Dorothy Roberts - Abolition Constitutionalism

VOLUME 133 NOVEMBER 2019 NUMBER 1
© 2019 by The Harvard Law Review Association
THE SUPREME COURT

2018 TERM
FOREWORD:
ABOLITION CONSTITUTIONALISM
Dorothy E. Roberts
CONTENTS
INTRODUCTION ................................................................................................................................ 3
I. THE NEW ABOLITIONISTS .................................................................................................. 11
A. The Prison Industrial Complex and the Carceral State ............................................... 12
B. Abolition Praxis: Past, Present, Future .......................................................................... 19
1. Slavery Origins .............................................................................................................. 19
(a) Police ....................................................................................................................... 20
(b) Prisons ..................................................................................................................... 29
(c) Death Penalty ......................................................................................................... 38
2. Not a Malfunction. ....................................................................................................... 42
3. A Society Without Prisons. ......................................................................................... 43
C. The Unfinished Abolition Struggle .................................................................................. 48
II. ABOLITION AND THE CONSTITUTION............................................................................. 49
A. The Settler-Colonial and Slavery Constitution .............................................................. 51
B. The Radical History of the Reconstruction Amendments............................................. 54
C. The Reconstruction Constitution ..................................................................................... 62
D. The Court’s Anti-Abolition Jurisprudence ...................................................................... 71
1. Constitutional Counterrevolution ............................................................................... 73
2. The Court’s Current Anti-Abolition Doctrines .......................................................... 75
(a) Colorblindness ......................................................................................................... 77
(b) Discriminatory Purpose Requirement ................................................................. 85
(c) Fear of Too Much Justice...................................................................................... 90
E. Flowers v. Mississippi ....................................................................................................... 93
1. Justice Kavanaugh’s Compromise. .............................................................................. 94
2. Applying Abolition Constitutionalism to Flowers .................................................... 99
III. TOWARD A NEW ABOLITION CONSTITUTIONALISM................................................. 105
A. Approaching the Constitution Instrumentally .............................................................. 105
1
2 HARVARD LAW REVIEW [Vol. 133:1
1. Holding Courts and Legislatures to an Abolitionist Reading ............................... 110

2. Nonreformist Abolitionist Reforms ........................................................................... 114
3. Treating the Symptoms While Ending the Disease ................................................ 118
4. Creating the Conditions for a Society Without Prisons ........................................ 119
B. Imagining a Freedom Constitutionalism....................................................................... 120
CONCLUSION ................................................................................................................................. 122
THE SUPREME COURT
2018 TERM
FOREWORD:
ABOLITION CONSTITUTIONALISM
Dorothy E. Roberts∗
Slavery has been fruitful in giving itself names . . . and you and I and
all of us had better wait and see what new form this old monster will
assume, in what new skin this old snake will come forth next.
— Frederick Douglass1
You have to act as if it were possible to radically transform the world.

And you have to do it all the time.
— Angela Y. Davis2
INTRODUCTION
I n 1997, Curtis Flowers was charged with murdering four employees

of the Tardy Furniture store in the small Mississippi town of Winona.3
Flowers is black.4 Three of the victims, including the store’s owner,
Bertha Tardy, were white, and one was black.5 Flowers was tried for
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
∗ George A. Weiss University Professor of Law and Sociology, University of Pennsylvania;
Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, University of
Pennsylvania Law School; Professor of Africana Studies and Professor of Sociology, University of
Pennsylvania School of Arts & Sciences. The author thanks Mitchell Berman, Maggie Blackhawk,
Jean Galbraith, Paul Heaton, Seth Kreimer, Serena Mayeri, Donald Moore, Shaun Ossei-Owusu,
James Pope, Andrea Ritchie, and Tobias Wolff for helpful comments on an earlier draft of this
Foreword. The author is indebted to University of Pennsylvania Law School students Madison
Gray, Bridget Lavender, Anthony Sacco, and James Thompson for outstanding and dedicated re-
search assistance, to Timothy Von Dulm and the Biddle Law Library staff for excellent research
services, and to the editors of the Harvard Law Review for rigorous editorial support.
1 FREDERICK DOUGLASS, The Need for Continuing Anti-Slavery Work, in FREDERICK
DOUGLASS: SELECTED SPEECHES AND WRITINGS 577, 579 (Philip S. Foner & Yuval Taylor
eds., Lawrence Hill Books 1999) (1950–75).
2 Angela Y. Davis, Distinguished Professor Emerita, Univ. of Cal., Santa Cruz, Lecture at
Southern Illinois University Carbondale (Feb. 13, 2014).
3 Flowers v. Mississippi, 139 S. Ct. 2228, 2236 (2019).
4 Id.
5 See In the Dark: July 16, 1996, at 5:43–6:20, APM REP. (May 1, 2018), https://podcasts.
apple.com/us/podcast/id1148175292 [https://perma.cc/H44A-SDJK].
3
capital murder six times by the same white prosecutor, Doug Evans.6
More than two decades after Flowers was first sentenced to death, his
case reached the U.S. Supreme Court on one issue: whether Evans’s jury
selection tactics in the sixth trial violated Flowers’s Fourteenth
Amendment rights.7 By that point, the prosecutor’s scheme for getting
a capital conviction of a black man was crystal clear: Evans “relent-
less[ly]” sought to try Flowers before an all-white jury.8 Over the course
of six trials, Evans used peremptory challenges to strike forty-one of
forty-two prospective black jurors.9
On June 21, 2019, the Court overturned Flowers’s conviction.10 In
a 7-2 decision, written by Justice Kavanaugh,11 the Court held that the
prosecutor’s blatant pattern of racial discrimination was so “extraordi-
nary” that it violated the Equal Protection Clause of the Fourteenth
Amendment.12 In dissent, Justice Thomas, who excused Evans’s strikes
of black jurors as “race-neutral,”13 found solace in one aspect of the ma-
jority’s decision: “The State is perfectly free to convict Curtis Flowers
again.”14 Flowers remains incarcerated; upon his release from death
row, he will be taken into local custody again, awaiting a decision from
the State regarding the possibility of a seventh trial.15
As Flowers v. Mississippi16 indicates, criminal procedure and pun-
ishment in the United States still function to maintain forms of racial
subordination that originated in the institution of slavery — despite the
dominant constitutional narrative that those forms of subordination
were abolished. Key aspects of carceral law enforcement — police, pris-
ons, and the death penalty — can be traced back to slavery and the
white supremacist regime that replaced slavery after white terror nulli-
fied Reconstruction. Criminal punishment has been instrumental in re-
instating the subjugated status of black people and preserving a racial
capitalist power structure.
Many individuals have therefore concluded that the answer to per-
sistent injustice in criminal law enforcement is not reform; it is prison
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
6See id.; Flowers, 139 S. Ct. at 2236.
7See Flowers, 139 S. Ct. at 2234–35, 2238.
8Id. at 2246.
9See id. at 2235.
10See id. at 2228, 2251.
11Id. at 2229.
12Id. at 2251; see id. at 2242 (“Equal justice under law requires a criminal trial free of racial
discrimination in the jury selection process.”).
13 Id. at 2253 (Thomas, J., dissenting).
14 Id. at 2274.
15 See Alissa Zhu, Supreme Court Sided with Curtis Flowers. He Remains in Prison. What’s
Next?, MISS. CLARION LEDGER (June 27, 2019), https://www.clarionledger.com/
story/news/2019/06/27/supreme-court-sided-curtis-flowers-he-still-prison-whats-next-forwinona-
mississippi-man/1552081001 [https://perma.cc/HLN7-TMTS].
16 139 S. Ct. 2228.
2019] THE SUPREME COURT — FOREWORD 5
abolition.17 Incarcerated people have rebelled against prisons through

spontaneous uprisings, organized protests, and legal claims since the
1960s.18 Some activists mark the launch of the current prison abolition
movement as occurring at an international conference and strategy ses-
sion, Critical Resistance: Beyond the Prison Industrial Complex, held
at the University of California, Berkeley, in September 1998.19 Formed
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
17 See, e.g., ABOLISHING CARCERAL SOCIETY 4 (Abolition Collective ed., 2018) (laying out a
manifesto for “abolish[ing] a number of seemingly immortal institutions and drawing inspiration
from those who have sought the abolition of all systems of domination, exploitation, and
oppression — from Jim Crow laws and prisons to patriarchy and capitalism”); ABOLITION NOW!,
at xii (CR10 Publ’ns Collective ed., 2008) (collecting works that further the “struggl[e] to tear down
the cages of the [prison industrial complex]”); ANGELA Y. DAVIS, ABOLITION DEMOCRACY
35–37 (2005) [hereinafter DAVIS, ABOLITION DEMOCRACY] (noting the connections between the
prison industrial complex and the persistence of structural racism); ANGELA Y. DAVIS, ARE PRIS-
ONS OBSOLETE? 15–21 (2003) [hereinafter DAVIS, ARE PRISONS OBSOLETE?] (questioning why
society takes prison for granted); RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SUR-
PLUS, CRISIS, AND OPPOSITION IN GLOBALIZING CALIFORNIA 242 (2007) [hereinafter
GILMORE, GOLDEN GULAG] (noting the “proliferation of antiprison groups” during the early
2000s); STATES OF CONFINEMENT: POLICING, DETENTION, AND PRISONS, at xiii (Joy James
ed., 2000) (“Prisons . . . exist as a central dilemma for a racially constructed and class-stratified de-
mocracy.”); Introduction, in Developments in the Law — Prison Abolition, 132 HARV. L. REV. 1568,
1568 (2019) (noting the “calls for urgent and drastic change” of the carceral system); End the War
on Black People, MOVEMENT FOR BLACK LIVES, https://policy.m4bl.org/end-war-on-black-
people [https://perma.cc/PPA4-VY43] (demanding “an end to all jails, detention centers, youth fa-
cilities and prisons as we know them”).
18 See DAN BERGER, CAPTIVE NATION: BLACK PRISON ORGANIZING IN THE CIVIL
RIGHTS ERA 11 (2014) [hereinafter BERGER, CAPTIVE NATION] (providing a “critical history of
racial justice activism and the prison between 1955 and 1980”); RONALD BERKMAN, OPENING
THE GATES: THE RISE OF THE PRISONERS’ MOVEMENT 1–3 (1979) (tracing the rise of the pris-
oners’ movement in the 1960s); JAMIE BISSONETTE, WHEN THE PRISONERS RAN WALPOLE:
A TRUE STORY IN THE MOVEMENT FOR PRISON ABOLITION 9–12 (2008) (chronicling the
struggle for prison reform at MCI Walpole in Massachusetts); ERIC CUMMINS, THE RISE AND
FALL OF CALIFORNIA’S RADICAL PRISON MOVEMENT, at vii (1994) (chronicling the history of
California prisoners between 1950 and 1980 and the “emergence of a highly developed radical con-
vict resistance movement”); GEORGE JACKSON, SOLEDAD BROTHER: THE PRISON LETTERS
OF GEORGE JACKSON, at ix (1970) (presenting the “testament” of George Jackson, an incarcerated
man “who transformed himself into the leading theoretician of the prison movement”); HEATHER
ANN THOMPSON, BLOOD IN THE WATER: THE ATTICA PRISON UPRISING OF 1971 AND ITS
LEGACY, at xiii (2016) (providing a “comprehensive history of the Attica prison uprising”);
DONALD F. TIBBS, FROM BLACK POWER TO PRISON POWER: THE MAKING OF JONES V.
NORTH CAROLINA PRISONERS’ LABOR UNION (2012) (narrating a historic victory for prisoners’
rights that emerged from the struggle for black liberation); see also LEE BERNSTEIN, AMERICA IS
THE PRISON: ARTS AND POLITICS IN PRISON IN THE 1970S 1–17 (2010) (tracing the ways in which
cultural expression in prisons allowed prisoners to participate in “American public life,” id. at 16).
19 See ABOLITION NOW!, supra note 17, at xi; Rose Braz et al., The History of Critical Re-
sistance, 27 SOC. JUST., Fall 2000, at 6, 6; Angela Y. Davis & Dylan Rodríguez, The Challenge of
Prison Abolition: A Conversation, 27 SOC. JUST., Fall 2000, at 212, 216–17; Critical Resistance:
Beyond the Prison Industrial Complex 1998 Conference, CRITICAL RESISTANCE, http://
criticalresistance.org/critical-resistance-beyond-the-prison-industrial-complex-1998-conference
[https://perma.cc/2AF5-A2ET]; Critical Resistance, The Hard Road to Abolition//Strategies to Win,
Profiles in Abolition Event at 14:00, VIMEO (Sept. 19, 2016), https://vimeo.com/196237369
[https://perma.cc/HHK9-VT7U] [hereinafter Profiles in Abolition]. The prison abolition movement
should be distinguished from the movement to abolish prostitution. See, e.g., Laura Agustín, The
in 1997, the Critical Resistance organizing collective gathered more than

3500 activists, former prisoners, lawyers, and scholars over three days
“to address the alarming growth of the prison system, popularize the
idea of the ‘prison industrial complex’ (PIC), and make ‘abolition’ a
practical theory of change.”20 Critical Resistance founders developed
the concept of the “prison industrial complex” to name the expanding
apparatus of surveillance, policing, and incarceration the state increas-
ingly employs to solve problems caused by social inequality, stifle polit-
ical resistance by oppressed communities, and serve the interests of cor-
porations that profit from prisons and police forces.21 Along with
Critical Resistance, which is now a national chapter-based organization
working with various grassroots campaigns, a nationwide network of
activists is organizing to abolish the prison industrial complex and to
build a society that has no need for prisons.22
It is hard to pin down what prison abolition means. Activists en-
gaged in the movement have resisted “closed definitions of prison aboli-
tionism”23 and have instead suggested a variety of terms to capture what
prison abolitionists think and do — abolition is “a form of conscious-
ness,”24 “a theory of change,”25 “a long-term political vision,”26 and “a
spiritual journey.”27 Professor Dylan Rodríguez, a founding member of
Critical Resistance,28 lyrically describes abolition as “a practice, an an-
alytical method, a present-tense visioning, an infrastructure in the mak-
ing, a creative project, a performance, a counterwar, an ideological
struggle, a pedagogy and curriculum, an alleged impossibility that is
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
New Abolitionist Model, JACOBIN (Dec. 6, 2017), https://www.jacobinmag.com/2017/12/sex-work-
the-pimping-of-prostitution-review [https://perma.cc/566V-CCQ2].
20 Critical Resistance: Beyond the Prison Industrial Complex 1998 Conference, supra note 19.
21 See What Is the PIC? What Is Abolition?, CRITICAL RESISTANCE, http://
criticalresistance.org/about/not-so-common-language [https://perma.cc/75BC-NGHP].
22 See CR Structure & Background, CRITICAL RESISTANCE, http://criticalresistance.
org/about/cr-structure-background [https://perma.cc/67R3-TC8Z]. In this Foreword, I will use the
term “prison abolition” to encompass the claim that various aspects of the criminal punishment system,
including prisons, jails, detention centers, policing, surveillance, and the death penalty, should be abol-
ished. Moreover, this Foreword focuses on abolition of carceral punishment, though abolition theory
extends beyond the criminal punishment system to include other aspects of the carceral state, including
the foster care and deportation systems. See infra section I.A, pp. 12–19.
23 Overview: Critical Resistance to the Prison-Industrial Complex, 27 SOC. JUST., Fall 2000, at 1, 5.
24 Profiles in Abolition, supra note 19, at 1:27.
25 Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, N.Y.
TIMES MAG. (April 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prison-abolition-
ruth-wilson-gilmore.html [https://perma.cc/4GZZ-NFM6] (quoting Michelle Alexander).
26 CHARLENE A. CARRUTHERS, UNAPOLOGETIC: A BLACK, QUEER, AND FEMINIST
MANDATE FOR RADICAL MOVEMENTS, at x (2018).
27 Spirituality and Abolition — Call for Submissions, ABOLITION (Aug. 2, 2018), https://
abolitionjournal.org/spirituality-and-abolition-call-for-submissions [https://perma.cc/8SS4-8KAT].
28 Critical Resistance: Beyond the Prison Industrial Complex 1998 Conference, supra note 19.
furtively present.”29 Moreover, movements that refer to themselves as

