the same is true in
all those other instances
that you mentioned.
Not to put a damper
on this, but I also
think we have to struggle
with something much,
much more damning
about all of this,
and it goes to this heart
of this question of reform
versus abolition,
which is, if you
look over the course
of American history,
when is carcerality employed?
When is it marshaled?
When is it put into the
ether as the go-to solution
to public problems?
And in every single case,
while it is articulated
as criminality and as
crime, in every case
it response to challenges to
the social and economic order--
racial primarily, but not
just racial, also gender.
So for example, Scott Stern has
this really fascinating book
on the way in which women
are criminalized for having
venereal disease, whether
they did or they didn't.
I mean, at every moment
when gender relations are
challenged, race
relations are challenged,
and economic relations.
So I'm also by training
a labor historian.
So at every moment when
capital was challenged,
carcerality is the go-to way
of maintaining white privilege,
the privilege of capital,
and gender privilege--
the privilege of men.
So if that's true, then that
means that actually carcerality
is fundamental to our liberal
capitalist democracy-- not
incidental, not coincidental.
And that is so
deeply disturbing,
it's actually something that
I'm working on in an article
right now.
And I struggle with this,
because if it's true--
and I suspect it is--
then it isn't just even a
question of prison abolition.
It's actually, you can't
have anything other
than this outcome we keep
having again and again
and again if we're going to have
a liberal, capitalist, largely
male and white-dominated state.
And so the visibility--
I think we should do it.
We're going to do it.
We must do it.
It's an ethical
imperative to do it,
but I am deeply worried about
its limitations for the reasons
that I just laid out
as a historian, which
is damn depressing.
VESLA MAE WEAVER: Yeah.
I want to two-finger
that and say
that we have this distorted
imagination of our past
as not being bad.
HEATHER ANN THOMPSON: Jesus,
but fundamentally it is.
VESLA MAE WEAVER: I mean,
among the biggest observers
of American democracy,
this was not lost on them.
HEATHER ANN THOMPSON: Exactly.
VESLA MAE WEAVER:
And yet, somehow
in our contemporary scholarship,
with many exceptions noted,
there tends not to be this
recognition that, like, you
know, the slave patrol
became the police.
So I was looking
through my phone,
here, because just the
other day I came across--
and this is to make the
point that it's not just
our own responses
to pressures on--
you know, to
expansions of people
always responding
in carceral ways--
in ways that criminalize and
invoke early law and order
kinds of justifications
for our response.
But in the UK, The
Abolition Act of 1833,
which abolished slavery in
most of the British Empire--
an ordering council is
circulated in October
as a model for all
Crown colonies,
and the colonial
secretary, Lord Stanley,
writes, "An effective
police establishment
is of the very essence
of the whole measure."
There it is.
HEATHER ANN THOMPSON: Yeah.
Which is which is why
in a prison reform
context, when we say,
imagine what we could do
with those dollars otherwise--
as you just said, Bernard.
I imagine that all the time,
and I push people to imagine it.
But we won't do it,
because actually,
if we used all those
dollars otherwise,
then it would completely alter
power relations in this country
and the police are the ones
that keep that as it is.
VESLA MAE WEAVER:
Who was it, was
it Eldridge Cleaver that said,
when all else fails in America
they call out the police?
HEATHER ANN THOMPSON: Mm-hmm.
VESLA MAE WEAVER: Right.
And so, you know, that's just a
way of saying yes to everything
Heather said, but
it's why my reform
position, or my abolitionist
position is that--
and from the vantage point of
a political scientist-- what
does it mean to
advance new relations
between American citizens
and their government?
And the first part of
that was recognizing
that in race-class
subjugated communities,
government was the police.
Government was not city
council, political parties.
You know, government is the
Bermuda Triangle of police,
jails, the courts, and prisons.
And so what does it mean?
Once you recognize
that, how do we
come up with a conception
of state-citizen relations
that dismantles
that-- that advances
a new conception of what
relations between citizens
and their government
should look like?
And you know, on your point
about the opioid crisis,
and the racial
politics of how we
have responded in very different
ways to different crises--
this is not lost on race-class
subjugated communities.
They know full
well that when they
were enduring things
in the '70s and '80s,
their government did
not come to their aid.
It repressed them.
It criminalized them.
It used that same
criminal system
to extract enormous amounts of
wealth from their communities.
And I'll just read
this one transcripts
where somebody is articulating
what my colleague Tracey
Meares and I call
distorted responsiveness--
that in these communities
what they are witnessing
from government is
what we theorize
is distorted responsiveness.
And he says, "But now it moved
out to the white community."
