On today’s podcast my guest is, once again, Georgetown Law Professor, MSNBC Legal Anylyst and Crime Story Consulting Editor, Paul Butler. In our conversation, Paul and I discuss the idea of prison abolition, its historical roots in the movement for black lives, and why he has chosen to study it as a scholar, and promote it as an advocate.
Paul Butler, thank you for joining us again.
Hey, Kary. It’s great to be here as always.
Today, I’d like to explore a subject with you that we’ve touched upon in the past, but I’d like to try to do a deep dive.
We’ve heard the word abolition used frequently over the past few months, but most of that has had to do with police abolition. I’d like to explore with you today, the concept of and the movement around prison abolition. Could you begin by telling me what prompted your interest in pursuing this as an area of scholarship, and then tell me a bit about what your findings have been as you’ve studied the movement?
So I knew that Angela Davis, the famous political activists, had written a book about abolition. I thought it was utopian, and as a legal scholar and former prosecutor, it seemed impractical.
My colleague at Georgetown, Allegra McLeod, who’s a brilliant legal scholar and political theorist, presented a work in progress to our faculty about prison abolition. And she presented the paper during an earlier time where police violence was also a big part of the news cycle, and there were high profile cases of police officers who killed African Americans, and there was a sense among many in the community that those officers should be prosecuted.
And when I heard my colleague Allegra McLeod’s paper presented on abolition, those cases were the first thing that came to my mind. And I thought, “Well, gee, it’s funny how just when we’re trying to bring criminal police officers to justice, that prison abolition becomes a thing.” And even at that point, to say it was a thing would have been an overstatement. But it seemed discordant with the times, in a sense to even be thinking about prison abolition when many people seem focused on using the criminal legal process as an apparatus for racial justice.
So I heard it and it sounded crazy, which I think is the way that most people respond when they hear about the concept of abolishing prison. But as I thought about it more, it actually seemed consistent with what my research as a scholar, my experience as a prosecutor, and my life experience as an African American man had taught me. I was getting calls from people in the Movement for Black Lives about ways that I could assist in getting officers prosecuted. And sometimes it was in specific cases, and other times it was more general. Well, what are the barriers to prosecution? And I talked about things like grand juries and prosecutors having so much discretion.
I had some concerns about this project of using the criminal legal process to bring about racial justice, and saw some irony in the fact that people who were part of this extraordinarily important and historic Movement for Black Lives still had enough faith or confidence in the criminal legal process that they thought that if prosecutors and police have more power to go after police officers, that would enhance the whole racial justice project. I was doubtful, and in part, my doubt was based on what I learned from some feminist legal scholars. People like Janet Halley at Harvard Law School, Aya Gruber at the University of Colorado, who were critics of what they called carceral feminism.
And by carceral feminism, they were referring to this move by some feminists in the 1970s and 80s to try to help women who’d been victims of sexual violence by making it easier for prosecutors to convict men of rape. So, that move was quite successful in that it brought about the end of corroboration requirements. It established rape shield rules so that women who had been victims of violence couldn’t be questioned about sex they had outside of the accused. That, that project had been successful and that it led to reforms of rape law that made it easier for prosecutors to bring cases against accused rapists.
At the same time, these feminists had identified significant problems with using the criminal legal process to bring about gender justice. The biggest problem, and this also relates to prison abolition, is that most people who were victims of sexual violence didn’t call 911. They didn’t seek to invoke the criminal legal process. And so this move to protect women by enhancing police and prosecutor power turned out not to have that effect. I thought that that was a useful story to think about whether enhancing police and prosecutor power, even if the enhancement was designed to make it easier to bring criminal and killer police officers to justice, even if that was the goal, whether the criminal legal process could ever be entrusted to do racial justice work.
Got it. What were the steps in your thinking that lead you down the road of pursuing prison abolition as an area of scholarship? When did you decide to, kind of, go down that road, and how did you start?