abolitionist are working to dismantle a wide range of systems, institu-
tions, and practices beyond criminal punishment (such as “the wage sys-
tem, animal and earth exploitation, [and] racialized, gendered, and sex-
ualized violence”)30 and forms of oppression beyond white supremacy
(such as “patriarchy, capitalism, heteronormativity, ableism, colonial-
ism,” imperialism, and militarism).31 While I recognize that all of these
oppressive systems and the movements for their eradication are inter-
connected,32 this Foreword will focus specifically on the movement to
abolish the prison industrial complex, conceived of as rooted in chattel
slavery in the United States, as a starting point to examine the potential
for a new abolition constitutionalism.
For purposes of my analysis, I find especially useful three central
tenets that are common to formulations of abolitionist philosophy. First,
today’s carceral punishment system can be traced back to slavery and
the racial capitalist regime it relied on and sustained.33 Second, the ex-
panding criminal punishment system functions to oppress black people
and other politically marginalized groups in order to maintain a racial
capitalist regime.34 Third, we can imagine and build a more humane
and democratic society that no longer relies on caging people to meet
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
29 Dylan Rodríguez, Abolition as Praxis of Human Being: A Foreword, in Developments in the
Law — Prison Abolition, 132 HARV. L. REV. 1575, 1578 (2019).
30 Manifesto for Abolition, ABOLITION, https://abolitionjournal.org/frontpage
[https://perma.cc/5P3V-JMHK]; see Allegra M. McLeod, Envisioning Abolition Democracy, in
Developments in the Law — Prison Abolition, 132 HARV. L. REV. 1613, 1617 (2019) [hereinafter
McLeod, Envisioning Abolition Democracy] (“Abolitionist organizers understand their work to be
related to the historical struggles against slavery and its afterlives, against imperialism and its leg-
acies in more recent practices of racial capitalism, and against immigration enforcement and border
fortification.”).
31 Manifesto for Abolition, supra note 30 (referring to “all revolutionary movements, insofar as
they have abolitionist elements”); see Rodríguez, supra note 29, at 1578 (placing abolition within a
“(feminist, queer) Black liberation and (feminist, queer) Indigenous anticolonialism/decolonization”
tradition); Michael Hames-Garcia, Abolition Is a Goal that I Use to Orient My Thinking and Action:
Michael Hames-Garcia on Abolition, ABOLITION (June 26, 2015), https://abolitionjournal.org/
michael-hames-garcia-abolition-statement [https://perma.cc/66JS-VXHR] (positing that abolition is
antiracist, antisexist, antihomophobic, and so forth).
32 See PATRICIA HILL COLLINS & SIRMA BILGE, INTERSECTIONALITY 55 (2016) (discuss-
ing how “forms of violence within separate systems might in fact be interconnected”); HOW WE
GET FREE: BLACK FEMINISM AND THE COMBAHEE RIVER COLLECTIVE 4 (Keeanga-
Yamahtta Taylor ed., 2017) [hereinafter HOW WE GET FREE] (describing “oppressions as ‘inter-
locking’ or happening ‘simultaneously,’ thus creating new measures of oppression and inequality”);
Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender,
Disability, and Genetic Technologies, 10 DU BOIS REV. 313, 318–24 (2013) (exploring the phenom-
enon of “coalitions across movements where political organizations focused on different causes,
often rooted in differing identity categories, engage in collective action to achieve shared goals,” id.
at 318); see generally PATRICIA HILL COLLINS, BLACK FEMINIST THOUGHT (1990).
33 See infra section I.B.1, pp. 19–42; see also Rodríguez, supra note 29, at 1580–84.
34 See infra section I.B.2, pp. 42–43; see also Rodríguez, supra note 29, at 1584–87.
human needs and solve social problems.35 These tenets lead to the con-
clusion that the only way to transform our society from a slavery-based
one to a free one is to abolish the prison industrial complex.
To date, there has been no sustained analysis of the relationship be-
tween the prison abolition movement and the U.S. Constitution. Prison
abolition activists and scholars rarely seek support for their claims in
constitutional law.36 Nor have they included an abolitionist interpreta-
tion of the Constitution in their vision of a transformed society without
prisons. Some not only have eschewed constitutional law as a means to
achieve prison abolition but also have argued that constitutional law
serves to facilitate and legitimate state violence against black and other
marginalized people.37 This oppositional approach to the Constitution
is understandable given that so much of the Supreme Court’s constitu-
tional jurisprudence since its inception in the slavery era has been anti-
abolitionist.38 Yet the Constitution was interpreted by past freedom ac-
tivists as an abolitionist document: many antislavery activists viewed
the Constitution as a foundation for their arguments and for developing
an alternative reading that called for freedom and democracy. Even
after the Civil War, a Radical Republican Congress amended the text
explicitly to end slavery and extend citizenship to black people based on
the ideas and advocacy of an abolitionist movement.39 At the same time,
the Reconstruction Amendments contained compromises that blocked
their potential for dismantling the racial capitalist structure.40 By 1900, a
campaign of white supremacist terror, laws, and policies had effectively
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
35See infra section I.B.3, pp. 43–48; see also, e.g., Profiles in Abolition, supra note 19.
36Abolitionist theorizing and activism have largely occurred separately from lawyers and the
legal academy. Introduction, supra note 17, at 1568–69.
37 Joy James, Introduction, Democracy and Captivity, in THE NEW ABOLITIONISTS:
(NEO)SLAVE NARRATIVES AND CONTEMPORARY PRISON WRITINGS, at xxii, xxv–xxx (Joy
James ed., 2005) [hereinafter James, Democracy and Captivity]; see also Jalil A. Muntaqim, Musings
on US Judicial Repression, THE ABOLITIONIST, Summer 2008, at 7, https://
abolitionistpaper.files.wordpress.com/2011/01/abolitionist-issue-9-summer-2008-english.pdf
[https://perma.cc/783Y-T9JV]; Erica Meiners, Notes Against & Beyond Our Carceral Regime: Erica
Meiners on Abolition, ABOLITION (Aug. 12, 2015), https://abolitionjournal.org/erica-meiners-on-
abolition [https://perma.cc/8D76-JE74].
38 See infra section II.D, pp. 71–93. In response to Professor Jack Balkin’s observation that
“[w]ithin our legal culture the idea of fidelity to the Constitution is seen as pretty much an unques-
tioned good,” J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 FORDHAM L.
REV. 1703, 1704 (1997), I once argued that “[i]n light of all the indignities showered upon blacks . . .
under color of the Constitution, I would think the presumption would be that blacks should repu-
diate the document and all the injustice for which it has stood.” Dorothy E. Roberts, The Meaning
of Blacks’ Fidelity to the Constitution, 65 FORDHAM L. REV. 1761, 1761 (1997) [hereinafter
Roberts, Blacks’ Fidelity].
39 See infra pp. 62–64.
40 See infra pp. 65–67.
nullified the Amendments and replaced abolition with Jim Crow as the
constitutional regime.41
Engaging the relationship between past abolition constitutionalism
and the current prison abolition movement raises a number of provoca-
tive questions. Can legal scholars help to revive the abolitionist values
in the Reconstruction Constitution to support contemporary abolitionist
claims? Can prison abolitionists strategically use an abolitionist reading
of the Constitution to defend their radical vision and implement steps
toward achieving it? Might prison abolitionists craft a new abolition
constitutionalism that serves as a charter for a society without prisons?
In this Foreword, I make the case for an abolition constitutionalism
that attends to the theorizing of prison abolitionists. Although there are
many grounds for prison abolition and many venues for abolitionist ad-
vocacy, my purpose here is to examine prison abolitionist theory and
organizing as it relates to the U.S. Constitution in particular. There are
two paths this interrogation might take. One uses prison abolition the-
ory to evaluate the Constitution’s provisions and the jurisprudence that
has interpreted them in order to rebuke their failure to abolish slavery-
like systems and install a democratic society. The other goes further to
propose a constitutional paradigm that supports prison abolitionists’
goals, strategies, and vision. The first path is resigned to the futility of
employing U.S. constitutional law to dismantle the prison industrial
complex and other aspects of the carceral state. The second path
finds utility in applying the abolitionist history and logic of the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
41 See, e.g., ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION,
1863–1877, at 443 (1988) [hereinafter FONER, RECONSTRUCTION] (recounting the violence per-
petrated by the Ku Klux Klan and the ways in which it “raised in its starkest form the question of
legitimacy that haunted the Reconstruction state”); HENRY LOUIS GATES, JR., STONY THE
ROAD: RECONSTRUCTION, WHITE SUPREMACY, AND THE RISE OF JIM CROW 29–35 (2019)
(tracing the political, economic, and legal forces that led to dismantling Reconstruction legislation
and “solidif[ying] Southern states as governed by legal segregation and discrimination,” id. at 35);
CHARLES LANE, THE DAY FREEDOM DIED: THE COLFAX MASSACRE, THE SUPREME
COURT, AND THE BETRAYAL OF RECONSTRUCTION 5 (2008) (discussing President Ulysses
Grant’s struggle to end Klan terror in the 1870s and stating that it “simply underscored the fact
that Reconstruction, for all its initial promise, had turned into a long, violent slog”); id. at 251
(claiming that Reconstruction “ended amid bloodshed”); RAYFORD W. LOGAN, THE BETRAYAL
OF THE NEGRO: FROM RUTHERFORD B. HAYES TO WOODROW WILSON 116–17 (1965) (claim-
ing that the interpretation of the Fourteenth Amendment in the Civil Rights Cases, decided in 1883,
“virtually assured the subsequent development of Jim Crow laws,” id. at 117); GEORGE
RUTHERGLEN, CIVIL RIGHTS IN THE SHADOW OF SLAVERY: THE CONSTITUTION, COM-
MON LAW, AND THE CIVIL RIGHTS ACT OF 1866, at 39 (2013) (arguing that the Reconstruction
Amendments “were inadequate to prevent the regime of . . . Jim Crow”); RICHARD M. VALELLY,
THE TWO RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT 115–16
(2004) (discussing the “white revolution” that spread from Louisiana to Mississippi and South
Carolina, id. at 115); C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 8 (1955)
(“The new Southern system [under Jim Crow] was regarded as the ‘final settlement,’ the ‘return to
sanity,’ the ‘permanent system.’”).
Reconstruction Amendments to today’s political conditions in the ser-

vice of prison abolition.
I believe both approaches are worthy of consideration, and consider-
ing both is essential to developing a theoretically and pragmatically useful
legal framework to advance prison abolition. Neither is based on a naïve
faith in U.S. law or the judges who apply it to radically change carceral
society. Indeed, it is the realization that white supremacy is deeply woven
into the fabric of every legal institution in the United States and upheld by
U.S. constitutional law that made me an abolitionist in the first place. The
tension between recognizing the relentless antiblack violence of constitu-
tional doctrine, on one hand, and demanding the legal recognition of black
people’s freedom and equal citizenship, on the other, animates this
Foreword as it has long animated abolitionist debates on the U.S.
Constitution.42 Despite my disgust with the perpetual defense of oppres-
sion in the name of constitutional principles, I am inspired by the possi-
bility of an abolition constitutionalism emerging from the struggle to
demolish prisons and create a society where they are obsolete.
This Foreword analyzes the potential for a new abolition constitu-
tionalism as follows. In Part I, I provide a summary of prison abolition
theory and highlight its foundational tenets that engage with the insti-
tution of slavery and its eradication. I discuss how abolition theorists
view the current prison industrial complex as originating in, though dis-
tinct from, racialized chattel slavery and the racial capitalist regime that
relied on and sustained it, and their movement as completing the “un-
finished liberation”43 sought by slavery abolitionists in the past. Part II
considers whether the U.S. Constitution is an abolitionist document. I
interrogate the historic abolition constitutionalism by examining ante-
bellum abolitionists’ readings of the Constitution and their partial in-
corporation into the Reconstruction Amendments, as well as the
Supreme Court’s jurisprudence obstructing the Amendments’ trans-
formative potential. I pay close attention to the Supreme Court’s most
recent decision interpreting the relationship between the Fourteenth
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
42 See infra section II.B, pp. 54–62. As a legal scholar who works in academia, I also write this
Foreword with the constant sense of tension between wanting my scholarship to be useful to aboli-
tion activists and recognizing the tendency of academic enterprises to “filter[] professionalism and
conformity into activism.” Joy James, 7 Lessons in 1 Abolitionist Notebook: Joy James on
Abolition, ABOLITION (June 25, 2015), https://abolitionjournal.org/joy-james-7-lessons-in-1-
abolitionist-notebook [https://perma.cc/Q6NN-6NXA] [hereinafter James, 7 Lessons]; see HOW WE
GET FREE, supra note 32, at 13 (“Political analysis outside of political movements and struggles
becomes abstract, discourse driven, and disconnected from the radicalism that made it powerful in
the first place.”). From its inception, the prison abolition movement has included a mix of grassroots
activists and former prisoners, as well as lawyers and scholars (and some who traverse these iden-
tities). Abolition is both a practical and intellectual endeavor. See Critical Resistance, Angela
Davis, “We Need Intellectuals,” YOUTUBE (Mar. 22, 2018), https://youtu.be/edqwL0bytVI
[https://perma.cc/L3ZE-CDQQ]. I approach this Foreword with the aim that my analysis will be
productive without detracting from the radicalism of prison abolition.
43 See Profiles in Abolition, supra note 19, at 1:39.
Amendment and carceral punishment — Flowers v. Mississippi — to

analyze the Justices’ rejection of an abolitionist approach in their ruling.
Finally, Part III links Parts I and II by exploring the relationship
between prison abolition and the U.S. Constitution. I argue that, despite
the ascendance of proslavery and anti-abolition constitutionalism, we
should consider the abolitionist history of the Reconstruction
Amendments as a usable past to help move toward a radical future. I
hope to show that the prison abolition movement can reinvigorate abo-
lition constitutionalism. In turn, today’s activists can deploy the
Reconstruction Amendments instrumentally to further their aims and,
in the process, construct a new abolition constitutionalism on the path
to building a society without prisons.
I. THE NEW ABOLITIONISTS

Since the Critical Resistance organizing collective formed in 1997,
grassroots activists, prisoners and former prisoners, and scholars organ-
izing to end prisons have developed a coherent, though amorphous, set
of theories, principles, and strategies that guides their abolition move-
ment. They have articulated these ideas in numerous books,44 articles
in scholarly journals and mass media,45 conference presentations,46
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
44 See, e.g., sources cited supra note 17.
45 See, e.g., Dan Berger, Social Movements and Mass Incarceration: What Is to Be Done?, 15
SOULS 3, 10–16 (2013) (arguing that a new social movement toward decarceration is “on the [r]ise,”
id. at 10); Kelly Lytle Hernández, Amnesty or Abolition? Felons, Illegals, and the Case for a New
Abolition Movement, 1 BOOM: J. CAL. 54, 63–66 (2011) (discussing the relationship between mass
incarceration and constitutional history and the importance of abolitionist critiques); Overview:
Critical Resistance to the Prison-Industrial Complex, supra note 23, at 2 (highlighting the national
abolition movement built by Critical Resistance and introducing a special issue of Social Justice
featuring “system analyses” and “articles centered on organizing for change” with respect to aboli-
tion); Julia Chinyere Oparah (formerly known as Julia Sudbury), Reform or Abolition? Using Pop-
ular Mobilisations to Dismantle the “Prison-Industrial Complex,” 77 CRIM. JUST. MATTERS 17,
17 (2009) (examining how prison abolitionist grassroots campaigning is “transform[ing] popular un-
derstandings of mass incarceration” and leading to “new political possibilities”); Introduction, supra
note 17 (discussing scholarship and activism on prison abolition outside the legal community and
introducing legal scholarship building on this work); Dan Berger, Mariame Kaba & David Stein,
What Abolitionists Do, JACOBIN (Aug. 24, 2017), https://www.jacobinmag.com/2017/08/prison-
abolition-reform-mass-incarceration [https://perma.cc/235V-6YEG] (describing the ways in which
prison abolitionists organize for concrete reforms as part of a broader transformative vision); Ruth
Wilson Gilmore, The Worrying State of the Anti-Prison Movement, SOC. JUST. (Feb. 23, 2015),
http://www.socialjusticejournal.org/the-worrying-state-of-the-anti-prison-movement [https://perma.
cc/QGV7-Z7JM] (calling attention to “areas of particular concern” for the prison abolition movement
after an increase in the U.S. prison and jail population).
46 See, e.g., Claire Delisle et al., The International Conference on Penal Abolition (ICOPA):
Exploring Dynamics and Controversies as Observed at ICOPA 15 on Algonquin Territory, 12 ABO-
LITIONISM 1, 3–14 (2015) (presenting areas of contention and proposed initiatives from ICOPA, an
international conference bringing together prison abolitionists); Harvard Law Review Prison
Abolition Symposium (Apr. 11–12, 2019) (presenting abolitionist scholars, organizers, and stake-
holders in conversation on the current and future intersections of abolitionist theory and praxis).
speeches,47 video interviews,48 and blogs,49 as well as on social media.50