And he's talking
about addiction.
"If your child is an
addict, it will be no harm.
Go to the nearest
fire department
and they will help you.
Excuse me, 15 years ago you
didn't say nothing about that.
In Maryland--" And he
names the richest counties.
"You have one of the
richest counties--
Potomac, Bethesda, Annapolis.
Now it's out there, and it's,
oh my god, my kids are on opium.
They do.
They've been stealing my
stuff from the cabinet.
Uh-oh, I'm one too.
I've been taking it also.
Now I'm addicted.
Well, who's going to help you?
[MIMICS TRUMPETS] We're
going to help you.
The government's going
to give you money for it.
Well, 15 years ago in
the black community,
we came to you for money.
You said, it's an epidemic.
Um, we'll see what we can do.
As long as it's here,
it's OK, but it get out
there to your children, oh no.
To your schools, oh no.
And how did it get there?
Those same kids
came into the city.
Now, we go out there,
we get arrested.
You know that.
We out of place.
They come to the city,
they get Carte Blanche.
Everything gets
taken care of when
it hits the money community."
In other words,
they are theorizing
the responsiveness of the state
to their public health crises.
And you know, the
crisis hit Baltimore
before it hit any of
these rural areas.
BERNARD E. HARCOURT: And
just one quick thought.
So thanks, Josh, for
kind of bringing us
into the prison
within the prison--
the solitary confinement, the
extremes of supermax facilities
and how hidden they are.
Just to connect it to the points
that Vesla and Heather were
making about the larger social
order, or kind of the way
in which we need to think
about abolition in terms
of the larger social order.
As you were talking,
and Heather,
as you were
introducing that idea,
I was thinking of this passage
from Moden and Harney's
The Undercommons when
they talk about abolition.
And they talk about not just
abolishing the institution.
So here, it would be kind
of not just abolishing
solitary confinement, or
even abolishing the prison,
but dismantling the
society that made
those institutions possible.
HEATHER ANN THOMPSON: Exactly.
BERNARD E. HARCOURT: And so
that's what I heard in Heather.
They write, quote, "Not so
much the abolition of prisons,
but the abolition of a society
that could have prisons,
that could have slavery.
And therefore, not abolition
as the elimination of anything,
but abolition as the
founding of a new society."
So yeah, I think
those tie directly
to these larger issues of--
HEATHER ANN THOMPSON:
Which the Republican state
senators will not sign up for.
BERNARD E. HARCOURT: No.
HEATHER ANN THOMPSON: And that's
the Achilles heel of the prison
reform moment of today.
BERNARD E. HARCOURT: Right.
yeah.
CHRISTOPHER BERK: In order
to get more questions
into the conversation, and more
voices in the conversation,
maybe let's take a couple
of questions at once.
So in the middle, and then--
AUDIENCE: Thank you.
Thank you for this
wonderful panel.
Thank you for putting
this together.
I really appreciate the
emphasis on taking seriously
subjugated peoples
as theoreticians,
and thinking about what
would come after abolition.
So I'm curious as to how
the incarcerated people
that you've interacted with--
how they have envisioned
alternative versions
of justice.
What do those look like?
I thought it was very
fascinating, Dr. Thompson, when
you said many people
are just asking
for basic humanity, which is
often in the form of reforms,
whereas abolitionists are kind
of very skeptical of reforms.
So taking them seriously,
what does that look?
And then, also quickly
for Dr. Weaver,
you talked about
kind of intervening
in the relationship
between the state
and black and brown children--
intervening before their
first encounter with the state
is the police.
What would that look like?
I'll stop there.
AUDIENCE: Hey, guys.
Thank you for this panel.
It's been really great.
I'm really interested
in reparations,
and I want to see
if I could bring
that to bear on this
discussion on prison reform.
So what do you
guys think is owed
to victims of the drug war--
specifically,
individuals convicted
of drug offenses
living in states where
that drug has been legalized?
And another related
question would
be, when talking
about compensation,
how should these individuals--
these victims of the drug war--
be distinguished from
individuals wrongly convicted
of a crime, and how
should that distinction
inform different compensation
plans for these two groups?
AUDIENCE: Thank you.
So it seems like there are a
lot of similarities between sort
of the prison abolition movement
and also the modern anti-sexual
assault movement--
in their grassroots nature,
the level of attention
they receive in
academia, and also
the political leanings of
the people that they attract.
They also seem sort of
diametrically opposed,
in that one argues that the
state shouldn't sit in judgment
of its citizens and be in the
business of confining them,
and the other one sort
of laments the fact
that it frequently
fails to do just that--
at least with respect
to sexual assault.