My colleague, Allegro McLeod, is brilliant. She wrote the first major legal scholarship Law Review article on it. She’s damn good. The article was very persuasive, in part because it starts out by saying that abolition does not mean that every prison door is open tomorrow, that every single inmate gets to come home tomorrow. Think of abolition as a process of gradual decarceration. And my colleague would be the first to say that her scholarship is informed by activists, some scholars, activists, people like Ruth Gilmore and Angela Davis who really are the creators of the American abolition project that’s going on now.
It’s got this proud history. So we can look at people like Emma Goldman back in the 1920s, the socialist who was a major advocate of abolition, but in terms of the prominence that abolition has now, it really is this Black Feminist Project, mostly championed at the start by again, Ruthie Gilmore, Angela Davis, the people who created the Movement for Black Lives who often describe themselves as three queer women of color. So, Black Feminist Project, activist project that my colleague, Allegro McLeod, picks up, writes this very persuasive article. And again, starts out by saying what it’s not.
It’s not the idea that everybody comes home tomorrow. So gradual decarceration means we think, with an eye on public safety, how many people can come home without any detrimental impact on communities? And the thing that everyone’s concerned about is, if people aren’t locked up, are they going to go around committing crimes? Will that make us less safe? That’s when my experience as a former prosecutor kicked in. I remember all the discretion that I had in my two very different roles.
So, one role when I was a prosecutor was I was detailed to the local prosecutor’s office in DC where I did street crime; drugs, guns, minor assaults. When I graduated and went to the United States Department of Justice and focused on public corruption, I had what you’d call high level cases, including one against a US senator. When I think about all of those cases, especially at the Justice Department, but even when I was essentialy a local DA, we declined way more cases than we brought. Any police officer will tell you, there’s plenty of people who she has probable cause to arrest, but she doesn’t.
When I was working at the Justice Department, we had to do what’s called a declination whenever we decided not to prosecute anymore, which was a memo where we explained our reasons. And the reasons were rarely that we didn’t think that the person was guilty. They were usually that we didn’t think it was an appropriate use of prosecutorial resources, or it would be too hard to get a conviction from a jury, even if the person actually was guilty. Or sometimes, in cases with victims when I was doing the local prosecution, because the victim didn’t want to go forward.
And, the bottom line there was if the scariest thing about prison abolition is the idea of all of these criminals running around free, that’s the world that we live in right now. I understood that based on my experience as a prosecutor, and not bringing cases against many more people than I brought cases against. And then when I started to become more interested in abolition, from a practical perspective, how it would work, I did what it’s ideal for everybody to do when we think about criminal policy, to look at the data, to look at evidence based practices as opposed to emotional responses.
So when I looked at the data about when people experience harm, what they do and what happens, I was shocked at the relatively minor role that police and prosecutors and incarceration play. So the clearance rate is the percentage of crimes in which the police believe that they found the person who committed the crime. It doesn’t mean that the person is convicted, it just means that the cops think they found the bad guy. Homicide has the highest clearance rate of any crime. The clearance rate for homicide is 60%. That means that 40% of people literally get away with murder and manslaughter. That’s the highest for the majority of crimes including the majority of violent crimes, the clearance rate is way lower than 50%.
In Chicago, if you shoot someone and you don’t kill them, you get away with it 80% of the time. The clearance rate for shootings in Chicago that don’t result in deaths is under 20%. Famously, for people who are the victims of sexual violence, especially women and children, those crimes are not reported to the police. When you ask women who don’t report, why not, they say it’s because they don’t think that their case is going to be taken seriously, or the result of the criminal legal process, locking somebody up, isn’t going to do them any good. It’s not what they’re looking for. That turns out to be true for survivors of any kind of violent crime.
The majority don’t dial 911. They don’t seek a police and prosecution response, and it’s for those reasons; either they don’t think their case is going to be taken seriously, or they don’t think that getting somebody locked up is going to address their injury in a way that makes them feel whole or better. And so then, what I became interested in is, are there ways that when people have experienced harm, the state can be responsive in a way that makes them feel better? When we ask people what it is that we think incarceration does, what does prison do? I think most people would say that it keeps us safe from people who would harm us if they weren’t locked up. And that it makes people who have caused harm accountable for what they’ve done.