Their work is too voluminous for me to discuss comprehensively in this
Foreword.51 In this Part, I will begin by summarizing abolitionist think-
ing about the prison industrial complex and expanding forms of carceral
statecraft in order to describe the apparatus that abolitionists are seek-
ing to dismantle. Then I will turn my attention to three central tenets
of abolitionist philosophy that are especially useful to my analysis of
abolition constitutionalism. First, today’s carceral punishment system
can be traced back to slavery and the racial capitalist regime it relied on
and sustained. Second, the expanding criminal punishment system
functions to oppress black people and other politically marginalized
groups in order to maintain a racial capitalist regime. Third, we can
imagine and build a more humane, free, and democratic society that no
longer relies on caging people to meet human needs and solve social
problems.
A. The Prison Industrial Complex and the Carceral State
The United States stands out from all nations on Earth for its
reliance on caging human beings.52 In the last forty years, the U.S. in-
carcerated population exploded from about 500,000 to more than two
million.53 The U.S. federal and state governments lock up more people
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
47 See, e.g., Ruth Wilson Gilmore, Conversation with Rachel Kushner at the Lensic Performing
Arts Center (Apr. 17, 2019), https://lannan.org/events/ruth-wilson-gilmore-with-rachel-kushner
[https://perma.cc/YPG4-MK42] (discussing Professor Ruth Wilson Gilmore’s work).
48 See, e.g., Breaking Down the Prison Industrial Complex Video Project, CRITICAL
RESISTANCE, http://criticalresistance.org/videoproject [https://perma.cc/ZW8Y-E95H] (publishing
series of videos discussing the prison industrial complex and the abolition movement).
49 See, e.g., ABOLITION BLOG, https://abolitionjournal.org [https://perma.cc/CR2T-74XX]
(publishing a variety of voices reflecting on incarceration and abolition).
50 For instance, activist Mariame Kaba had more than 140,000 Twitter followers as of
October 2019. Mariame Kaba (@prisonculture), TWITTER, https://twitter.com/prisonculture?
lang=en [https://perma.cc/N4GG-JZ2V].
51 For a useful compilation of numerous abolitionist sources, see Prison Abolition Syllabus, AFR.
AM. INTELL. HIST. SOC’Y (Nov. 20, 2016), https://www.aaihs.org/prison-abolition-syllabus
[https://perma.cc/9HSP-Q6BB].
52 See, e.g., MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF
AMERICAN POLITICS 4–5 (2015) (describing the United States as “the world’s warden,” id. at 5). For
discussions of different aspects of the prison system’s role within the United States, see generally
MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLOR-
BLINDNESS (2010); GILMORE, GOLDEN GULAG, supra note 17; ELIZABETH HINTON, FROM THE
WAR ON POVERTY TO THE WAR ON CRIME: THE MAKING OF MASS INCARCERATION IN
AMEICA (2016); KELLY LYTLE HERNÁNDEZ, CITY OF INMATES: CONQUEST, REBELLION, AND
THE RISE OF HUMAN CAGING IN LOS ANGELES, 1771–1965 (2017); NAOMI MURAKAWA, THE
FIRST CIVIL RIGHT: HOW LIBERALS BUILT PRISON AMERICA (2014); CHRISTIAN PARENTI,
LOCKDOWN AMERICA: POLICE AND PRISONS IN THE AGE OF CRISIS (1999); and ROBERT
PERKINSON, TEXAS TOUGH: THE RISE OF AMERICA’S PRISON EMPIRE (2010).
53 SENTENCING PROJECT, FACT SHEET: TRENDS IN U.S. CORRECTIONS 2 (2019),
https://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf [https://
perma.cc/5PS4-2AT7] (noting that the United States has “2.2 million people currently in the nation’s
and at higher rates than do any other governments in the world, and
they do so today more than they did at any other period in U.S. history.54
Most people sentenced to prison in the United States today are from
politically marginalized groups — poor, black, and brown.55 Not only
are black people five times as likely to be incarcerated as white people,56
but also the lifetime probability of incarceration for black boys born in
2001 is estimated to be thirty-two percent compared to six percent for
white boys.57 The female incarceration rate has grown twice as quickly
as the male incarceration rate over the past few decades, and black
women are twice as likely as white women to be behind bars.58 This
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
prisons and jails”); State Prisons, Local Jails and Federal Prisons, Incarceration Rates and Counts,
1925–2016, linked within Data Toolbox, PRISON POL’Y INITIATIVE, https://www.
prisonpolicy.org/data [https://perma.cc/45EK-QWX8] (showing a count of roughly 479,000 incar-
cerated people in 1980). This change represents a 340% growth. For comparison, the U.S. popula-
tion increased by only 43% during that same period. Compare 1980 Decennial Census of Population
and Housing, U.S. CENSUS BUREAU, https://www.census.gov/programs-surveys/decennial-
census/decade.1980.html [https://perma.cc/AXV4-48KM], with Annual Estimates of the Resident
Population for the United States, Regions, States, and Puerto Rico: April 1, 2010 to July 1, 2019,
linked within National Population Totals and Components of Change: 2010–2018, U.S. CENSUS
BUREAU, https://www.census.gov/data/tables/time-series/demo/popest/2010s-national-total.html#
par_textimage_2011805803 [https://perma.cc/M8YP-3Q97].
54 See NAT’L RESEARCH COUNCIL OF THE NAT’L ACAD., THE GROWTH OF INCARCERA-
TION IN THE UNITED STATES: EXPLORING CAUSES AND CONSEQUENCES 2 (2014) [hereinaf-
ter THE GROWTH OF INCARCERATION] (“The growth in incarceration rates in the United States
over the past 40 years is historically unprecedented and internationally unique.”); Heather Ann
Thompson, Why Mass Incarceration Matters: Crisis, Decline, and Transformation in Postwar His-
tory, 97 J. AM. HIST. 703, 703–04 (2010) (describing the rise of mass incarceration in the United
States as “something without international parallel or historical precedent,” id. at 703); Drew
Kann, 5 Facts Behind America’s High Incarceration Rate, CNN (Apr. 21, 2019), https://www.
cnn.com/2018/06/28/us/mass-incarceration-five-key-facts/index.html [https://perma.cc/RBV3-
6A9K] (observing that the United States has the “highest incarceration rate in the world”); Michelle
Ye Hee Lee, Yes, U.S. Locks People Up at a Higher Rate than Any Other Country, WASH. POST
(July 7, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/07/07/yes-u-s-locks-
people-up-at-a-higher-rate-than-any-other-country [https://perma.cc/3JFC-8YTG]; Peter Wagner &
Wendy Sawyer, States of Incarceration: The Global Context 2018, PRISON POL’Y INITIATIVE (June
2018), https://www.prisonpolicy.org/global/2018.html [https://perma.cc/WP57-AJWU] (“Compared to
the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime.”).
55 See SENTENCING PROJECT, supra note 53, at 5; Criminal Justice Fact Sheet, NAACP,
https://www.naacp.org/criminal-justice-fact-sheet [https://perma.cc/5VYN-KZHU]; Bernadette
Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-Incarceration Incomes of the
Imprisoned, PRISON POL’Y INITIATIVE (July 9, 2015), https://www.prisonpolicy.org/reports/
income.html [https://perma.cc/2J89-V69W]. For discussions of the implications of these trends, see
generally ALEXANDER, supra note 52; and MICHAEL TONRY, PUNISHING RACE: A CONTINU-
ING AMERICAN DILEMMA (2011).
56 Criminal Justice Fact Sheet, supra note 55.
57 Adam Tooze, Quantifying Incarceration, JACOBIN (Nov. 1, 2017), https://www.
jacobinmag.com/2017/11/mass-incarceration-statistics-united-states [https://perma.cc/K4TM-JCFJ].
58 Aleks Kajstura, Women’s Mass Incarceration: The Whole Pie 2018, PRISON
POL’Y INITIATIVE (Nov. 13, 2018), https://www.prisonpolicy.org/reports/pie2018women.html
[https://perma.cc/RMU8-5ERY]; Criminal Justice Fact Sheet, supra note 55. On the growth and
experience of women’s incarceration, see PAULA C. JOHNSON, INNER LIVES: VOICES OF AFRI-
astounding amount of human confinement should not be seen as an un-

fortunate consequence of crime prevention policies or as an isolated
blemish on America’s otherwise fair system of criminal justice.59 Rather,
prisons are part of a larger system of carceral punishment that legitimizes
state violence against the nation’s most disempowered people to maintain
a racial capitalist order60 for the benefit of a wealthy white elite.61
The prison industrial complex emerged in the second half of the
twentieth century from the merger of social welfare programs and crime
control policies.62 As Professor Elizabeth Hinton documents in From
the War on Poverty to the War on Crime, Democrats and Republicans
in the 1960s and 1970s paired federal assistance to urban neighborhoods
of color with surveillance, militarized policing, harsh sentencing laws,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
CAN AMERICAN WOMEN IN PRISON (2003) (sharing narratives of currently and formerly incar-
cerated women, as well as criminal justice officials and support networks); VICTORIA LAW, RE-
SISTANCE BEHIND BARS: THE STRUGGLES OF INCARCERATED WOMEN (2009) (exploring expe-
riences of, and resistance by, incarcerated women); ANDREA J. RITCHIE & BETH E. RICHIE, THE
CRISIS OF CRIMINALIZATION: A CALL FOR A COMPREHENSIVE PHILANTHROPIC RESPONSE 3
(2017), http://bcrw.barnard.edu/wp-content/nfs/reports/NFS9-Challenging-Criminalization-Funding-
Perspectives.pdf [https://perma.cc/6C8Q-AWLW] (noting that one in two black trans women will be
incarcerated in their lifetime); CAROLYN SUFRIN, JAILCARE: FINDING THE SAFETY NET FOR
WOMEN BEHIND BARS (2017) (surveying experiences of incarcerated pregnant women and examin-
ing the conception of jail as a safety net for marginalized mothers); Dorothy E. Roberts, Prison, Foster
Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. REV. 1474, 1478–83, 1493–99 (2012)
[hereinafter Roberts, Prison, Foster Care]; and Michele Goodwin, Invisible Women: Mass Incarcera-
tion’s Forgotten Casualties, 94 TEX. L. REV. 353, 358 (2015) (reviewing ALICE GOFFMAN, ON THE RUN
(2014) and JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD (2015)).
59 Cf. Rodríguez, supra note 29, at 1588–90 (describing incarceration as “a method of
normalized . . . dominance and violence over particular people[]”). See generally PAUL BUTLER,
CHOKEHOLD: POLICING BLACK MEN (2017) (describing systemic disparities between the treat-
ment of white men and black men as a result of race-based policing).
60 The term “racial capitalism” indicates that capital accumulation and labor expropriation in
the United States have always relied on a racial hierarchy and the deep inequalities that hierarchy
produces. See CEDRIC J. ROBINSON, BLACK MARXISM: THE MAKING OF THE BLACK RADI-
CAL TRADITION 2 (Univ. of N.C. Press 2000) (1983) (describing how “[t]he development, organi-
zation, and expansion of capitalist society pursued essentially racial directions . . . [and thus, how]
racialism . . . inevitably permeate[d] the social structures emergent from capitalism”); Jodi Melamed,
Racial Capitalism, 12 CRITICAL ETHNIC STUD. 76, 77 (2015) (“Capital can only be capital when
it is accumulating, and it can only accumulate by producing and moving through relations of severe
inequality among human groups . . . and racism enshrines the inequalities that capitalism re-
quires.”); Dan Berger, Opinion, Rise in White Prisoners Doesn’t Change Innate Racism of Prisons,
TRUTHOUT (Apr. 28, 2019), https://truthout.org/articles/rise-in-white-prisoners-shows-prison-
racism-goes-beyond-disparities [https://perma.cc/K8WG-G5UN] (“Prison is and always will be a
tool to preserve capitalist inequalities, which are most acutely felt through racism (what a number of
people call racial capitalism).”); see also Dan Berger, How Prisons Serve Capitalism, PUB. BOOKS (Aug.
17, 2018), https://www.publicbooks.org/how-prisons-serve-capitalism [https://perma.cc/9NN7-HZM8]
[hereinafter Berger, How Prisons Serve Capitalism]; Prisons and Class Warfare: Interview with Ruth
Wilson Gilmore, HIST. MATERIALISM, http://www.historicalmaterialism.org/interviews/prisons-and-
class-warfare [https://perma.cc/9BTJ-VSKP] [hereinafter Prisons and Class Warfare].
61 For studies of that system, see generally DAVIS, ABOLITION DEMOCRACY, supra note 17;
GILMORE, GOLDEN GULAG, supra note 17; and Rodríguez, supra note 29.
62 See HINTON, supra note 52, at 10–11.
and prison expansion, based on shared assumptions of innate black

criminality.63 Thus, “[t]he roots of mass incarceration had been firmly
established by a bipartisan consensus of national policymakers in the
two decades prior to Reagan’s War on Drugs in the 1980s.”64 The as-
tronomical expansion of prisons in the last forty years occurred during
a process of government restructuring that transferred services from the
welfare state to the private realm of market, family, and individual. The
United States set the global trend in cutting social programs while pro-
moting free-market conditions conducive to capital accumulation, re-
sulting in one of the slowest growth rates of spending on basic
social needs.65 Beginning with “Reaganomics” — the Reagan
Administration’s economic policy based on tax cuts, business deregula-
tion, and reductions in federal spending — and extending to the Clinton
Administration’s restructuring of welfare, the United States underwent
a period of intensified privatization.66 Government policymakers cou-
pled this neoliberal dismantling of the social safety net with intensified
carceral intervention in poor communities of color.67 The consolidation
of corporate power in recent decades depended not only on increased
market-based privatization but also on increased punitive control of
marginalized people who are excluded from the market economy
because of racism.68
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
63 Id. at 3–4, 10–25; see JAMES FORMAN, JR., LOCKING UP OUR OWN: CRIME AND PUNISH-
MENT IN BLACK AMERICA (2017) (exploring the “acts and attitudes of African American citizens
and leaders,” id. at 14, with respect to the mass incarceration of black people).
64 HINTON, supra note 52, at 11.
65 See, e.g., DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM 31, 88 (2005); LOÏC
WACQUANT, PUNISHING THE POOR: THE NEOLIBERAL GOVERNMENT OF SOCIAL INSECU-
RITY 11 (Duke Univ. Press 2009) (2004) [hereinafter WACQUANT, PUNISHING THE POOR]; Social
Expenditure — Aggregated Data, ORG. FOR ECON. CO-OPERATION & DEV., https://
stats.oecd.org/Index.aspx?datasetcode=SOCX_AGG# [https://perma.cc/HWT8-D5XM].
66 See, e.g., HARVEY, supra note 65, at 3 (charting the historical roots of this privatization trend
and noting that “[d]eregulation, privatization, and withdrawal of the state from many areas of social
provision have been all too common” among neoliberal states, including the United States); Angela
P. Harris, Rotten Social Background and the Temper of the Times, 2 ALA. C.R. & C.L. L. REV. 131,
138 (2011); see also GWENDOLYN MINK, WELFARE’S END (1998) (challenging the period’s wel-
fare reforms as an assault on poor single mothers).
67 See HENRY A. GIROUX, THE TERROR OF NEOLIBERALISM 58–80 (2004) (connecting ne-
oliberalism to both privatization and racism); GOTTSCHALK, supra note 52, at 10–14; BRETT
STORY, PRISON LAND: MAPPING CARCERAL POWER ACROSS NEOLIBERAL AMERICA 12–19
(2019); WACQUANT, PUNISHING THE POOR, supra note 65, at 151–208 (tracing the expansion of
the carceral government and its racial element); Bernard E. Harcourt, Neoliberal Penality: A Brief
Genealogy, 14 THEORETICAL CRIMINOLOGY 74 (2010); see also ANDREA J. RITCHIE, EPICEN-
TER: CHICAGO: RECLAIMING A CITY FROM NEOLIBERALISM (2019), https://www.
politicalresearch.org/sites/default/files/2019-06/Epicenter%20Chicago%20-Ritchie%20-BLM-
Chicago%206.2019.pdf [https://perma.cc/YZW2-LA95].
68 See DAVIS, ABOLITION DEMOCRACY, supra note 17, at 41 (“[P]rison becomes a way of dis-
appearing people in the false hope of disappearing the underlying social problems they represent.”).
In sum, beginning in the 1960s, U.S. policymakers have supported