So my question is, one, have
I mischaracterized either
of these?
If I have, please correct me.
But if I haven't, how
should these two movements
interact ideally?
HEATHER ANN THOMPSON:
Boy, great question.
You want us to take
some of those now?
CHRISTOPHER BERK:
Yeah, you guys should.
HEATHER ANN THOMPSON: I guess
I'll start just really quickly.
To your question about
what do people imagine,
obviously this is a
complicated question.
It depends who the people are.
But I will tell you that
in myriad recent events--
convenings-- that I've attended
where there have been prison
abolitionists, so
defined, and then there
have been impacted communities.
And everybody's
on the same panel
or in the same
room discussing it,
and there are huge tensions.
And so what do people want?
How do they articulate it?
To simplify it, or to
characterize everybody
as one person, which
is difficult to do,
they want to access
the state again.
They want the same
resources that the state
offers other communities,
rather than having
the state resources
always be offered them
in a punitive fashion.
So rather than overthrow
the state, I hear time
and again, you know, no,
we need free college.
We need better public schools.
We need better public health.
We need access to
drug treatment.
In other words, the state needs
to become more responsive.
And that, rather than the
state itself is the problem,
there's almost a--
the police are the problem,
and prisons are the problem,
but the state itself--
the failing of the
state is to not
give its resources equitably.
So a solution would be, let's
have the state distribute
those resources equitably.
And it's hard to know
what to think about that,
because you're talking about
people who have absolutely
been robbed of all those
resources of the state,
and so that's an absolutely
logical conclusion to draw.
You look at communities
that have benefited
from myriad state resources,
and it's a logical thing
to say, well, god, our lives
would be so much better
if we merely had access
to the same state
resources everyone else has.
So how that circles the
square with abolition,
it's hard sometimes, because
abolitionists are saying,
no, the state is the
origin of the oppression.
And I'm going to leave
the reparations question
because I'm talking
too much, and I
know that you have other
things to say about that.
But on the question
of, essentially,
the Me Too movement
versus prison abolition--
I don't know the
answer about how
to circle that square
either, but I can tell you
that it's a very slippery
slope, at least in the way
it's worked itself
out on my campus.
Rather than deal with questions
of gender and patriarchy
and oppression and sexual
violence, what's happened is we
are doubling down on
felony disclosure policies
on my campus.
We're having police visit all
of our department meetings
to talk about the importance
of reporting to the police.
We are militarizing
our campus, and we
are doing it in the name of
taking on sexual assaults.
So that's a major,
major problem right now,
but it shouldn't surprise
us, because historically we
know that that's
exactly what happened
after the feminist
movement calling attention
to domestic violence,
and again, that
being taken up as a charge
to further criminalize,
rather than thinking about
the origin story, which
is a question about patriarchy
and violence, not a question
about criminalization.
I'll leave it there.
VESLA MAE WEAVER: Well,
I'm writing a whole book
on how people who have grown
up in communities where
surveillance by the police
is regular and routine,
and it is a key moment--
a key defining moment of civic
worth and democratic learning.
And so I won't be able to
say everything that they say,
but I do think it's interesting
as a political scientist.
I went into this
work thinking, OK,
all of the things that animate
our scholarly corpus should
be found in these
dialogues, right?
People should recourse to themes
of greater representation,
greater political
inclusion, more votes, more
access to the halls
of power, more people
that look like them in
authority positions.
And I was struck,
because that is neither
lexically present
in these dialogues,
nor is it something like
an anchor that's hanging
over the whole conversations.
And we find several things.
So if not that--
if not a representational
relationship-- what, then?
They want to be
known by the state.
They want recognition-- not
necessarily representation,
recognition.
When you come into
my neighborhood,
chop it up with me.
Know who I am and my full self.
Don't reduce me to what you've
seen on a stereotypical media
portrayal.
They want to be
regarded in the way
that they see themselves
and their communities.
They want to be seen
as communities that do
a lot of other things besides.
So I'm working with--
I'm actually pretending like
I'm a political theorist
and diving into the
recognition literature.
They also-- I mean,
I think it's so
interesting in political
science how often we talk about,
like, we need a greater
connection to government.
So when people's preferences
don't become policy outcomes,
that's a recipe for
oligarchy-- a government skewed
to the rich, you know?
And that's the kind of,
like, chorus in our field.
No.
They don't want a tighter
connection to government.
In fact, we see a lot of
community control discourses.
We want control over
in our institutions.
We don't just want a few
more black cops on the force,
we want to be able to
say what that force does
in our communities.
And then, on your question about
what would re-visioning youth
contact--
you know, I recently
wrote a policy brief
about this that will
be coming out soon.