And those of us who worked in the criminal legal process, who’ve been in it, who’ve had family members in it, know that prison doesn’t do either of those things very well. So then, the question is, are there ways that we can accomplish those very worthy goals of being safe, and of making people who cause harm responsible that doesn’t involve locking human beings in a cage? The answer is, yes, there are. So, again, when I thought, looking at the evidence that there are all these myths about what police and prosecutors do that the data suggests, they don’t actually do.
People know that if you call the cops and say your iPhone was stolen, the police are not going to find your iPhone. They’re not even going to look for it in any significant way. And it turns out that unfortunately, that’s not just true about when your iPhone gets stolen, it’s true about most of the other kinds of antisocial conduct that happens to people. And again, if it’s a super serious crime like homicide, my concern isn’t that the police don’t try, it’s that even in that case, when they try, they’re often not successful. And in other cases, they don’t try because they don’t know about it, because the victim doesn’t tell them. Or because if they do know, they’re just not able to solve the case because of all of the other folks not cooperating.
And of course, you have situations where there is a pressure to prosecute someone and convict someone, and that can lead to tunnel vision and wrongful convictions.
Exactly. The stakes of wrongful convictions are extraordinarily high. I just thought, and I still think, as bad as what we’re going through now with this pandemic is, I think it’s reasonable to hope I’m not a scientist, but based on what scientists say that there’s going to be a vaccine and a treatment sooner rather than later. It’s the greatest scientific endeavor, I guess, in history of these great minds working together to find this cure. We will find it. And I think if we can do that, then we can also find a way to have communities be safe, have people who cause harm take responsibility for what they’ve done that doesn’t involve cages. I think we can do that. I know we can do it.
What are some of the ideas for alternatives to putting people in cages for addressing issues like sexual assault, homicide, theft?
Now, there’s a sense that whenever anyone has suffered harm that she wants that guy locked up and put into the jail, and it turns out that’s not true. Obviously, different victims might want different things, but if we expand our lens beyond the United States and look at different countries and different cultures, in most of the world, when someone is harmed, she doesn’t call 911. In a lot of the world, there’s no 911 to call. And in other parts of the world, there’s not the sense that the police and prosecutors are going to be able to do anything that’s important.
When people call 911, the harm has already occurred. So more focus on preventing antisocial conduct is key. And listening to survivors, hearing what they need. The first responsibility of the state is to protect its citizens. When people suffer harm from other individuals, the state is now failing that responsibility. Because, again, most people who suffered harm aren’t going to the state for a response. So if there were approaches that helped better than the punishment approach, I think that more people would avail themselves of an official government response because they would know that would help them heal.
So we can think about what happens in other communities as they come off now in their conversation about defund the police, well, who are you going to call if you don’t call 911? You’re going to call elders? You’re going to call people with spiritual authority and respect in communities? You’re going to call trained professionals like social workers, people who have expertise in dealing with folks in mental health crisis or relationship crisis? You’re going to call medical doctors and therapists? When you listen to victims, often, what they want is the person who caused the harm to understand what he did, and they want him to take steps so that he won’t do this to another person. We know that the cages don’t usually lead to that response.
There are people all over the world and all over the country who are working out ways to get that kind of response. So if we think about people who are likely to be victims of private violence, but who would also have concerns about calling the cops, think about transgender women of color who are often profiled by cops as sex workers, and who are often victims of extraordinary private violence. So they need help from the government, but they don’t trust the cops. Think about people who are undocumented, who are victims of domestic violence. They got to get out of that situation, but in some communities, they feel if they call the police and prosecutors, then they’re going to end up being targets themselves.
So there are a bunch of projects in which folks are trying to think about safety in ways that don’t involve the folks with guns and the cages, and it’s an exciting, creative, imperative effort. And it’s where we’re going. I know it’s where we’re going in part because of how we got here. It’s funny, but prison is actually a liberal reform. The idea of punishing people by incarcerating them was invented in Pennsylvania in the early 1800s. You can go to the first penitentiary in the world in Philly. It’s a museum now devoted to critiquing mass incarceration.