elites by intensifying carceral measures in order to address the social
problems and quell the unrest generated by racial capitalism.69 As
Professor Dan Berger explains: “[C]arceral expansion is a form of polit-
ical as well as economic repression aimed at managing worklessness
among the Black and Brown (and increasingly white) working class for
whom global capitalism has limited need.”70 Thus, the relationship be-
tween racial capitalism and carceral punishment extends far beyond ex-
tracting profits from prison labor and private prisons, which does not
characterize most of the prison industrial complex’s operation.71 Rather,
prisons are the state’s response to social crises produced by racial capi-
talism, such as unemployment and unhealthy segregated housing, and
to the rebellions waged by marginalized people who suffer most from
these conditions.72
The physical expansion of prisons is facilitated by criminalizing sub-
ordinated people so that caging them seems ordinary and natural.
Indeed, Critical Resistance co-founder Provost Julia Chinyere Oparah
identifies as a key “logic of incarceration”73 the “racialization of crime”
so that crime is associated with dangerous and violent “black, indige-
nous, immigrant, or other minority populations.”74 Longstanding stere-
otypes of black criminality are marshalled to turn everyday black life
into criminal activities.75 For example, order-maintenance policing re-
lies on an association between the identification of lawless people and
racist notions of criminality to legitimize routine police harassment and
arrest of black people.76 Likewise, during the “crack epidemic” of the
Reagan era, the longstanding devaluation of black motherhood was cru-
cial to converting the “public health problem of drug use during preg-
nancy into a crime, addressed by [arresting and imprisoning] black
women rather than providing them with needed health care.”77
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
69 Berger, How Prisons Serve Capitalism, supra note 60.
70 Id.
71 GILMORE, GOLDEN GULAG, supra note 17, at 21 (noting that “very few prisoners work for
anybody while they’re locked up” and, “[a]lthough the absolute number of private prisons has in-
deed grown, the fact is that 95 percent of all prisons and jails are publicly owned and operated”).
72 Id. at 26 (“In my view, prisons are partial geographical solutions to political economic crises, or-
ganized by the state, which is itself in crisis.”); Berger, How Prisons Serve Capitalism, supra note 60.
73 Julia Chinyere Oparah (formerly known as Julia Sudbury), Transatlantic Visions: Resisting
the Globalization of Mass Incarceration, 27 SOC. JUST., Fall 2000, at 133, 147.
74 Id. at 135.
75 See BUTLER, supra note 59, at 21–28; KHALIL GIBRAN MUHAMMAD, THE CONDEMNA-
TION OF BLACKNESS: RACE, CRIME, AND THE MAKING OF MODERN URBAN AMERICA 88–
145 (2010).
76 Dorothy E. Roberts, Supreme Court Review, Foreword: Race, Vagueness, and the Social
Meaning of Order-Maintenance Policing, 89 J. CRIM. L. & CRIMINOLOGY 775, 806–08 (1999)
[hereinafter Roberts, Race, Vagueness].
77 Dorothy E. Roberts, Democratizing Criminal Law as an Abolitionist Project, 111 NW. U. L.
REV. 1597, 1599 (2017) [hereinafter Roberts, Democratizing]; see DOROTHY E. ROBERTS,
Not only does the prison industrial complex serve as the state’s so-
lution to economic and social problems, but carceral approaches to these
problems are also ever more common beyond prisons. I described this
carceral expansion in a recent issue of this law review:
All institutions in the United States increasingly address social inequality
by punishing the communities that are most marginalized by it. Systems
that ostensibly exist to serve people’s needs — health care, education, and
public housing, as well as public assistance and child welfare — have be-
come behavior modification programs that regulate the people who rely on
them, and these systems resort to a variety of punitive measures to enforce
compliance.78
Public welfare programs are increasingly entangled with criminal
law enforcement.79 People who receive Medicaid or Temporary
Assistance to Needy Families are subjected to intense surveillance by
government agents as a condition of obtaining aid — and if they refuse
aid, they are further subjected to child protective services investiga-
tions.80 Homelessness, public school misbehavior, and health problems
are all criminalized by calling police officers as the first responders to
deal with problems that arise in these contexts.81 The prison, foster
care, and welfare systems operate together to form a cohesive punitive
apparatus that punishes black mothers in particular.82 At the same time,
repressive fetal protection laws and abortion restrictions coalesce to
criminalize pregnancy itself;83 immigration law makes entering the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING OF LIBERTY 154–
62 (1997) [hereinafter ROBERTS, KILLING THE BLACK BODY].
78 Dorothy E. Roberts, Digitizing the Carceral State, 132 HARV. L. REV. 1695, 1700 (2019) (re-
viewing VIRGINIA EUBANKS, AUTOMATING INEQUALITY: HOW HIGH-TECH TOOLS
PROFILE, POLICE, AND PUNISH THE POOR (2018)) [hereinafter Roberts, Digitizing] (footnotes
omitted); see also KAARYN S. GUSTAFSON, CHEATING WELFARE: PUBLIC ASSISTANCE AND
THE CRIMINALIZATION OF POVERTY 43–46 (2011).
79 Roberts, Digitizing, supra note 78, at 1702–04; see Prisons and Class Warfare, supra note 60
(describing how “social welfare agencies . . . have absorbed some of the surveillance and punishment
missions of the police and prison system”).
80 See KHIARA M. BRIDGES, THE POVERTY OF PRIVACY RIGHTS 65–68, 73, 85–86 (2017);
EUBANKS, supra note 78, at 7–9, 152–58; Spencer Headworth, Getting to Know You: Welfare Fraud
Investigation and the Appropriation of Social Ties, 84 AM. SOC. REV. 171, 171 (2019) (showing how
fraud investigators “exploit clients’ social networks to extract” incriminating evidence, damaging
socioeconomically marginalized people’s social support networks); Roberts, Digitizing, supra note
78, at 1701–02; see also Spencer Headworth, Policing Welfare: Procedural Criminalization in Public
Assistance (unpublished manuscript) (on file with author).
81 Roberts, Digitizing, supra note 78, at 1702–06; see also Frank Edwards, Family Surveillance:
Police and Reporting of Child Abuse and Neglect, 5 J. SOC. SCI. 50, 51 (2019) (noting that even
“low-level” contact with police may result in child welfare investigations).
82 Roberts, Prison, Foster Care, supra note 58, at 1491–92.
83 See ROBERTS, KILLING THE BLACK BODY, supra note 77, at 150–201; Michele Goodwin,
Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, 102 CALIF. L. REV.
781, 786 (2014); Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant
Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health,
38 J. HEALTH POL. POL’Y & L. 299, 300–01, 331–35 (2013). On the reproductive justice movement,
United States without documentation a crime;84 and militarized border

security results in deportation, family separation, and detention in pris-
ons and squalid concentration camps.85
As carceral logics take over ever-expanding aspects of our society, so
does the cruelty that government agents visit on people who are the
most vulnerable to state surveillance and confinement. Torture has been
accepted as a technique of racialized carceral control.86 The nation’s
public schools, prisons, detention centers, and hospitals serving poor
people of color are marked not only by stark inequalities but also by
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
see generally LORETTA J. ROSS ET AL., RADICAL REPRODUCTIVE JUSTICE (2017); LORETTA J.
ROSS & RICKIE SOLINGER, REPRODUCTIVE JUSTICE (2017); and JAEL SILLIMAN ET AL., UN-
DIVIDED RIGHTS: WOMEN OF COLOR ORGANIZE FOR REPRODUCTIVE JUSTICE (2004) (de-
scribing activism by women of color for reproductive justice).
84 8 U.S.C. § 1325 (2012). See generally AVIVA CHOMSKY, UNDOCUMENTED: HOW IMMI-
GRATION BECAME ILLEGAL (2014); MARK DOW, AMERICAN GULAG: INSIDE U.S. IMMIGRA-
TION PRISONS (2004); TORRIE HESTER, DEPORTATION: THE ORIGINS OF U.S. POLICY (2017);
KELLY LYTLE HERNÁNDEZ, MIGRA!: A HISTORY OF THE U.S. BORDER PATROL (2010). On
the immigrant rights movement, see ¡MARCHA!: LATINO CHICAGO AND THE IMMIGRANT
RIGHTS MOVEMENT (Amalia Pallares & Nilda Flores-González eds., 2010); AMALIA PALLARES,
FAMILY ACTIVISM: IMMIGRANT STRUGGLES AND THE POLITICS OF NONCITIZENSHIP
(2015); and CHRIS ZEPEDA-MILLÁN, LATINO MASS MOBILIZATION: IMMIGRATION, RACIAL-
IZATION, AND ACTIVISM (2017). On U.S. surveillance of and policing in Puerto Rico, see René
Francisco Poitevin, Political Surveillance, State Repression, and Class Resistance: The Puerto
Rican Experience, 27 SOC. JUST., Fall 2000, at 89, 90–93.
85 STAFF OF H.R. COMM. ON OVERSIGHT & REFORM, 116TH CONG., REP. ON CHILD
SEPARATIONS BY THE TRUMP ADMINISTRATION (Comm. Print 2019), https://oversight.
house.gov/sites/democrats.oversight.house.gov/files/2019-07-2019.%20Immigrant%20Child%20
Separations-%20Staff%20Report.pdf [https://perma.cc/3HXY-76TD]; U.S. DEP’T OF HEALTH &
HUMAN SERVS., OIG ISSUE BRIEF, SEPARATED CHILDREN PLACED IN OFFICE OF REFUGEE
RESETTLEMENT CARE 1–2 (Jan. 2019), https://oig.hhs.gov/oei/reports/oei-BL-18-00511.pdf
[https://perma.cc/A6V8-GBNR]; S. POVERTY LAW CTR., SHADOW PRISONS: IMMIGRANT
DETENTION IN THE SOUTH 4–7, 14–19 (2016), https://www.splcenter.org/sites/default/
files/ijp_shadow_prisons_immigrant_detention_report.pdf [https://perma.cc/AF4M-YBKB]; Smita
Ghosh, How Migrant Detention Became American Policy, WASH. POST (July 19, 2019),
https://www.washingtonpost.com/outlook/2019/07/19/how-migrant-detention-became-american-
policy [https://perma.cc/Y9J7-6FZH]; Sophia Tareen, As Trump Expands Deportation Powers, Im-
migrants Prepare, AP (July 26, 2019), https://www.apnews.com/7a8cca3f25384ab084f8c35faa3c683f
[https://perma.cc/7FHM-P2KT]; Jason Zengerle, How America Got to ‘Zero Tolerance’ on Immigra-
tion: The Inside Story, N.Y. TIMES MAG. (July 16, 2019), https://nyti.ms/2GgLyQ9
[https://perma.cc/9PEQ-DPXQ].
86 See David Garland, Penal Excess and Surplus Meaning: Public Torture Lynchings in
Twentieth-Century America, 39 LAW & SOC’Y REV. 793, 798 (2005) (characterizing public torture
lynchings as “a mode of racial repression . . . that deliberately adopted the forms and rituals of
criminal punishment”); Dorothy Roberts, Torture and the Biopolitics of Race, 62 U. MIAMI L. REV.
229, 230–43 (2008) [hereinafter Roberts, Torture] (describing the history of the U.S. government’s
systematic torture of people of color as a means of racial subjugation in this country and abroad);
Jerome H. Skolnick, American Interrogation: From Torture to Trickery, in TORTURE: A COLLEC-
TION 105, 122 (Sanford Levinson ed., 2004) (explaining that lynchings and whippings of African
Americans were justified by the belief that “blacks are a race of people inferior to any white person”
and that “blacks deserve severe punishment”); see also LAURENCE RALPH, THE TORTURE
LETTERS: RECKONING WITH POLICE VIOLENCE (forthcoming 2020) (recounting the history of
police violence in Chicago).
dehumanizing bodily neglect and abuse committed by police officers and

guards.87 Further, as Rodríguez explains, “incarceration as a logic and
method of dominance is not reducible to the particular institutional form
of jails, prisons, detention centers, and other such brick-and-mortar in-
carcerating facilities.”88 Although prison abolitionists work to end pris-
ons, their ultimate aspiration is to end carceral society — a society that
is governed by a logic of incarceration.
B. Abolition Praxis: Past, Present, Future
Prison abolition theory has past, present, and future aspects, each of
which animates activism simultaneously.89 Prison abolitionists look
back to history to trace the roots of today’s carceral state to the racial
order established by slavery and look forward to imagine a society with-
out carceral punishment.90 Both are critical motivations for abolishing
the prison industrial complex. The case for abolition that is grounded
in history and politics provides a compelling framework for understand-
ing the need to eradicate the entire carceral punishment system as well
as for identifying strategies to accomplish that goal. Indeed, we can see
the extreme cruelty and degradation that characterize today’s peniten-
tiaries, police forces, and executions as the inevitable result of a racially
subordinating system.91
1. Slavery Origins. — Many prison abolitionists have found the roots
of today’s criminal punishment system in the institution of chattel slav-
ery.92 Even before I thought of myself as a prison abolitionist, my anal-
ysis of current criminal justice issues consistently led me to a discussion
of slavery. Whether interrogating racism in the prosecution of black
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
87 See, e.g., Armando Lara-Millán, Public Emergency Room Overcrowding in the Era of Mass
Imprisonment, 79 AM. SOC. REV. 866, 873–80 (2014); Roberts, Digitizing, supra note 78, at 1704–
06; Christine Hauser, Recordings Add Detail in Death of Woman Forced from Florida Hospital,
N.Y. TIMES (Jan. 7, 2016), https://nyti.ms/1mJlJMb [https://perma.cc/E9WS-DLMS].
88 Rodríguez, supra note 29, at 1587.
89 See id. at 1577 (describing abolition “as both a long accumulation and future planning of
acts . . . dispersed across geographies and historical moments”).
90 See id. at 1610–11.
91 See Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. REV. 1156,
1207 (2015) [hereinafter McLeod, Grounded Justice] (“[A] critical abolitionist ethic centers on how
caging or confining human beings in a hierarchically structured, depersonalizing environment de-
veloped through historical practices of overt racial subordination tends inherently toward violence
and degradation.”); see also JONATHAN SIMON, MASS INCARCERATION ON TRIAL 3 (2014) (ar-
guing that, because the conditions it creates are cruel and unusual, mass incarceration is itself un-
constitutional). For selected accounts of prison conditions in the United States today, see U.S.
DEP’T OF JUSTICE, CIVIL RIGHTS DIV., INVESTIGATION OF ALABAMA’S STATE PRISONS FOR
MEN 5–8 (2019), https://www.justice.gov/opa/press-release/file/1150276/download [https://
perma.cc/TH52-X645]; and RIKERS: AN AMERICAN JAIL (PBS 2017).
92 E.g., Kim Gilmore, Slavery and Prison — Understanding the Connections, 27 SOC. JUST.,
Fall 2000, at 195, 196 (discussing the ways the formation of the prison industrial complex is “related
to,” though “distinct from,” histories of racialized chattel slavery).
women for pregnancy-related crimes,93 the disproportionately high

placement of black children in foster care,94 the high rates of incarcera-
tion in black neighborhoods,95 police torture of black suspects,96 or
gang-loitering policing,97 I found it essential to understand these prac-
tices as originating in the enslavement of black people. That analysis
helped me to see how these practices emanated from a carceral system
that continues to perpetuate black people’s subjugated status and, ulti-
mately, to conclude the carceral system cannot be fixed — it must be
abolished.98
The pillars of the U.S. criminal punishment system — police, prisons,
and capital punishment — all have roots in racialized chattel slavery.99
After Emancipation, criminal control functioned as a means of legally
restricting the freedoms of black people and preserving whites’ domi-
nant status.100 Through these institutions, law enforcement continued
to implement the logic of slavery — which regarded black people as
inherently enslaveable with no claim to legal rights101 — to keep them
in their place in the racial capitalist hierarchy.102
(a) Police. — The first police forces in the United States were slave
patrols.103 Beginning in the early 1700s, southern white men formed
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
93 See ROBERTS, KILLING THE BLACK BODY, supra note 77, at 152; Dorothy E. Roberts,
Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy,
104 HARV. L. REV. 1419, 1432–34, 1437–41, 1455 (1991).
94 DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE 9,
233–36, (2002).
95 Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American
Communities, 56 STAN. L. REV. 1271, 1275–76, 1296–99 (2004).
96 Roberts, Torture, supra note 86, at 231, 236.
97 Roberts, Race, Vagueness, supra note 76, at 778–79.
98 Dorothy E. Roberts, Constructing a Criminal Justice System Free of Racial Bias: An Aboli-
tionist Framework, 39 COLUM. HUM. RTS. L. REV. 261, 284–86 (2007) [hereinafter Roberts,
Constructing]; Roberts, Democratizing, supra note 77, at 1604–07.
99 Roberts, Constructing, supra note 98, at 267.
100 Id.; see Gilmore, supra note 92, at 197–98.
101 See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 STAN. L. REV. 1, 34
(1991) (“The new racial classifications [during the U.S. slavery era] offered a basis for legitimating
subordination that was unlike the justifications previously employed. By keying official rules of
descent to national origin the classification scheme differentiated those who were ‘enslaveable’ from
those who were not. Membership in the new social category of ‘Negro’ became itself sufficient
justification for enslaveability.”).
102 See Gilmore, supra note 92, at 198.
103 See ALEX S. VITALE, THE END OF POLICING 45–48 (2017); Mariame Kaba, Foreword to
ANDREA J. RITCHIE, INVISIBLE NO MORE: POLICE VIOLENCE AGAINST BLACK WOMEN
AND WOMEN OF COLOR, at xv (2017) [hereinafter Kaba, Foreword to RITCHIE] (“The origin
story of modern American policing is slave patrols and union busting.”); Andrea Miller, Shadows of
War, Traces of Policing: The Weaponization of Space and the Sensible in Preemption, in CAPTIVAT-
ING TECHNOLOGY: RACE, CARCERAL TECHNOSCIENCE, AND LIBERATORY IMAGINATION
IN EVERYDAY LIFE 85, 88 (Ruha Benjamin ed., 2019) [hereinafter CAPTIVATING TECHNOLOGY]
(“Early iterations of the police in the United States include the slave patrols and night watches of
armed groups that entered slaveholding properties and roamed public