And what I wrote is, undermining
police contact with youth
is a backstop.
We spend the first
part of the article
saying we need a
radical reduction
in police-youth contact.
We need a new norm that
it is inappropriate--
and you can actually look
to de-institutionalization
of youth as a model.
This nation shuttered
youth prisons.
We cut them by half.
Everything you say about
incarceration rates not
declining is not true
of youth incarceration.
It happened with little fanfare.
You probably don't
know what happened.
Every single state started
to close their youth prisons.
They did this based on
the logic that adolescence
is a different
developmental stage,
and that adolescents
aren't fully capable.
They're more likely to
engage in risky behavior.
They're more prone
to peer influence.
And we have all these
kind of safeguards
within the criminal
justice system
in how to deal with youth.
They have far more
protections, as you well know.
We have none of
those protections
when it comes to policing.
If police want to
approach my child,
they can approach them in
the same exact way they
would approach a 35-year-old.
I think there is a huge
opportunity to intervene there.
But that's just the first step--
prevent youth contact
in the first place.
And the second is to
promote attachment
to institutions reinforcing
citizenship and civic health.
We now know that
youth of color live
in what's called civic
deserts, where they have
few opportunities to get
engaged in political life
and civic life.
Community centers have
been on the decline.
There are few public spaces.
And one of my
favorite books of late
is by Eric Klinenberg,
Palaces for the People, which
is all about how--
I mean, he has a really
interesting finding.
He looks at the
Chicago heat wave
and basically finds that
the same neighborhoods
had radically different
morbidity rates.
And the one kind
of pivotal factor
was the presence of social
and civic infrastructure.
Why not reroute some
of those resources that
are going towards surveillance
of youth towards attachment
with pro-civic
citizenship-enhancing
government contacts?
Why is a 13-year-old's
first experience
of an authority through a
surveillance kind of logic?
They have many.
And so anyway, we
draw on a few what
we think of as promising
initial examples.
But I'll be honest with
you, there's not many
that have really tried to go
that next step of saying, OK,
once we've reduced this
and get rid of surveillance
logics vis a vis the youth,
what do we replace it with?
What do we put in its stead?
I mean, I'm a big fan
of, like, youth councils.
Even youth religious
organizations
are a powerful way of youth
activating and becoming
democratic agents long
before they can vote,
and being given lessons
that their voice matters
in political life, and
they have a lot to say.
You know, all the
youthful movements--
We Charge Genocide, Black
Lives Matter chapters,
Million Hoodies for Justice--
I'm waiting for the empirical
study to come out on this--
the Let Us Breathe
Collective in Chicago.
They took youth who were
poised to become disaffected
and alienated because of all
these adversarial contacts
with government and instead
made custodial relations
the pivot point for
their activation
as democratic citizens, and as
knowledgeable, sophisticated,
powerful actors who could do
the work of re-imagining what
a new society that has different
relations between state
and citizen would look like.
And I would love
to see, like, what
were the effects for
long-term civic engagement.
Anyway, yeah.
And I am sorry that I'm
punting on your very, very--
I'm hoping Bernard will answer.
BERNARD E. HARCOURT: Yeah, OK.
Let me get to that one.
And just to follow
up, the other place
where we saw a radical
transformation, of course,
is de-institutionalization
of mental hospitals.
And that entire
experience unfortunately
provides us with
a lot of failures
that we can learn from,
but it's another place
where I think that we
can explore as a way
to think about what happens
when there is abolition,
because in fact we really did
abolish a structure that was
practically the size
of mass incarceration
today when we did
that in the 1960s.
All right, very quickly, then.
Mostly I'm just going to
give reading suggestions,
because other people have
thought about this more.
In terms of the relationship
between abolition
and sexual assault,
I would recommend
Allegra McLeod's article,
"Prison, Abolition,
and Grounded Justice,"
where she deals explicitly
with the question of
rape and sexual assault
and how to think about it.
It's in the ACLU
Law Review, 2015.
She does a really
good job there.
We were talking about the
fact that there really
isn't necessarily a reason
why we think of sexual assault
and rape punishment as
being usefully accounted
for through incarceration
and prison processes.
She also has a
chapter coming out
in a book I'm editing
with Didier Fassin called
A Time for Critique.
She has a chapter in
there on law and critique
in which she explores
the incident--
the charge of sexual assault
within the Black Youth Project
100 organization,
which they decided
to deal with it internally
rather than go to the police
or use the carceral system.
And so they kind of put
in place their own way
of resolving that.
She writes about it at
length in that chapter,
and that is another useful way
to think about it, I think.