The Eastern State Penitentiary started as a liberal reform. The idea was, if people who committed crimes were put in solitary places, they would be penitent. They’d reflect on the error of their ways, and they would be reformed. The idea was that would be more humane than the way that people were being punished, which was by killing them or harming their bodies, or shaming them in places like stockades, or putting really severe fines on them. So this was seeing incarceration as liberal. It was better, it was more humane.
And, again, if you now go, I encourage anybody listening if you’re in Philly, you got to check this out. Check out the first prison. It’s a wretched place as almost every prison is. It was new, it was an experiment. People from Europe came to see it. Charles Dickens was one of the first. When he left, he said, “This is worse.” He said, “This is worse than killing somebody. This is this slow toll on a psyche, to just have to sit in this box in silence for days and days, and years and years. This is less humane than just taking a life.”
So a number of Europeans and others who came to see this new American experiment were the first abolitionists, and abolition has been around as long as prison has been around. So now, we understand abolition as this amazing Black Feminist Project through people like Angela Davis, Ruthie Gilmore, the people who created the Movement for Black Lives. Earlier incarnations include socialists like Emma Goldman in the 1920s, in the United States. A really important group of Scandinavian sociologists and criminologists in the late 1900s, who were trying to steer places like Norway towards abolition, they didn’t get all the way there. But when we look at places like Norway now, where the maximum sentence for any crime is 21 years, that’s in part a result of people calling for abolition. The 21 years is, in a sense, a compromise.
A lot of folks now say they don’t like the name abolition, just like they don’t like the phrase defund the cops. It’s not good marketing, It is a critique. I happen to disagree with that critique, but I get it. But I do think what the Scandinavian example reveals is not only the rhetorical power of the word abolition, but also as a political device. If someone’s calling for the end of prison, well, then a maximum sentence of 21 years is a compromise, right? It’s a middle ground.
So while I don’t have any illusion that in the next 10 years nobody is going to be locked up, I do think that just as a current project to defund the police has not resulted as a practical matter in any police department being actually defunded, we’ve seen billions of dollars diverted to community based projects. That’s a compromise as a result of this important rhetorical call to defund the police. And I have to hasten to say that many of the people who are leading this effort, say defund means defund. So they’re not all that excited about any compromise. But, again, if we think about incremental progress, in terms of incarceration, abolition isn’t going to happen in the next 10 years. But I do think that reducing prison sentences, alternatives to incarceration are brought about in part as a compromise against what sounds more extreme; abolition of incarceration.
I have two follow-up questions. The first is other countries, other communities like Norway that have put limits on sentencing and that have developed sentencing structures that are far less punitive than the United States, what have they done on the other side, on the restorative side of the equation to try to address the victims’ concerns and the victims’ experience in order to engender greater trust in the system?
And the second question is, I’d like for you to dig a little bit deeper on the narrative strategy in maintaining phrases and supporting phrases and using phrases like abolition, prison abolition, police abolition, defund the police. Why do you believe that as a narrative strategy that it’s important to stake that out as the aspiration, as the goal, as the mission?
So, when we listen to victims, we learn that many if not most, don’t ask for the cops to come, the guy to be locked up, the guy to be put under the jail. What they often hope is that the response will be such that the person who caused the harm won’t harm anybody else, and he’ll understand the injury that he caused. And to the extent that he’s able, he makes up the injury, to the extent that, that’s possible.
When we look at places that have more rehabilitation in their criminal legal process than retribution, if you go to a prison in Norway, a lot of Americans would say this looks more like a college campus. It looks more like a dormitory than it does like a jail cell. What folks in Norway recognize is something that’s also true in the United States, but it doesn’t seem to drive our policy, and that’s the fact that 95% of people who are locked up come home. I’m not talking about Norway, I’m talking about the United States. Even if you look at how long people get locked up for the most severe crimes, for a crime like murder in a lot of jurisdictions, it’s less than 20 years. And again, I’m okay with that. I think that 20 years is a long time for anyone to go to prison. But a lot of people are surprised to hear that.
The point is that since 95% of people come home, we would hope that there’s some intervention when they’re locked up that’s going to help them and us. And what that means is that the facility where they’re locked up should be one that supports the person, that gives her the services that she needs so that when she comes home she can be responsible. And that leads you again, to the cells in Norway that look like a dorm. That’s a reality, but also a simple but different approach to people who have caused harm.