roads to ensure that enslaved people did not escape or rebel against their
enslavers.104 Slave patrols monitored enslaved people to prevent them
from engaging in forbidden activities such as “harboring weapons or
fugitives, conducting meetings, or learning to read or write.”105 They
also used the threat of violence to intimidate enslaved workers into obe-
dience to enslavers.106 Enslaved people who were caught planning
resistance, running away, or defying the slave codes enacted to restrict
them were subjected to violent punishments such as beatings, whip-
pings, mutilation, and forced sale away from their families.107 Modern
police forces are descendants of armed urban patrols like the Charleston
City Guard and Watch, which was established as early as 1783 to con-
stantly monitor and inspect both enslaved and free black residents to
“minimize Negro fraternizing and, more especially, to prevent the
growth of an organized colored community.”108
Enslaved people who worked on plantations and farms were under
the “immediate control and discipline of their respective owners,” who
were often aided by hired overseers.109 The overseers’ job was to en-
force enslaved workers’ total subjugation to enslavers by violently rep-
rimanding perceived disobedience and failures to meet productivity
quotas.110 The violence overseers inflicted on enslaved workers
reflected a fundamental aspect of carceral punishment that survives
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
the U.S. South and Northeast dating back to the early eighteenth century; the Texas Rangers estab-
lished in 1835 in the Southwest; and anti-labor police formations in the late 1800s and early 1900s
modeled after colonial occupation forces elsewhere.”); see also RICHARD C. WADE, SLAVERY IN
THE CITIES: THE SOUTH 1820–1860, at 80 (1964).
104 SALLY E. HADDEN, SLAVE PATROLS: LAW AND VIOLENCE IN VIRGINIA AND THE
CAROLINAS 18–24 (2001).
105 VITALE, supra note 103, at 46.
106 HADDEN, supra note 104, at 105–06, 117.
107 THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619–1860, at 340–42 (1996);
JOHN SHELTON REED, MINDING THE SOUTH 69 (2003); KENNETH M. STAMPP, THE PECU-
LIAR INSTITUTION: SLAVERY IN THE ANTE-BELLUM SOUTH 171–72, 174, 180, 187–88 (1956);
Larry H. Spruill, Slave Patrols, “Packs of Negro Dogs” and Policing Black Communities, 53
PHYLON 42, 51–55 (2016).
108 VITALE, supra note 103, at 46–47 (quoting WADE, supra note 103, at 82).
109 WADE, supra note 103, at 80 (quoting Communications. Charleston Neck, CHARLESTON
COURIER, Sept. 22, 1845, at 2).
110 See EDWARD E. BAPTIST, THE HALF HAS NEVER BEEN TOLD: SLAVERY AND THE
MAKING OF AMERICAN CAPITALISM 121–44 (2014) (“Enslavers used measurement to calibrate
torture in order to force cotton pickers to figure out how to increase their own productivity . . . .”
Id. at 130.); TRISTAN STUBBS, MASTERS OF VIOLENCE: THE PLANTATION OVERSEERS OF
EIGHTEENTH-CENTURY VIRGINIA, SOUTH CAROLINA, AND GEORGIA 2–3 (2018); Matthew
Desmond, In Order to Understand the Brutality of American Capitalism, You Have to Start on the
Plantation, The 1619 Project, N.Y. TIMES MAG. (Aug. 14, 2019), https://nyti.ms/2H59I0w
[https://perma.cc/2DJC-26AJ] (explaining that overseers’ violence was “rational, capitalistic, all part
of the plantation’s design” and noting “punishments rose and fell with global market fluctuations”).
today: the purpose of punishing black people was to reinforce their sub-
jugation to white domination. Hence, enslaved people were punished
for committing offenses defined as insubordination to enslavers, but
were also punished regardless of their culpability for an offense. The
celebrated abolitionist Frederick Douglass, who escaped slavery in
Maryland in 1838,111 emphasizes this point in his portrayal of the over-
seers he encountered while in captivity. His description of Austin Gore,
an overseer who served Colonel Edward Lloyd on a plantation where
Douglass spent two years of his childhood, is especially illuminating.112
Gore was an ideal overseer because he “was one of those who could
torture the slightest look, word, or gesture, on the part of the slave, into
impudence, and would treat it accordingly.”113 Douglass elaborates:
There must be no answering back to him; no explanation was allowed a
slave, showing himself to have been wrongfully accused. Mr. Gore acted
fully up to the maxim laid down by slaveholders, — “It is better that a
dozen slaves suffer under the lash, than that the overseer should be con-
victed, in the presence of the slaves, of having been at fault.” No matter
how innocent a slave might be — it availed him nothing, when accused by
Mr. Gore of any misdemeanor. To be accused was to be convicted, and to
be convicted was to be punished; the one always following the other with
immutable certainty.114
An enslaved man named Demby learned the price of refusing to sub-
mit to Gore’s rule.115 When Demby plunged into a creek to escape being
beaten, Gore shot him dead with a musket.116 Although slave law oc-
casionally permitted the application of criminal homicide to convict
slaveholders who killed their slaves, it exonerated those who killed
slaves who resisted the slaveholders’ lawful authority.117 A “hostile at-
titude” or resistance to corporal punishment on the part of enslaved peo-
ple like Demby provided legal justification for killing them.118
The status of enslaved Africans as the property of their white enslav-
ers meant that, from the enslavers’ perspective, black people were a per-
petual threat to white people’s property — a threat seen as so great it
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
111 John Stauffer & Henry Louis Gates, Jr., Introduction to THE PORTABLE FREDERICK
DOUGLASS, at xix (John Stauffer & Henry Louis Gates, Jr., eds., 2016).
112 See FREDERICK DOUGLASS, NARRATIVE OF THE LIFE OF FREDERICK DOUGLASS, AN
AMERICAN SLAVE (1845), reprinted in THE PORTABLE FREDERICK DOUGLASS, supra note 111,
at 20, 28–31.
113 Id. at 28.
114 Id.
115 See id. at 29–30.
116 See id. Douglass notes that “killing a slave, or any colored person, in Talbot county,
Maryland, is not treated as a crime, either by the courts or the community.” Id. at 30.
117 Scott W. Howe, Slavery as Punishment: Original Public Meaning, Cruel and Unusual Punish-
ment, and the Neglected Clause in the Thirteenth Amendment, 51 ARIZ. L. REV. 983, 1002–03 (2009).
118 Id. at 1003 (quoting Dave v. State, 22 Ala. 23, 33 (1853)).
necessitated employing armed forces to maintain order among the en-

slaved.119 In the aftermath of Emancipation, when slaveholders’ human
property was no longer protected by slave law, “a new set of innovations
and regulation[s] had to emerge, again under the rubric of policing.”120
Like overseers and slave patrols, Jim Crow police and private citizens
who abetted them used terror primarily to enforce racial subjugation,
not to apprehend people culpable for crimes.121 Take, for example, co-
ercive interrogation techniques, now known as “the third degree,” that
have become a staple of modern policing.122 The first stage of lynching,
typically carried out with the participation or sanction of the police, was
often “extract[ing] a confession by whipping or burning the accused.”123
Prior to Miranda v. Arizona,124 which barred the admissibility of pre-
sumptively coerced confessions, southern police routinely used torture
to force blacks to confess to crimes.125 For example, in Brown v.
Mississippi,126 three black tenant farmers were convicted for murdering
a white planter; the sole evidence before the jury consisted of their con-
fessions.127 Those confessions were obtained through police torture, in-
cluding the repeated hanging and whipping of one of the defendants
until he confessed to a dictated statement.128 The other two defendants’
confessions were similarly coerced and tailored.129 When overturning the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
119 See HADDEN, supra note 104, at 18–22.
120 Critical Resistance, Do Black Lives Matter?: Robin D.G. Kelley and Fred Moten in Conver-
sation, at 11:30, VIMEO (Jan. 6, 2015), https://vimeo.com/116111740 [https://perma.cc/W2FQ-
7NZL] [hereinafter Critical Resistance, Do Black Lives Matter?]; see SIDNEY L. HARRING,
POLICING A CLASS SOCIETY: THE EXPERIENCE OF AMERICAN CITIES, 1865–1915, at 250–51
(1983) (arguing that ruling elites used the police to control working-class communities and maintain
the existing order of capitalist relationships).
121 See Garland, supra note 86, at 822 (explaining how lynchings had a “special significance as a
legacy of the personal right of white men to control slaves and to exercise police power over them”);
Timothy V. Kaufman-Osborn, Capital Punishment as Legal Lynching?, in FROM LYNCH MOBS
TO THE KILLING STATE: RACE AND THE DEATH PENALTY IN AMERICA 21, 29 (Charles J.
Ogletree, Jr. & Austin Sarat eds., 2006) (“[L]ynchings . . . were highly ritualized expressive perfor-
mances aimed at communicating the terms of the racial contract to blacks and whites alike.”); Liz
Philipose, The Politics of Pain and the Uses of Torture, 32 SIGNS 1047, 1053 (2007) (explaining that
the circulation of lynching photographs served to exonerate the whites who perpetrated violence
“by suggesting the culpability of the violated” black male); Roberts, Torture, supra note 86, at 231–
34; Skolnick, supra note 86, at 105–06 (“[Lynching] served the double purpose of affirming the God-
given racial superiority of all whites against any black and of intimidating black men who might
think of challenging the reigning social order.”).
122 See Skolnick, supra note 86, at 112–13.
123 Roberts, Torture, supra note 86, at 231.
124 384 U.S. 436 (1966).
125 See id. at 235–36.
126 297 U.S. 278 (1936).
127 Id. at 279.
128 Id. at 281–82.
129 See id. at 281–84.
convictions, the Supreme Court observed that “the signs of the rope on [one
defendant’s] neck were plainly visible during the so-called trial.”130
Even after the civil rights movement, “[p]olice torture of suspects
continues to be a tolerated means of confirming the presumed criminal-
ity of blacks.”131 For example, from the 1970s to the 1990s, white police
officers in Chicago engaged in systematic torture of black residents.132
Under the command of Lieutenant Jon Burge, police coerced dozens of
confessions from suspects by beating them, burning them with radiators
and cigarettes, putting guns in their mouths, placing plastic bags over
their heads, and delivering electric shocks to their ears, noses, fingers,
and genitals.133 Burge’s reign of torture was known and condoned by
police officers, the State’s Attorney’s office, judges, and doctors at Cook
County Hospital.134 Racialized terror that bridged slave patrols, lynch-
ings, and police whippings remained a feature of policing in the post–
Civil Rights Era criminal punishment system.135
Police also serve as an arm of the racial capitalist state by controlling
black and other marginalized communities through everyday physical
intimidation and by funneling those they arrest into jails, prisons, and
detention centers.136 Numerous studies conducted throughout the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
130 Id. at 281 (quoting Brown v. State, 161 So. 465, 470 (Miss. 1935) (Griffith, J., dissenting)).
132 Id.; see Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 BUFF. L. REV.
1275, 1288–90 (1999).
133 Roberts, Torture, supra note 86, at 236; Noah Berlatsky, When Chicago Tortured, THE
ATLANTIC (Dec. 17, 2014), https://www.theatlantic.com/national/archive/2014/12/chicago-police-
torture-jon-burge/383839 [https://perma.cc/6UY7-J4FY]. See generally JOHN CONROY,
UNSPEAKABLE ACTS, ORDINARY PEOPLE: THE DYNAMICS OF TORTURE 21–26, 60–87 (2000)
(providing an account of the Chicago police tortures under Burge’s command).
134 Roberts, Constructing, supra note 98, at 277; see Bandes, supra note 132, at 1288–89, 1331.
136 See BUTLER, supra note 59, at 47–79 (noting the many ways in which the police state trans-
forms “anxiety about black men into law and policy intended to contain and control them,” id. at
48); RITCHIE, supra note 103, at 43–59; MICOL SEIGEL, VIOLENCE WORK: STATE POWER AND
THE LIMITS OF POLICE 20–21 (2018) (arguing that racial division and oppression are central to
capitalism, with the police existing as an “antiblack force,” id. at 21, to produce and enforce those
necessities); VITALE, supra note 103, at 2–4, 34, 50–54, 61–67, 76–78, 100, 178–83 (reviewing in-
creased police involvement with various marginalized groups and disparate use of force against
minority racial groups and concluding that “the police exist primarily as a system for managing and
even producing inequality by suppressing social movements and tightly managing the behaviors of
poor and nonwhite people,” id. at 34); George Lipsitz, Policing Place and Taxing Time on Skid Row,
in POLICING THE PLANET: WHY THE POLICING CRISIS LED TO BLACK LIVES MATTER 123,
126–31 (Jordan T. Camp & Christina Heatherton eds., 2016) (explaining how the criminalization of
poverty and aggressive policing serve to further subjugate the poor and reinforce their “powerless-
ness,” id. at 127); see also Bryan Stevenson, A Presumption of Guilt: The Legacy of America’s History
of Racial Injustice, in POLICING THE BLACK MAN: ARREST, PROSECUTION, AND IMPRISON-
MENT 3, 4–5, 25–26 (Angela J. Davis ed., 2017) (explaining how deep historical forces like the pre-
sumption of black guilt have created a form of “legalized racial subordination,” id. at 5); Rachel
Herzing, Opinion, Big Dreams and Bold Steps Toward a Police-Free Future, TRUTHOUT
(Sept. 16, 2015), https://truthout.org/articles/big-dreams-and-bold-steps-toward-a-police-free-future
nation demonstrate that police engage in rampant racial profiling.137

The increasing militarization of police forces accentuates their role as an
occupying force in communities of color and on Indian reservations.138
Police harassment and violence against residents in poor, nonwhite
neighborhoods is routine.139 Police “brutality” is a misnomer because
it suggests police violence is exceptional. Mariame Kaba, the
founding director of Project NIA,140 explains she “retired the term ‘police
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
[https://perma.cc/K6R9-WUFN] (describing police as “armed protection of state interests . . . [that]
frequently clash with the communities targeted most aggressively by policing”).
137 See, e.g., BUTLER, supra note 59, at 52–53, 59–61; Radley Balko, Opinion, There’s Over-
whelming Evidence That the Criminal-Justice System Is Racist. Here’s the Proof., WASH. POST
(Sept. 18, 2018), https://www.washingtonpost.com/news/opinions/wp/2018/09/18/theres-overwhelm-
ing-evidence-that-the-criminal-justice-system-is-racist-heres-the-proof [https://perma.cc/WVA2-
GTYH] (collecting studies addressing profiling and other issues and concluding that “the evidence
of racial bias in our criminal-justice system isn’t just convincing — it’s overwhelming”); John
Eligon, Stopped, Ticketed, Fined: The Pitfalls of Driving While Black in Ferguson, N.Y. TIMES
(Aug. 6, 2019), https://nyti.ms/2T8PcAU [https://perma.cc/BD67-S558] (describing how black driv-
ers continue to be stopped at far higher rates than white drivers and noting that this disparity has
actually grown in Ferguson, Missouri, despite recent changes to laws).
138 See AM. CIVIL LIBERTIES UNION, WAR COMES HOME: THE EXCESSIVE MILITARIZA-
TION OF AMERICAN POLICING 5, 25–26, 35–39 (2014), https://www.aclu.org/sites/default/files/as-
sets/jus14-warcomeshome-report-web-rel1.pdf [https://perma.cc/44G5-4MLE]; HINTON, supra
note 52, at 184 (describing the “War on Crime” as “an actual violent conflict that involved the use
of military-grade weapons and dangerous patrol tactics and that resulted in real gun battles and
real victims”); VITALE, supra note 103, at 3 (describing police use of military-style weapons and
units and stating that officers, many of whom have military experience, often have a “warrior men-
tality” and “think of themselves as soldiers in a battle with the public rather than guardians of
public safety” (first quoting SUE RAHR & STEPHEN K. RICE, NAT’L INST. OF JUSTICE, U.S. DEP’T
OF JUSTICE, NO. NCJ 248654, BULLETIN: FROM WARRIORS TO GUARDIANS: RECOMMITTING
AMERICAN POLICE CULTURE TO DEMOCRATIC IDEALS 4 (2015), https://permanent.
access.gpo.gov/gpo57170/248654.pdf [https://perma.cc/6VW3-EXN4])); Dian Million, Policing the
Rez: Keeping No Peace in Indian Country, 27 SOC. JUST., Fall 2000, at 101, 111–12 (noting dispro-
portionate rates of incarceration among Native Americans); Jonathan Mummolo, Militarization
Fails to Enhance Police Safety or Reduce Crime but May Harm Police Reputation, 115 PROC.
NAT’L ACAD. SCI. 9181, 9183 (2018); Donna Murch, Crack in Los Angeles: Crisis, Militarization,
and Black Response to the Late Twentieth-Century War on Drugs, 102 J. AM. HIST. 162, 173 (2015);
Fanna Gamal, Note, The Racial Politics of Protection: A Critical Race Examination of Police Mil-
itarization, 104 CALIF. L. REV. 979, 997–98 (2016) (illustrating the connection between the War on
Drugs and police militarization); Kanya Bennett, As We Remember the Militarized Response to the
Ferguson Uprising, Trump Says Civilian Police Are Making “Good Use” of Military Weapons,
ACLU: SPEAK FREELY BLOG (Aug. 8, 2017, 5:15 PM), https://www.aclu.org/blog/racial-
justice/race-and-criminal-justice/we-remember-militarized-response-ferguson-uprising [https://
perma.cc/2NCA-7V6J]; Paul D. Shinkman, Ferguson and the Militarization of Police, U.S. NEWS
& WORLD REP. (Aug. 14, 2014), https://www.usnews.com/news/articles/2014/08/14/ferguson-and-
the-shocking-nature-of-us-police-militarization [https://perma.cc/DHK2-NEJR] (documenting in-
creasing use of military weapons by police across the country against a backdrop of racial tension
in Ferguson, Missouri).
139 See generally BUTLER, supra note 59 (examining police violence against black men);
RITCHIE, supra note 103 (examining police violence against black women and women of color).
140 Mariame Kaba, About Me, BEING MK, http://mariamekaba.com [https://perma.cc/
HG73-SEE8].
brutality’” because “[i]t is meaningless, as violence is inherent to polic-

