Abstract

Although legal academia has recently turned its attention towards abolitionism, there is disagreement as to what abolitionism is and widespread skepticism exists about its plausibility.  

This Article aims to make two contributions to discussions about penal abolitionism. First, it provides a novel theorization of different kinds of abolitionism. Second, it argues that, contrary to widespread skepticism, the case in favor of complete and short-term decarceration is extremely difficult to resist. This is true even accounting for the problem of “the dangerous few,” that is, the problem of releasing individuals who might potentially harm others. This problem has been discussed but not satisfactorily resolved by the relevant literature up to this point.

Part I of the Article discusses what it means to be an abolitionist. It distinguishes abolitionism from minimalism and then provides three categorizations that are useful to understand the abolitionist movement. Part II argues that complete and short-term decarceration (that is, abolitionism now, or what the Article refers to as “non-ideal prison abolitionism”) does not deserve the skepticism with which it is often met.  

The Article starts from two assumptions, which make the argument in favor of decarceration harder. If prison abolitionism is plausible under these exacting conditions, the case presented in the Article becomes stronger. The first assumption is that—even though there is a relatively widespread consensus among scholars that this assumption is at least partially false—all individuals currently incarcerated in the U.S. have been justly punished and the length of their incarceration is proportionate. The second assumption is that imprisonment could be justified in ideal conditions, that is, in a just society where prisons are safe, treat individuals humanely, and provide adequate access to physical and mental health resources, as well as to educational and recreational activities. 

U.S. prisons are, however, generally far from being “ideal prisons.” They thus impose further harmful effects on those who are imprisoned, which have been extensively documented in the literature and are canvassed in the Article. The Article then argues that, given how unfeasible it is to fix prisons in the short term so that they achieve their “ideal form,” the case in favor of decarceration is extremely difficult to resist, even accounting for the problem of “the dangerous few.”  

There are two strategies that might be used to justify the continued incarceration of the so-called “dangerous few.” First, one could argue that continued incarceration of the dangerous few is justified because it is necessary to defend innocent parties from serious harm. Second, one could argue that continued incarceration of the dangerous few can be justified because (1) they committed a criminal offense in the past and (2) their incarceration contributes to eliminating harm to innocent parties by deterring crime. However, the conditions required for each justification are difficult to support. If we account for this uncertainty, that is, the fact that we cannot be sure that these justifications can or will succeed, continued incarceration becomes impermissible. In fewer words, we should close prisons.

This might seem like a radical conclusion. However, there is no need to embrace a radical vision of the world to embrace it. This conclusion follows, in fact, from basic liberal commitments that reasonable people already support. Ultimately, it might be the case that we should all be (non-ideal) prison abolitionists. 

Keywords

Prieto, Marcela Prieto Rudolphy, Negative Abolitionism, Positive Abolitionism, Ideal Abolitionism, Non-Ideal Abolitionism, Prison Abolitionism, Imprisonment, The Dangerous Few, Lesser-Evil Justifications, Moral Risk, Punishment, Police Abolitionism, Prison-Industrial Complex Abolitionism, Anticipatory Defensive Harm, Self-Defense, Abolitionism Now