In DC, I’m proud to say that we’re about to pass a law so that not only people who have been convicted of crimes are allowed to vote, that is already the law in the District, but the people who are serving time right now, on election day, will either vote in absentee or be brought to polling places and they’ll vote in person. That’s already the law in some Scandinavian countries. And so again, what they’re doing is not only recognizing the humanity of people who caused harm or committed crimes, but they’re also understanding that if we have concerns about what happens when these people aren’t caged, then the best way to address those concerns is to give those folks the tools that they need, so that they can become responsible, contributing members of society when they come home.
You also asked about what it means to call projects by extreme names like abolition or defund the police?
Yes. And beyond that, what the narrative strategy is, why you believe that it’s important, why that meaning is important.
Narrative strategy sounds like what I imagine is your old job, Kary, where you guys I just see a bunch of suits in meetings talking about marketing strategies and what’s going to go over. And I guess you can’t argue with success if you especially created some brilliant art.
Look, Movement for Black Lives doesn’t work like that. It’s created by, again, these women who are described as three queer women of color. One of their concerns was that in previous movements for racial justice, the leaders were always straight, black men. And when those men were taken out, either killed or discredited, that the movement went away. They didn’t want these women who created the Movement for Black Lives to fall into that trap. So when people will complain now, well, there’s no leaders, we don’t know who to go to for a soundbite from the Movement for Black Lives, that’s intentional. They say we’re not leaderless, we’re leaderfull. Everybody’s a leader.
So it’s true that, again, if you want to ask, well, who should I go to to find out what the strategy from the movement is on abolition, there’s not one person or even necessarily one strategy. Now, if you want a platform that a lot of people in a movement agree on, just google Movement for Black Lives platform. Man, out will come a whole list of demands, ideas, projects, ways to get it done. I’m just…that’s a long-winded way of answering your question because when you talked about strategy, it just sounded planned in a way that I want folks to understand that it’s not necessarily planned. But I do think that there is a consensus that the word abolition does good work.
It does good work in that it ties the project to end prison and incarceration with earlier racial justice projects. And it also nicely, criticizes reform. We didn’t talk about reforming slavery, we talked about abolishing it. We didn’t talk about reforming the old Jim Crow, we talked about abolishing it. And here, the idea is we shouldn’t talk about reforming the new Jim Crow, we should talk about abolishing it. Kary, you’ve been kind enough to have me on to talk about my own work and my book, Chokehold: Policing Black Men, where the idea is the problem with policing isn’t bad apple cops. The problem is the system is working the way it’s supposed to.
The reason why so many police officers get away with violence, and even killing black folks is because it’s legal. It’s police work. And if it ain’t broke, you can’t fix it. The problem with reform is it’s trying to fix something that’s not broke. Abolition communicates all of that in a word. It’s provocative. Defund the police is provocative. I always say if there was a project to defund law professors, I’d be real mad about it. So I get the heat at the same time because it’s provocative, this crazy, fricking idea that we’re just going to not have any money go to policing has been a major part of the news cycle during a pandemic, and during the most powerful racial justice movement in, what? 25, 30 years. Part of the conversation about that movement, about racial justice is now focused on defunding the police.
So, there’s this idea that’s been around for a while, called justice reinvestment. And defund the police means different things to different folks. Again, I can’t emphasize enough to many of the advocates and activists who brought the idea to the forefront, defund the police means defund the police, not give them any money. To other folks though, defund the police means take away some of that money that goes to the men and women in blue and give it to community programs, violence prevention programs, job training, schools. That idea has been around for years. And another phrase, justice reinvestment. Just reinvestment, kind of boring, wonky descriptive, but I don’t know if we’d be having a conversation, even you and I right now, Kary … well, you and I might because we go there. We get wonky, but I don’t know if I’d hear on the national news, on cable news, on radio, on billboards, defund the police. What’s it mean? How would it work? Who’s in favor? I don’t know if we’d be having that same conversation if the phrase was justice reinvestment.