ing.”141 Similarly, Professor Micol Seigel calls policing “violence
work.”142 Police normally treat residents in communities of color in an
aggressive fashion — shouting commands, handcuffing even children,
throwing people to the ground, and tasing, beating, and kicking them.143
For young men of color, the risk of being killed by the police is shock-
ingly high and police use of force is among the leading causes of death.144
Black women, women of color, and queer women are especially vulner-
able to gendered forms of sexual violence at the hands of police.145
These violent tactics are not in response to violent crime. Indeed, police
officers actually spend a small fraction of time stopping violent
offenders.146 Most of the time, officers are engaged in patrolling ordi-
nary people who are simply going about their everyday activities, gen-
erating high-volume arrests for petty infractions.147
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
141 Kaba, Foreword to RITCHIE, supra note 103, at xv; see KRISTIAN WILLIAMS, OUR ENEMIES
IN BLUE: POLICE AND POWER IN AMERICA (2004).
142 SEIGEL, supra note 136, at 9.
143 See BUTLER, supra note 59, at 49–56; RITCHIE, supra note 103, at 49, 154, 165–69, 178; THE
W. BALT. COMM’N ON POLICE MISCONDUCT & THE NO BOUNDARIES COALITION, OVER-
POLICED, YET UNDERSERVED: THE PEOPLE’S FINDINGS REGARDING POLICE MISCON-
DUCT IN WEST BALTIMORE 10–15 (2016), http://www.noboundariescoalition.com/wp-content/
uploads/2016/03/No-Boundaries-Layout-Web-1.pdf [https://perma.cc/MB3F-8R4P] (detailing sto-
ries of police misconduct told by witnesses and victims in the Sandtown-Winchester neighborhood,
which is predominantly African American, and revealing a belief that there is racism in law en-
forcement); Black Lives Upended by Policing: The Raw Videos Sparking Outrage, N.Y. TIMES (Apr.
19, 2018), https://nyti.ms/2vbLdWy [https://perma.cc/B4JX-Z8ZV]; Daniel Funke & Tina Susman,
From Ferguson to Baton Rouge: Deaths of Black Men and Women at the Hands of Police, L.A.
TIMES (July 12, 2016), https://www.latimes.com/nation/la-na-police-deaths-20160707-snap-html-
story.html [https://perma.cc/2STQ-P9PX]; Mark Puente, Undue Force, BALT. SUN (Sept. 28, 2014),
http://data.baltimoresun.com/news/police-settlements [https://perma.cc/ZQ3D-HCPU] (document-
ing cases of alleged police brutality and the millions of dollars the city has paid to settle lawsuits
alleging that officers used excessive force); Rob Arthur, New Data Shows Police Use More Force
Against Black Citizens Even Though Whites Resist More, SLATE (May 30, 2019),
https://slate.com/news-and-politics/2019/05/chicago-police-department-consent-decree-black-lives-
matter-resistance.html [https://perma.cc/S5GT-K7VX]; Justin P. Hicks, Are Grand Rapids Police
Alone in Handcuffing Black Youth at Gunpoint?, MLIVE (Nov. 9, 2018), https://
www.mlive.com/news/grand-rapids/2018/11/handcuffing_unarmed_youths_the.html [https://perma.
cc/Y283-72TS]; see also City of Los Angeles v. Lyons, 461 U.S. 95, 113–20 (1983) (Marshall, J.,
dissenting).
144 Frank Edwards, Hedwig Lee & Michael Esposito, Risk of Being Killed by Police Use of Force
in the United States by Age, Race-Ethnicity, and Sex, 116 PROC. NAT’L ACAD. SCI. 16793, 16794
(2019) (finding the risk of being killed by police is highest for black men, who, at current levels of
risk, face about a one in 1000 chance of being killed by police over the course of their lives).
145 See RITCHIE, supra note 103, at 104–26.
146 See Mychal Denzel Smith, Abolish the Police. Instead, Let’s Have Full Social, Economic,
and Political Equality, THE NATION (Apr. 9, 2015), https://www.thenation.com/article/abolish-
police-instead-lets-have-full-social-economic-and-political-equality [https://perma.cc/5AV2-7KP5].
147 See BUTLER, supra note 59, at 61–64; VITALE, supra note 103, at 31.
Like the Black Codes and the slave codes before them, order-
maintenance policies give police wide discretion to control black peo-
ple’s presence on public streets.148 Law enforcement continues to
enforce the logic of slave patrols, to view black people as a threat to the
security of propertied whites, and to contain the possibility of black re-
bellion.149 To Professor Fred Moten, police officers killed Michael
Brown and Eric Garner because these black men represented “insurgent
black life,” which “constituted a threat to the order that [police] repre-
sent[] and . . . [are] sworn to protect.”150 There are numerous examples
of state officials dispatching police to silence black protest, including the
assassination of Black Panther Party leader Fred Hampton by the
Chicago Police Department and the military-style assault on protesters
in Ferguson, Missouri, after the killing of Michael Brown.151 The recent
spate of “BBQ Beckys” — white residents who call 911 on black men,
women, and children engaged in harmless public activities like barbe-
quing in a park or selling bottled water on a sidewalk152 — spotlights
the role of police to keep black people in their place for the benefit of
white citizens.153
Abolitionists also include state surveillance — another descendant of
the slave patrol154 — as a major component of carceral punishment.155
Today’s computerized predictive policing is a high-tech version of vague
loitering and vagrancy laws, which historically gave “‘license to police
officers to arrest people purely on the basis of race-based suspicion’ [by]
categorically identifying black people as lawless apart from their crimi-
nal conduct.”156 I previously described the situation in this law review
as follows:
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
148 Roberts, Race, Vagueness, supra note 76, at 779–80; see also BUTLER, supra note 59, at 65;
Jesse McKinley, The “Gravity Knife” Led to Thousands of Questionable Arrests. Now It’s Legal,
N.Y. TIMES (May 31, 2019), https://nyti.ms/2WzTohi [https://perma.cc/R3P8-SYRS].
149 See SIMONE BROWNE, DARK MATTERS: ON THE SURVEILLANCE OF BLACKNESS 22–
24 (2015) (suggesting “how certain surveillance technologies installed during slavery to monitor and
track blackness as property . . . anticipate the contemporary surveillance of racialized subjects”);
Miller, supra note 103.
150 Critical Resistance, Do Black Lives Matter?, supra note 120, at 5:16.
151 See JEFFREY HAAS, THE ASSASSINATION OF FRED HAMPTON: HOW THE FBI AND THE
CHICAGO POLICE MURDERED A BLACK PANTHER (2010); Shinkman, supra note 138.
152 Bill Hutchinson, From “BBQ Becky” to “Golfcart Gail,” List of Unnecessary 911 Calls Made
on Blacks Continues to Grow, ABC NEWS (Oct. 19, 2018), https://abcnews.go.com/US/bbq-becky-
golfcart-gail-list-unnecessary-911-calls/story?id=58584961 [https://perma.cc/A9XL-Q3KR].
153 See Chan Tov McNamarah, White Caller Crime: Racialized Police Communication & Exist-
ing While Black, 24 MICH. J. RACE & L. (forthcoming 2019), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3312512 [https://perma.cc/R8SP-5VXW].
154 See BROWNE, supra note 149, at 16–21.
155 See McLeod, Grounded Justice, supra note 91, at 1164, 1179, 1219; Berger, Kaba & Stein,
supra note 45.
156 Roberts, Digitizing, supra note 78, at 1714 (quoting Roberts, Race, Vagueness, supra note 76,
at 806); see MUHAMMAD, supra note 75, at 1–14 (arguing that social scientists in the early twentieth
Law enforcement agencies nationwide collect and store vast amounts of

data about past crimes, analyze these data using mathematical algorithms
to predict future criminal activity, and incorporate these forecasts in their
strategies for policing individuals, groups, and neighborhoods. Judges use
big-data predictive analytics to inform their decisions about pretrial deten-
tion, bail, sentencing, and parole. Automated risk assessments help to de-
termine whether or not defendants go to prison, the type of facility to which
they are assigned, how long they are incarcerated, and the conditions of
their release.157
Some proponents of artificial intelligence claim these technologies
help people make more objective decisions that are not tainted by hu-
man biases.158 However, predictive algorithms have been revealed to
“disproportionately identify African Americans as likely to commit
crimes in the future.”159 This is because “[c]rime data collection reflects
discriminatory policing. . . . [P]olice routinely bias data collection against
black residents by patrolling their neighborhoods with far greater
intensity than white neighborhoods.”160 Risk assessment models that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
century created a “statistical discourse,” id. at 5, about black crime that supported the stereotype
that black people were innately criminal).
157 Roberts, Digitizing, supra note 78, at 1716; see ANDREW GUTHRIE FERGUSON, THE RISE
OF BIG DATA POLICING: SURVEILLANCE, RACE, AND THE FUTURE OF LAW ENFORCEMENT
2–6 (2017); Andrew Guthrie Ferguson, Illuminating Black Data Policing, 15 OHIO ST. J. CRIM. L.
503, 505–08 (2018); Ric Simmons, Big Data and Procedural Justice: Legitimizing Algorithms in the
Criminal Justice System, 15 OHIO ST. J. CRIM. L. 573, 573 (2018); Jason Tashea, Calculating Crime,
103 A.B.A. J. 54, 56–57 (2017); Anna Maria Barry-Jester, Ben Casselman & Dana Goldstein, The
New Science of Sentencing: Should Prison Sentences Be Based on Crimes That Haven’t Been Com-
mitted Yet?, MARSHALL PROJECT (Aug. 4, 2015, 7:15 AM), https://www.
themarshallproject.org/2015/08/04/the-new-science-of-sentencing [https://perma.cc/R6PG-GPTU].
See generally Sarah Brayne, Big Data Surveillance: The Case of Policing, 82 AM. SOC. REV. 977
(2017) (describing how the Los Angeles Police Department’s access to big data impacts its surveil-
lance practices); Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U.
PA. L. REV. 327, 329–36 (2015) (discussing the Fourth Amendment implications of using big data in
policing).
158 See, e.g., sources cited in Roberts, Digitizing, supra note 78, at 1718.
159 Id.; see Kelly Hannah-Moffat & Kelly Struthers Montford, Unpacking Sentencing Algorithms:
Risk, Racial Accountability and Data Harms, in PREDICTIVE SENTENCING: NORMATIVE AND
EMPIRICAL PERSPECTIVES 175, 187–88 (Jan W. de Keijser et al. eds., 2019); Malkia Amala Cyril,
Black America’s State of Surveillance, THE PROGRESSIVE (Mar. 30, 2015), https://
progressive.org/magazine/black-america-s-state-surveillance-cyril [https://perma.cc/37CT-N3YH];
Karen Hao, AI Is Sending People to Jail — And Getting It Wrong, MIT TECH. REV. (Jan. 21,
2019), https://www.technologyreview.com/s/612775/algorithms-criminal-justice-ai [https://perma.cc/
3G9H-LMZ2].
160 Roberts, Digitizing, supra note 78, at 1719; see RUHA BENJAMIN, RACE AFTER TECHNOL-
OGY: ABOLITIONIST TOOLS FOR THE NEW JIM CODE 82–84 (2019); Nick Pinto, NYPD Disputes
Gang Database Numbers — But Its Math Doesn’t Add Up, THE INTERCEPT (June 14,
2018, 2:51 PM), https://theintercept.com/2018/06/14/nypd-gang-database-city-council-dermot-shea
[https://perma.cc/5TFH-JA9S]; see also CLARE GARVIE ET AL., CTR. ON PRIVACY & TECH. AT
GEORGETOWN LAW, THE PERPETUAL LINE-UP: UNREGULATED POLICE FACE RECOGNI-
TION IN AMERICA 53–57 (2016), https://www.perpetuallineup.org/sites/default/files/2016-12/
The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20
at%20Georgetown%20Law%20-%20121616.pdf [https://perma.cc/976X-2YYM].
import institutionally biased data become a “self-fulfilling feedback

loop” where the prediction ensures future detection.161 The rise of com-
puterized risk assessments in the carceral punishment system reinforces
the detachment of punishment from culpability and furthers the crimi-
nalization of whole communities. Computerized predictions identify
people for government agencies to regulate from the moment of birth,
without any regard to their actual responsibility for causing social harm:
police gang databases have included toddlers.162 Thus, the state uses
artificial intelligence and predictive technologies to reproduce existing
inequalities while creating new modes of carceral control and foreclosing
imagination of a more democratic future.163
(b) Prisons. — During the slavery era, prison populations were com-
posed almost exclusively of white people.164 When slavery was abol-
ished, the demographics of prisons shifted dramatically.165 Southern law
enforcement began to charge formerly enslaved African Americans with
crimes and incarcerate them in growing numbers.166 Imprisonment and
the convict leasing system maintained black people’s status as a disen-
franchised and involuntary labor force for whites.167 In its 1871 decision
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
161 Ferguson, Illuminating Black Data Policing, supra note 157, at 516; see also CATHY O’NEIL,
WEAPONS OF MATH DESTRUCTION 27 (2016); William S. Isaac, Hope, Hype, and Fear: The
Promise and Potential Pitfalls of Artificial Intelligence in Criminal Justice, 15 OHIO ST. J. CRIM.
L. 543, 550–51 (2018) (describing a study finding a “dramatic increase in the predicted odds of
targeting” areas already believed by law enforcement to be “high in crime,” id. at 550).
162 Beware of Gangster Babies: Calif. Database Slammed, CBS NEWS (Aug. 15, 2016, 9:31 AM),
https://www.cbsnews.com/news/calgang-california-gang-database-slammed-listing-babies-privacy-
concerns [https://perma.cc/XT9L-9EVP]; see also HINTON, supra note 52, at 218–49 (describing
federal juvenile delinquency policies during the 1970s that regulated black children based on pre-
dictions that they would commit future crimes).
163 See BENJAMIN, RACE AFTER TECHNOLOGY, supra note 160; CAPTIVATING TECHNOL-
OGY, supra note 103; Roberts, Digitizing, supra note 78, at 1699, 1712–13. See generally MAYA
SCHENWAR & VICTORIA LAW, PRISON BY ANY OTHER NAME: THE HARMFUL CONSE-
QUENCES OF POPULAR REFORMS (forthcoming July 2020) (discussing data-driven and electronic
forms of state control and surveillance that are characterized as progressive alternatives).
165 Id.
166 See JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON DISENFRANCHISE-
MENT AND AMERICAN DEMOCRACY 57 (2006) (“In Alabama, for example, nonwhites made up
just 2 percent of the prison population in 1850, but 74 percent by 1870.”); see also Angela Behrens
et al., Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Dis-
enfranchisement in the United States, 1850–2002, 109 AM. J. SOC. 559, 560 (2003) (drawing con-
nections between race, criminal punishment, and felon disenfranchisement laws in U.S. history).
167 See DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT
OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 5–6 (2009) (offering a history
of convict leasing and “the centrality of its role in the web of restrictions put in place to suppress
black citizenship”); id. at 9 (“By 1900, the South’s judicial system had been wholly reconfigured to
make one of its primary purposes the coercion of African Americans to comply with the social
customs and labor demands of whites.”); SARAH HALEY, NO MERCY HERE: GENDER, PUNISH-
MENT, AND THE MAKING OF JIM CROW MODERNITY 58–118 (2016) (comparing the experience
of black females in the southern prison-labor system to the experience of slavery); TALITHA L.
LEFLOURIA, CHAINED IN SILENCE: BLACK WOMEN AND CONVICT LABOR IN THE NEW
Ruffin v. Commonwealth,168 the Virginia Supreme Court of Appeals af-