In terms of reparations, my
colleague, Katherine Franke,
has just published a book which
might be helpful on this called
Repair: Redeeming the Promise
of Abolition, which it's either
out today or very
shortly, but my phone
is not helping with data.
And I think there might be
some helpful ways of thinking
about reparations there.
I mean, the question
that you raise
is particularly interesting
as to whether or not
there should be a separate
logic of reparation
in the case of
what is effectively
a kind of retroactive
unconstitutionality, in a way,
right?
VESLA MAE WEAVER: Mm-hmm.
BERNARD E. HARCOURT: We're
abolishing crimes, in a sense.
We're saying that something
that was criminalized
should not have been a crime.
It's now fully lawful act.
And you know, in law there
are different standards that
apply to those issues--
those questions
of retroactivity.
Different rules often
apply when you're
dealing with something
that shouldn't
have been a crime
in the first place,
and we've recognized that now.
You know, it's
hard, though, to--
I mean, there's an extra
hook there, I think,
but that hook seems to
me just as compelling,
for instance, with
transformation
of crack sentencing--
from the 100 to 1 to
the 18 to 1 ratios.
There, too, it's not like
you've decriminalized something,
but you've had some social
recognition much too late,
after so much damage, and not
sufficiently that the 100 to 1
crack disparity-- crack to
powder cocaine disparities--
should never have existed.
And so we're kind
of like slicing here
to the ordinary case that
doesn't have that hook,
but that seems equally
compelling to me--
that someone's life
has been ruined.
You know, the Bronx 120 has been
ruined because the approach was
to criminalize and throw--
you know, use RICO
conspiracy charges as a way
to deal with social
ordering, basically.
So on the one hand,
I think that there's
both an attraction and a danger
to a distinguishing of, say,
marijuana convictions,
because it renders--
it's the same double-edged sword
that we have with innocence
in the death penalty or in
the criminal justice arena,
because when you focus
on innocence, then
it has this kind of
negative impact on all
of my other clients
who aren't innocent,
but who deserve
the same treatment.
You know what I mean?
HEATHER ANN THOMPSON: Can I
also add to that-- this question
about reparations?
Because it was making
me think about--
so this is not answering your
question about what should we
do, but I want to
talk about the reason
implicit in your question,
is that we know that
even though things
that were illegal
are now not illegal, that
those people who are still
in prison-- so think about
Colorado, for example.
Why is there not an immediate
move to let them out, right?
So let's forget about
what we're going
to do when we do
let them out just
for the sake of this moment.
So we don't immediately
let them out.
And similarly after
Miller versus Alabama,
you've got all of these
children that we have now
decided have the
opportunity for parole.
It's unconstitutional to
deny them a chance at parole,
so why don't we immediately
re-sentence all of these kids?
That goes to the heart of what
I was saying earlier, which
is that it forces us to look
at what the carceral state is
really about.
If you believe it's about
wrongdoing and crime,
then those moments, all you can
do is shake your head and say,
it's just logical.
If marijuana is
no longer a crime,
why aren't we letting
these people out?
If you understand the carceral
state to be about racial order
and about class privilege,
then it is absolutely logical
that marijuana
becomes legal, but you
will do everything in your power
to keep black dudes in prison.
Or in Detroit, where we have
almost 400 children serving
life sentences-- overwhelmingly
children of color--
it makes sense why we don't
automatically resentence them.
The prosecutors are
doing everything
in their power to keep those
black and brown children
in prison for life.
So again, it's this underside
of reform where the thing
about a successful reform--
which we welcome,
and believe me,
I've been at plenty
of these hearings
where juvenile lifers
get re-sentenced,
and it's the most beautiful
thing I've ever seen.
And you know, it's amazing.
So don't underestimate it.
But it lays bare what
this is really about.
It lays bare what
the limitations are.
And so I still am going
to support everything
that would allow me to take
a child who served 49 years
and let them come home,
because they're now not
even a child anymore.
But damn, when you
look at those cases,
you can't even imagine for half
a second this is about crime.
This is about racial order
and about class order.
And that, then,
means that we're only
going to be able to do so
much, but we should do it.
CHRISTOPHER BERK: I can't
think of a better way
to end the conversation.
And I'll echo Bernard's call to
all increase our reading list.
And among those things
that you should of course
read are their books--
most recently, The
Counterrevolution Blood
in the Water, and Vesla,
you must have a bunch,
but Arresting Citizenship
being among a host
that you should check out.
And so with that, if you'd join
me in thanking our panelists.
HEATHER ANN THOMPSON: Thank you.
[APPLAUSE]