Well, I think in the future when I talk about this, I will talk about narrative consensus rather than narrative strategy. How does that sound?
That sounds really, really apt.
I guess I’ll ask one last question. In order to tee up a future conversation, whether it’s with me or with Amanda Knox, with Allegra McLeod, how would you characterize the difference between what Allegra is focused on in this realm and what you are focused on in the realm of prison abolition?
Allegra is brilliant. I wouldn’t be thinking about abolition in the way that I am but for her work. So I owe her an enormous debt of gratitude. She’d be the first to deflect and say that the people who she’s learned from are black feminists like Ruthie Gilmore, Angela Davis, the activists in the Movement for Black Lives.
I think one of Professor McLeod’s major contributions has been to present the ideas to the legal academy in ways that the people who would implement abolition can relate. So, what she’s thought about is philosophy called justifications of punishment. People know of these ideas vaguely, the terms retribution, incapacitation. She’s thought about, okay if that’s what punishment is supposed to do, does it? And if those are important goals, how would they be accomplished without cages?
And again, the work has been unprecedented, shattering. I also want to shout out some other brilliant legal scholars who are working on this. Amna Akbar, who has this ridiculously good … OpEd in today’s New York Times is another leading theorist. I’m probably one of the few, but definitely not the only formal prosecutor who is an abolitionist. And what I focus on is practical aspects of what it would mean.
Again, thinking about it from a very practical perspective led me to the understanding that we have what I call de facto abolition right now. All that is, is that idea that I described earlier, that the vast majority of people who commit crimes not only never see the inside of a prison cell, they never are on the opposite end of a 911 call. They’re just completely undisturbed by the criminal legal process. And for that, it doesn’t matter whether they are Asian, hite, African American or Latinx. The vast majority of people of any race who commit a crime just don’t get embroiled in the criminal legal process.
So in understanding that and explaining it to folks, I think that makes abolition less scary, and it also makes us more open to a remedy where people who are harmed can go to get real help. I don’t want to say what I hope my contribution is, is a more practical way. I do think that as a former prosecutor, I have a kind of credibility that I probably don’t deserve, but that helps people listen in a way that they might not the people who hadn’t actually been part of the system.
I think that my experience as an African American man, as a person who grew up in a community where on the one hand I’m walking down the street and I’m a little scared with the way that some of my brothers are looking at me … I had that experience when I was a kid in Chicago and then got mugged a couple of times. And then when the cops roll by and they slow down, I don’t like the way they’re looking at me any better. You shouldn’t have to compare, but I feel less safe really around the cops than I do around even some of my neighbors who might not wish me the best.
So all of that helps me understand the need for a response from the state. That is the state’s business, that’s the most important obligation of the state. But I also know that as a Black man, that the way that we’re doing that now with the police and prosecutors, that’s not working for me. It’s not helping me feel safe at all. And all of that makes me more open-minded, more attuned to the urgency of the problem. And at the end of the day, maybe even more hopeful.
Sherrilyn Ifill who is the head of the NAACP legal defense fund was recently asked, ‘How do you keep going on? You’re one of the leaders of the racial justice movement, and look at where we are now. What, if anything, gives you hope?’ And she said African American history gives her hope. She says, when you look at everything that we’ve been through, the slavery, Jim Crow, the police that poison water, she says that when those stories are told, they never end with, and then the Black people gave up. They’ve never end that way.
And I don’t think this story about mass incarceration, about wretched violence by police, about horrific prison conditions and resisting the new Jim Crow, resisting that wretchedness, it’s not going to end with, and then the Black people gave up. It’s going to end at some point with, and then the Black people and their allies in the struggle for racial justice transformed that crisis. They made the United States live up or get closer to its highest ideals.
Paul Butler, as always, thank you so much for your time and your thoughtfulness about these issues of our lifetime. Safe travels, and I look forward to talking to you in another month or so.
Always a pleasure, Kary. Thank you so much for your work. It’s an important part of this moment, both your work on this podcast and your work on crimestory.com. It’s crucial reading, crucial viewing. I just tell everybody to check it out.
Thanks again, Paul.