firmed the similar status of slave and prisoner when it ruled that an
incarcerated convict was “for the time being the slave of the State. He
is civiliter mortuus; and his estate, if he has any, is administered like
that of a dead man.”169 Likewise, black people convicted of petty
offenses were “sold as punishment for crime” at public auctions as if
they were still enslaved.170
A key assertion of prison abolition theory is that criminalization of
black people following Emancipation served to maintain the racial cap-
italist system that had been built on slavery.171 In an interview pub-
lished in 2005, Professor Angela Y. Davis explained her ideas on the link
between slavery and prison abolition:
Now I am trying to think about the ways that the prison reproduces forms
of racism based on the traces of slavery that can still be discovered within
the contemporary criminal justice system. There is, I believe, a clear rela-
tionship between the rise of the prison-industrial-complex in the era of
global capitalism and the persistence of structures in the punishment system
that originated with slavery.172
In other words, the criminalization and imprisonment of black people
following the Civil War are a critical link in the historical chain that ties
the prison industrial complex to slavery.
Criminal punishment was a chief way the southern states nullified
the Reconstruction Amendments, reinstated the white power regime,
and made free blacks vulnerable to labor exploitation and disenfran-
chisement. Following the formal abolition of slavery, southern states
targeted black men, women, and children for imprisonment by passing
criminal laws known as Black Codes, modeled after the slave codes,
which prohibited their freedom of movement, contract, and family
life.173 Between 1865 and 1866, legislatures “enacted harsh vagrancy
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
SOUTH 61–102 (2015) (same); DAVID M. OSHINSKY, “WORSE THAN SLAVERY”: PARCHMAN
FARM AND THE ORDEAL OF JIM CROW JUSTICE 31–84 (1996) (describing the rise of prison farms
and convict leasing in the post–Civil War South).
168 62 Va. (21 Gratt.) 790 (1871).
169 Id. at 796.
170 Kamal Ghali, No Slavery Except as a Punishment for Crime: The Punishment Clause and
Sexual Slavery, 55 UCLA L. REV. 607, 627 & n.123 (2008).
171 See McLeod, Grounded Justice, supra note 91, at 1188 (“[C]riminal law enforcement func-
tioned as the primary mechanism for the continued subordination of African Americans for profit
[after the Civil War].”).
172 DAVIS, ABOLITION DEMOCRACY, supra note 17, at 35.
173 W.E.B. DU BOIS, BLACK RECONSTRUCTION 166–80 (Atheneum Publishers, Inc. 1976)
(1935); FONER, RECONSTRUCTION, supra note 41, at 199–203; 1 HERBERT HILL, BLACK
LABOR AND THE AMERICAN LEGAL SYSTEM 13–14 (1977); THEODORE BRANTNER WILSON,
THE BLACK CODES OF THE SOUTH 61–80 (1965); Bryan Stevenson, Slavery Gave America a Fear
of Black People and a Taste for Violent Punishment. Both Still Define Our Criminal-Justice Sys-
tem., N.Y. TIMES MAG. (Aug. 14, 2019), https://nyti.ms/2OQ49ZV [https://perma.cc/SBC6-CME4]
[hereinafter Stevenson, Slavery].
laws, apprenticeship laws, criminal penalties for breach of contract, and

extreme punishments for blacks, all in an effort to control black la-
bor.”174 Black people who were out of work or simply present in public
without adequate reason were routinely arrested for vagrancy, giving
white officials license to jail them.175 Blacks were also arrested and
given long sentences for petty offenses that whites engaged in without
consequence. Writing in 1893, journalist and activist Ida B. Wells gave
the example of twelve black men who were imprisoned in South
Carolina “on no other finding but a misdemeanor commonly atoned for
by a fine of a few dollars, and which thousands of the state’s inhabitants
[white] are constantly committing with impunity — the carrying of con-
cealed weapons.”176
As the Court’s Timbs v. Indiana177 decision last Term discussed,
Black Codes also employed economic sanctions to consign blacks to a
form of debt slavery that coerced them into onerous involuntary labor.178
In the decades after Reconstruction, fines kept many formerly enslaved
people in forced servitude to white landowners.179 Activist Mary
Church Terrell warned in 1907 that the peonage system kept black peo-
ple perpetually enslaved. “[T]here are scores, hundreds perhaps, of col-
oured men in the South to-day who are vainly trying to repay fines and
sentences imposed upon them five, six, or even ten years ago,” she
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
174 Pamela Brandwein, Slavery as an Interpretive Issue in the Reconstruction Congresses, 34
LAW & SOC’Y REV. 315, 324 (2000); see also Michele Goodwin, The Thirteenth Amendment: Mod-
ern Slavery, Capitalism, and Mass Incarceration, 104 CORNELL L. REV. 899, 933–52 (2019) [here-
inafter Goodwin, Thirteenth Amendment] (describing Black Codes, convict leasing, debt peonage,
and apprenticeship, “which entrapped the newly emancipated and freed Blacks into unpaid labor
and incarceration,” id. at 933).
175 BLACKMON, supra note 167, at 1; DENNIS CHILDS, SLAVES OF THE STATE: BLACK IN-
CARCERATION FROM THE CHAIN GANG TO THE PENITENTIARY 63 (2015); MARY ELLEN
CURTIN, BLACK PRISONERS AND THEIR WORLD, ALABAMA, 1865–1900, at 45–46 (2000);
HALEY, supra note 167, at 30; LEFLOURIA, supra note 167, at 58–59; ALEX LICHTENSTEIN,
TWICE THE WORK OF FREE LABOR: THE POLITICAL ECONOMY OF CONVICT LABOR IN
THE NEW SOUTH 169 (1996).
176 Ida B. Wells, The Convict Lease System, in THE REASON WHY THE COLORED AMERICAN
IS NOT IN THE WORLD’S COLUMBIAN EXPOSITION: THE AFRO-AMERICAN’S CONTRIBU-
TION TO COLUMBIAN LITERATURE 23, 25 (Robert W. Rydell ed., 1999) (alteration in original)
(quoting George W. Cable, THE SILENT SOUTH, TOGETHER WITH THE FREEDMAN’S CASE IN
EQUITY AND THE CONVICT LEASE SYSTEM 152 (New York, Charles Scribner’s Sons 1885)).
177 139 S. Ct. 682 (2019).
178 See id. at 688–89.
179 See id.; see also JACQUELINE JONES, THE DISPOSSESSED: AMERICA’S UNDERCLASSES
FROM THE CIVIL WAR TO THE PRESENT 107 (1992) (estimating “as many as one-third of all
[sharecroppers] in Alabama, Mississippi, and Georgia were being held against their will in 1900”);
JAY R. MANDLE, NOT SLAVE, NOT FREE: THE AFRICAN AMERICAN ECONOMIC EXPERI-
ENCE SINCE THE CIVIL WAR 21–23 (1992) (describing the exploitative system of sharecropping).
wrote.180 By compelling emancipated blacks to work for whites in pay-

ment of debts on threat of incarceration, the law substituted the uncon-
stitutional system of chattel slavery with a legal system of peonage.181
Also adjoined to these forms of legally enforced servitude was the
practice of systematically forcing black prisoners to toil on chain gangs
and leasing black convicts as labor to planters and companies. By mak-
ing free black people criminals, white authorities could compel them to
work against their will in a system that not only constituted “slavery by
another name,”182 but also was so violent that it was “worse than slav-
ery.”183 Between 1865 and 1880, every former Confederate state except
Virginia established a system of leasing large numbers of black prisoners
to railroads, coal mines, and other industries that were rebuilding infra-
structures devastated by the Civil War.184 Private lessees had complete
custody and control of prisoners and were motivated to maximize their
profits by extracting as much labor as possible with little incentive to
preserve prisoners’ welfare or lives.185 The result was rampant punish-
ment, torture, and killing of prisoners with complete impunity.186
State exploitation of prison labor reinforced a gendered and sexual-
ized form of white domination of black women.187 Black women were
not protected by Victorian norms of femininity, which shielded most
white women from the degradation of carceral violence and forced
labor.188 To the contrary, black women were far more likely than white
women to be arrested for violating racialized gender standards by
engaging in behavior deemed to be masculine, like public quarreling.189
The wildly disparate treatment of white women and black women ar-
rested for similar crimes is mind-boggling: for example, “[b]etween 1908
and 1938, only four white women were ever sentenced to the chain gang
in Georgia, compared with almost two thousand Black women.”190
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
180 Brief for Petitioners at 29, Timbs, 139 S. Ct. 682 (No. 17-1091) (quoting Mary Church Terrell,
Peonage in the United States: The Convict Lease System and the Chain Gangs, 62 NINETEENTH
CENTURY & AFTER 306, 313 (1907)).
181 See Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy,
102 COLUM. L. REV. 973, 981 (2002).
182 See BLACKMON, supra note 167 (naming convict leasing as “slavery by another name”).
183 See OSHINSKY, supra note 167, at 55–84; see also MATTHEW J. MANCINI, ONE DIES, GET
ANOTHER: CONVICT LEASING IN THE AMERICAN SOUTH, 1866–1928, at 22 (1996).
184 See Howe, supra note 117, at 1009–10.
185 See OSHINSKY, supra note 167, at 56–60.
186 BLACKMON, supra note 167, at 70–71.
187 See generally HALEY, supra note 167; LEFLOURIA, supra note 167; Priscilla A. Ocen, Pun-
ishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners, 100 CALIF. L.
REV. 1239, 1258–69 (2012).
188 See HALEY, supra note 167, at 75; LEFLOURIA, supra note 167, at 126–27; Ocen, supra note
187, at 1262.
189 See HALEY, supra note 167, at 29–30; Ocen, supra note 187, at 1262.
190 Ocen, supra note 187, at 1262.
Recent investigations by Professors Sarah Haley and Talitha

LeFlouria provide critical documentation of the previously unacknowl-
edged extent of black women’s involvement in convict leasing, chain
gangs, and forced domestic labor, dramatically expanding our under-
standing of antiblack violence and carceral control during the Jim Crow
era.191 Haley frames the common practice of chain-gang overseers
whipping black female convict laborers as “sexualized gender- and race-
specific rituals of violence mark[ing] the convict camp as a pornographic
site” and producing a spectacle of gendered racial terror.192 Newspapers
also routinely vilified black women accused of crimes.193 Black women
resisted in multiple ways, including as organized club women, blues lyr-
icists, and incarcerated petitioners and saboteurs.194 Violence against
enslaved and incarcerated black women was essential to preserving the
racial capitalist state.195 This state, in turn, constructed an ideology of
black female depravity and deviance,196 which undergirds black
women’s higher rates of incarceration to this day.197
I have emphasized how during the slavery and Jim Crow eras, state
agents meted out punishment to black people without regard to their
guilt or innocence. Criminalizing black people entailed both defining
crimes so as to make black people’s harmless, everyday activities legally
punishable and punishing black people regardless of their culpability for
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
191 HALEY, supra note 167; LEFLOURIA, supra note 167. For additional historical scholarship
on the criminalization of black women and girls, see TERA EVA AGYEPONG, THE CRIMINALI-
ZATION OF BLACK CHILDREN: RACE, GENDER, AND DELINQUENCY IN CHICAGO’S JUVE-
NILE JUSTICE SYSTEM, 1899–1945 (2018); KALI N. GROSS, COLORED AMAZONS: CRIME,
VIOLENCE, AND BLACK WOMEN IN THE CITY OF BROTHERLY LOVE, 1880–1910 (2006);
CHERYL D. HICKS, TALK WITH YOU LIKE A WOMAN: AFRICAN AMERICAN WOMEN,
JUSTICE, AND REFORM IN NEW YORK, 1890–1935 (2010); and Sowande’ Mustakeem, “Armed
with a Knife in Her Bosom”: Gender, Violence, and the Carceral Consequences of Rage in the Late
19th Century, 100 J. AFR. AM. HIST. 385 (2015).
192 HALEY, supra note 167, at 91.
193 Id. at 27.
194 Id. at 122 (describing activism by the National Association of Colored Women); id. at
204–05, 214.
195 Id. at 3 (“State violence alongside gendered forms of labor exploitation made the New South
possible, not as a departure from the Old, but as a reworking and extension of previous structures
of captivity and abjection through gendered capitalism.”); ROBERTS, KILLING THE BLACK BODY,
supra note 77, at 22–55 (describing how the reproductive capacity of enslaved women was exploited
to preserve and expand the slave state).
196 See HALEY, supra note 167, at 3; ROBERTS, KILLING THE BLACK BODY, supra note 77, at
10–12.
197 See RITCHIE, supra note 103, at 43–44; Kimberlé W. Crenshaw, From Private Violence to
Mass Incarceration: Thinking Intersectionally About Women, Race, and Social Control, 58 UCLA
L. REV. 1418, 1427 (2012) (exploring the “structural and institutional intersections that contribute
to the risk and consequence of punishment for women of color [and the] discursive intersections
that effectively marginalize, if not wholly erase, the significance of their vulnerability”); Roberts,
Prison, Foster Care, supra note 58, at 1491–93 (offering an intersectional analysis of the punishment
of black mothers in the prison and foster care systems).
crimes. Thus, for more than a century, vague vagrancy and antiloitering
ordinances have given police officers license to arrest black people for
standing in public streets — with no attention to whether or not their
presence caused any harm to anyone.198 The purpose of carceral pun-
ishment was to maintain a racial capitalist order rather than to redress
social harms — not to give black people what they deserved, but to keep
them in their place. Today, the state still aims to control populations
rather than judge individual guilt or innocence, to “manage social
inequalities” rather than remedy them.199 A large body of social science
literature explains criminal punishment as a form of social control of
marginalized people.200 Professor Issa Kohler-Hausmann, for example,
argues that New York City criminal courts that handle misdemeanors
“have largely abandoned the adjudicative model of criminal law admin-
istration — concerned with deciding guilt and punishment in specific
cases” — and instead follow a “managerial model — concerned with
managing people through engagement with the criminal justice system
over time.”201 By marking people for involvement in “misdemeanor-
land,” forcing them to engage in burdensome procedural hassles, and
requiring them to engage in disciplinary activities,202 this gargantuan
branch of the criminal punishment system exerts social control over the
city’s black communities, with no real regard for residents’ culpability
for crime.
The explosion in imprisonment of African Americans at the end of
the twentieth century represents the continuation of trends that origi-
nated even before the century’s start. In describing the rise of convict
leasing, W.E.B. Du Bois notes a fundamental feature of post-slavery
carceral punishment: the disconnect between the rise of prisons and
crime rates. “The whole criminal system came to be used as a method
of keeping Negroes at work and intimidating them,” Du Bois writes in
Black Reconstruction.203 “Consequently there began to be a demand of
jails and penitentiaries beyond the natural demand due to the rise in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
198 Roberts, Race, Vagueness, supra note 76, at 788. This is not to say that prison abolition applies
only to innocent or nonviolent people; prison abolitionists aim to end all incarceration and to create
a society where no one is imprisoned.
199 Roberts, Digitizing, supra note 78, at 1712.
200 See, e.g., BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BRO-
KEN WINDOWS POLICING 23–55 (2001); MARC NEOCLEOUS, THE FABRICATION OF SOCIAL
ORDER: A CRITICAL THEORY OF POLICE POWER 92–115 (2000); WACQUANT, PUNISHING
THE POOR, supra note 65, at xix; Christian Parenti, Crime as Social Control, 27 SOC. JUST., Fall
2000, at 43.
201 ISSA KOHLER-HAUSMANN, MISDEMEANORLAND: CRIMINAL COURTS AND SOCIAL
CONTROL IN AN AGE OF BROKEN WINDOWS POLICING 4 (2018).
202 See id. at 3–5; id. at 10 (laying out the concepts of “marking,” “procedural hassle,” and “per-
formance” embodied in misdemeanor management).
203 DU BOIS, supra note 173, at 506.
crime.”204 In a complement to Du Bois’s observations about the eco-

nomic motivations for incarcerating black people, Professor Alex
Lichtenstein argues that social and political forces also produce higher
incarceration rates:
Stable incarceration rates appear in periods of white racial hegemony and
a stable racial order, such as that secured by slavery in the first half of the
19th century or Jim Crow during the first half of the 20th. Correspondingly,
sudden rises in incarceration, especially of minorities, tend to appear one
generation after this racial hegemony has been cracked, as in the first and
second Reconstructions of emancipation and civil rights.205
Thus, the skyrocketing prison population in the second half of the twen-
tieth century cannot be explained solely as a response to increases in
crime.206 Prison expansion instead reflects a response to the needs of
rising neoliberal racial capitalism that addresses growing socioeconomic
inequality with punitive measures.207
The disconnect between social harm and carceral punishment
is evident not only in state regulation of marginalized people
but also in the immunity granted to state agents who commit
social harms.208 For reasons both legal and political, police,209
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
204 Id.
205 Alex Lichtenstein, The Private and the Public in Penal History: A Commentary on Zimring
and Tonry, in MASS IMPRISONMENT: SOCIAL CAUSES AND CONSEQUENCES 171, 176 (David
Garland ed., 2001).
206 See, e.g., HINTON, supra note 52, at 175 (noting that prison expansion and incarceration rates
in the 1970s had “little relationship to actual crime rates” and instead “correlated directly to the
number of black residents and the extent of socioeconomic inequality within a given state”);
MURAKAWA, supra note 52, at 2–4; THE GROWTH OF INCARCERATION, supra note 54, at 104–
29 (finding that “[t]he policies and practices that gave rise to unprecedented high rates of incarcer-
ation were the result of a variety of converging historical, social, economic, and political forces,” id.
at 128).
207 See, e.g., GILMORE, GOLDEN GULAG, supra note 17; Berger, How Prisons Serve Capitalism,
supra note 60; Prisons and Class Warfare, supra note 60.
208 See McLeod, Envisioning Abolition Democracy, supra note 30, at 1638–41.
209 See Monu Bedi, Toward a Uniform Code of Police Justice, 2016 U. CHI. LEGAL F. 13, 24–26
(observing that, although “[b]y and large, police officers and [civilians] are subject to the same crim-
inal laws,” id. at 24, states have modified those laws to accommodate police officers’ duties using
“very general language,” which “leaves prosecutors with significant discretion,” id. at 26); Mitchell
F. Crusto, Right to Life: Interest-Convergence Policing, 71 RUTGERS U. L. REV. 63, 73 (2018) (“Cur-
rently, the legal standard for prosecuting police officers’ use of lethal force gives great latitude to
police officers to do their jobs, providing them with broad immunity.”); McLeod, Envisioning Abo-
lition Democracy, supra note 30, at 1639–41 (arguing that the “close ties” between police and pros-
ecutors, id. at 1639, and the “many forms of excessive force deployed by police” that “the law itself
countenances,” id. at 1640, among other factors, lead to inadequate prosecution of police who act
criminally). The doctrine of qualified immunity, meanwhile, protects officers from civil liability.
See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1152–54 (2018) (declining, on qualified immunity
grounds, even to assess whether a police officer acted reasonably in shooting a woman who had
behaved erratically and was holding a knife and instead concluding that the use of force did not
violate any clearly established right).
prosecutors,210 and corporate executives211 generally avoid criminal lia-

bility even for inflicting serious harm. As I have explored previously,
“[c]urrent legal doctrine condones police violence and makes individual
acts of abuse — even homicides — appear isolated, aberrational, and
acceptable rather than part of a systematic pattern of official vio-
lence.”212 Prosecutors who have used unconstitutional methods for ob-
taining wrongful convictions have not been criminally prosecuted them-
selves.213 Few corporate executives have been charged with crimes for
actions that caused billions of dollars in losses during the financial crisis
of 2008.214 Moreover, government officials responsible for devastating
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
210 See Margaret Z. Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 B.Y.U. L. REV.
53, 71 (“[R]esearch discloses only one conviction of a prosecutor [ever under the relevant federal
civil rights statute].”); Bidish Sarma, Using Deterrence Theory to Promote Prosecutorial Accounta-
bility, 21 LEWIS & CLARK L. REV. 573, 585 (2017) (“Criminal liability has not proven to be a
meaningful mode of prosecutorial accountability in fact.”); see also Frederic Block, Let’s Put an End
to Prosecutorial Immunity, MARSHALL PROJECT (Mar. 13, 2018, 10:00 PM), https://www.
themarshallproject.org/2018/03/13/let-s-put-an-end-to-prosecutorial-immunity [https://perma.cc/
JA3F-X3RW] (“Because of the present status of the law, the prosecutors responsible for [employing
improper methods, such as withholding evidence or using false testimony, to obtain] the wrongful
convictions [of over twenty individuals] have neither been held criminally nor civilly responsible
for their shameful conduct.”). The Supreme Court has also held that a prosecutor, when acting
within his duties pursuing criminal prosecution, is immune from suit under § 1983. See Imbler v.
Pachtman, 424 U.S. 409, 410, 427 (1976).
211 See Peter J. Henning, Why It Is Getting Harder to Prosecute Executives for Corporate Mis-
conduct, 41 VT. L. REV. 503, 506–07, 509 (2017) (observing that “prosecuting cases against corporate
employees and executives, which has never been easy, is getting harder,” id. at 507, due to, among
other factors, complex corporate structures, “heightened intent requirements in many white-collar
offenses,” id. at 506–07, and courts’ receptiveness “to arguments that statutes are being applied too
aggressively by prosecutors,” id. at 509); see also William D. Cohan, How Wall Street’s Bankers
Stayed Out of Jail, THE ATLANTIC (Sept. 2015), https://www.theatlantic.com/magazine/
archive/2015/09/how-wall-streets-bankers-stayed-out-of-jail/399368 [https://perma.cc/ANL6-KR5C]
(reporting that only one Wall Street executive was incarcerated for his role in the 2008 financial
crisis).
212 Roberts, Constructing, supra note 98, at 278; accord Bandes, supra note 132, at 1288–92 (using
an instance of police brutality to argue that such behavior is readily concealed because of a “nation-
wide code of silence” among officers, id. at 1291, and because of the targeting of marginalized
groups within marginalized neighborhoods, which serves to make “brutality . . . seem unbelievable
or aberrant to decisionmakers” coming from better-off neighborhoods that do not suffer the same
abuses, id. at 1292); Paul Butler, Stop and Frisk and Torture-Lite: Police Terror of Minority Com-
munities, 12 OHIO ST. J. CRIM. L. 57, 68 (2014) (“[T]he use of stop and frisk as a mechanism of
racial subordination is not an isolated example of overreach by rogue police officers, or even a rogue
police force, but is instead a mechanism deeply connected to the history of racial subordination.”);
Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment
Pathways to Police Violence, 105 CALIF. L. REV. 125, 128–30, 163–64 (2017) [hereinafter Carbado,
From Stopping Black People]; see also supra note 209 and accompanying text.
213 See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSE-
CUTOR 4–5 (2007).
214 William D. Cohan, A Clue to the Scarcity of Financial Crisis Prosecutions, N.Y. TIMES (July
21, 2016), https://nyti.ms/2adauJG [https://perma.cc/57ZX-6SFU] (describing the “few attempts” to
prosecute Wall Street executives for activities related to the crisis); Cohan, supra note 211; Chris
Isidore, 35 Bankers Were Sent to Prison for Financial Crisis Crimes, CNN (Apr. 28, 2016, 6:53
AM), https://money.cnn.com/2016/04/28/news/companies/bankers-prison/index.html [https://perma.
environmental harms, such as lead-poisoned water in Flint, Michigan,

typically escape criminal prosecution.215 In sum, criminal law treats
prisons as essential to prevent or redress crimes committed by econom-
ically and racially marginalized people but unnecessary to address even
greater social harms inflicted by the wealthy and powerful.
The criminal punishment system extends its subordinating impact
beyond prison walls by imposing collateral penalties that deny critical
rights and resources to formerly incarcerated people.216 Felon disen-
franchisement laws, for example, restrict incarcerated people’s ability to
vote during their sentences and after they are released,217 and
significantly dilute black political power.218 The stigma of conviction,
imposition of fines and fees, and exclusion from public benefits inflict a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
cc/YNY9-JQ89] (indicating that a total of thirty-five bankers, mostly from smaller institutions, ul-
timately went to prison due to their roles in the financial crisis).
215 Ed White, Years After Flint Water Crisis Began, No One Is Behind Bars, PBS NEWS HOUR
(Jan. 18, 2019, 1:57 PM), https://www.pbs.org/newshour/health/years-after-flint-water-crisis-began-
no-one-is-behind-bars [https://perma.cc/4ZQZ-27EL] (reporting that “no one is behind bars” as a
result of the Flint, Michigan, water crisis, with seven of the fifteen people charged with crimes
already having reached plea deals resulting in misdemeanor convictions); see also Joe Rubin, Opin-
ion, Hundreds of Workers Have Lead Poisoning. Why Hasn’t Cal/OSHA Stepped In?, L.A. TIMES
(Oct. 14, 2018, 4:05 AM), https://www.latimes.com/opinion/op-ed/la-oe-rubin-lead-cal-osha-
20181014-story.html [https://perma.cc/P9QD-AVCD]; Michael Rubinkam, Pittsburgh Water Au-
thority Charged Criminally over Lead, AP (Feb. 1, 2019), https://www.apnews.
com/93a55929989f4f69b98cf78a007e5b6d [https://perma.cc/8XM4-KNCV] (“No individual em-
ployee of the Pittsburgh water authority was charged because state investigators didn’t find evi-
dence that anyone intended to hurt customers.”); Joe Rubin, Battery Blood: How California Health
Agencies Failed Exide Workers, CAPITAL & MAIN (Mar. 21, 2018), https://capitalandmain.com/
battery-blood-how-california-health-agencies-failed-exide-workers-0321 [https://perma.cc/88CJ-K79S].
216 See Alec Ewald & Christopher Uggen, The Collateral Effects of Imprisonment on Prisoners,
Their Families, and Communities, in THE OXFORD HANDBOOK OF SENTENCING AND COR-
RECTIONS 83, 86–89 (Joan Petersilia & Kevin R. Reitz eds., 2012) (exploring various federal and
state restrictions on and consequences for offenders, including deportation; limitations on driver’s
licenses; restrictions on ability to foster or adopt children; and loss of the right to vote, serve on
juries, purchase firearms, serve in the military, work in certain professions or community service
roles, or receive certain public health or financial benefits); Taja-Nia Y. Henderson, The Ironic
Promise of the Thirteenth Amendment for Offender Anti-Discrimination Law, 17 LEWIS & CLARK
L. REV. 1141, 1154–65 (2013) (discussing the exclusion of offenders from housing and employment
markets); see also National Inventory of Collateral Consequences of Conviction, COUNCIL OF S T.
GOV ’ TS JUST. C TR ., https://niccc.csgjusticecenter.org [https://perma.cc/754F-SQQY] (containing a
searchable database of policies relating to collateral consequences of a criminal conviction across
the states).
217 Almost all states bar currently incarcerated people from voting, and many extend voting
bans beyond a person’s release. See Felon Voting Rights, NAT’L CONF. ST. LEGISLATURES
(Dec. 21, 2018), http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx
[https://perma.cc/SE8Z-XQLE].
218 See MANZA & UGGEN, supra note 166, at 79–80, 188–203 (using empirical analysis to show
that “felon disenfranchisement affects a far greater proportion of the [black] electorate than of any
other group,” id. at 79, and that disenfranchisement as a whole likely affects election outcomes, to
the point that “felon disenfranchisement poses a threat to political equality,” id. at 203).
nearly insurmountable burden on people caught in the carceral web.219

The association between slavery and prison makes these deprivations
seem natural — despite the injustice of punishing people beyond the
sentence they served and in a way that bears no relation to the crimes
they committed. Just as it seemed unremarkable that enslaved people
could not vote because they were not citizens, so today many people
think: “Of course prisoners aren’t supposed to vote. They aren’t really
citizens any more.”220 Thus, the inherent denial of citizenship rights to
enslaved people is mirrored in the unquestioned denial of those rights to
incarcerated people.
(c) Death Penalty. — Capital punishment, like police and prisons,
has its roots in slavery and the preservation of white supremacy.221 State
executions have persisted in the United States because they function
similarly to the extreme punishments inflicted on enslaved people and
the state-sanctioned lynchings that replaced these punishments after
Emancipation.222 As Davis points out, “the institution of slavery served
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
219 See Timbs v. Indiana, 139 S. Ct. 682, 689 (2019) (“Exorbitant tolls undermine other constitu-
tional liberties.”); Brief for Petitioners, supra note 180, at 26–27 (arguing that “[t]he power to fine
people and confiscate their property is the power to limit their freedom,” id. at 26, and that “[e]ven
low-level offenders” can be subjected to debt monitoring and debilitating long-term monetary sanc-
tions, id. at 27); ALEXES HARRIS, A POUND OF FLESH: MONETARY SANCTIONS AS PUNISHMENT
FOR THE POOR 151–62 (2016) (describing the severe consequences of monetary sanctions on persons
convicted of crimes).
220 DAVIS, ABOLITION DEMOCRACY, supra note 17, at 38; see also McLeod, Grounded Justice,
supra note 91, at 1213 (noting that the Supreme Court has made “conviction . . . the point at which
moral (or at least constitutional) concern [for offenders] ends” and proposing an abolitionist ethic
that rejects this narrative).
221 See Stephen B. Bright, The Role of Race, Poverty, Intellectual Disability, and Mental Illness
in the Decline of the Death Penalty, 49 U. RICH. L. REV. 671, 675–76 (2015) (arguing that capital
punishment persisted in the South, even as many northern states abolished it in the mid-1800s,
because southern whites viewed “[t]he death penalty . . . as essential to maintaining control over the
slaves,” id. at 676); Ta-Nehisi Coates, The Inhumanity of the Death Penalty, THE ATLANTIC
(May 12, 2014), https://www.theatlantic.com/politics/archive/2014/05/the-inhumanity-of-the-death-
penalty/361991 [https://perma.cc/9Z4G-KPDR] (“In America, the history of the criminal justice [sys-
tem] — and the death penalty — is utterly inseparable from white supremacy.”); see also DAVIS,
ABOLITION DEMOCRACY, supra note 17, at 35–37 (discussing the relationship between the death
penalty and slavery and concluding that “[o]ne of the major priorities of the reparations movement
should be the abolition of the death penalty,” id. at 35).
222 See Roberts, Constructing, supra note 98, at 272–75; see also SHERRILYN A. IFILL, ON THE
COURTHOUSE LAWN: CONFRONTING THE LEGACY OF LYNCHING IN THE TWENTY-
FIRST CENTURY 75–77 (2007) (discussing the legal system’s complicity in lynchings); Stuart
Banner, Traces of Slavery: Race and the Death Penalty in Historical Perspective, in FROM LYNCH
MOBS TO THE KILLING STATE, supra note 121, at 96, 98–101 (“With the end of slavery, whites
turned toward alternative forms of racial subjugation, and one of them was the death penalty.” Id.
at 100–01.); Bright, supra note 221, at 677 (“[T]here was often little difference between lynchings
carried out by the mob and ‘legal lynchings’ that took place in courtrooms.”); Kaufman-Osborn,
supra note 121, at 36–39. In July 2019, the Justice Department announced that the federal govern-
ment would resume executions of people sentenced to death. Sadie Gurman & Jess Bravin, Federal
Government Set to Resume Executions, WALL ST. J. (July 25, 2019, 6:41 PM),
as a receptacle for those forms of punishment considered to be too un-

civilized to be inflicted on white citizens within a democratic society.”223
Historically, race-based criminal codes imposed the death penalty on
enslaved individuals for many more offenses than they did for whites.224
Blacks were “commonly hanged” for “rape, slave revolt, attempted mur-
der, burglary, and arson.”225 Moreover, condemned slaves were sub-
jected to extra cruelty through what Professor Stuart Banner calls
“super-capital punishment” — burning them alive at the stake.226 Exe-
cutions were also made especially degrading by displaying slaves’ sev-
ered heads on poles in front of the courthouse, or allowing their corpses
to decompose in public view.227
After Emancipation, white southerners began ritualistically kidnap-
ping and killing black people to publicly reinforce white supremacy.228
In 1893, Ida B. Wells observed that “the Convict Lease System and
Lynch Law are twin infamies which flourish hand in hand in many of
the United States.”229 Public torture proclaimed white dominion over
black people, repudiated blacks’ citizenship status,230 and “literally re-
instat[ed] black bodies as the property of whites that could be chopped
to pieces for their entertainment.”231 Many lynchings were of black men
accused of breaching racialized sexual boundaries by raping or disre-
specting white women.232 However, the majority of terroristic murders
between 1890 and 1920 were intended to facilitate white theft of black
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
https://www.wsj.com/articles/federal-government-set-to-resume-executions-11564066216 [https://
perma.cc/U26T-PES5].
224 Banner, supra note 222, at 99–100.
225 Id. at 99.
226 STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 71 (2002).
227 Id. at 71–75. These practices continue in various forms today: the city of Ferguson left the
body of Michael Brown on the street in public view for hours after he was killed by a white police
officer. Julie Bosman & Joseph Goldstein, Timeline for a Body: 4 Hours in the Middle of a Ferguson
Street, N.Y. TIMES (Aug. 23, 2014), https://nyti.ms/1qAFMqN [https://perma.cc/7JAU-YUKM].
228 Roberts, Constructing, supra note 98, at 273; see Banner, supra note 222, at 101–07.
229 Wells, supra note 176, at 23.
230 Roberts, Torture, supra note 86, at 232–33 (“The tortured black body displayed for public
consumption affirmed the dominance of whites and exclusion of blacks from citizenship, and it
served as a warning to anyone who defied this racial order.”); see also DAVIS, ABOLITION DEMOC-
RACY, supra note 17, at 53 (“[L]ynching precisely defined its victims as beyond the possibility of
citizenship.”).
231 Roberts, Torture, supra note 86, at 232; see Garland, supra note 86, at 822–23 (“[Public lynch-
ings] made it plain, to blacks and to whites, that despite Emancipation and Reconstruction, despite
the 13th and 14th Amendments, black bodies remained the property of white people and could still
be exploited for profit and for pleasure.”); see also Kaufman-Osborn, supra note 121, at 29–30 (“To
blacks, and especially black men, the lynched body communicated their vulnerability, their debase-
ment, their exclusion from the community to which, by federal law, they now uneasily belonged.”
Id. at 30.); Skolnick, supra note 86, at 106.
232 See, e.g., Garland, supra note 86, at 799, 825.
people’s property.233 As Frederick Douglass observed in 1893, display-

ing insolence was sufficient excuse for lethal victimization:
The crime of insolence for which the Negro was formerly killed and for
which his killing was justified, is as easily pleaded in excuse now, as it was
in the old time and what is worse, it is sufficient to make the charge of
insolence to provoke the knife or bullet. This done, it is only necessary to
say in the newspapers, that this dead Negro was impudent and about to
raise an insurrection and kill all the white people, or that a white woman
was insulted by a Negro, to lull the conscience of the north into indifference
and reconcile its people to such murder. No proof of guilt is required. It is
enough to accuse, to condemn and punish the accused with death.234
Here, Douglass links his childhood observations of overseers’ pun-
ishment of enslaved blacks to the lynchings of emancipated blacks oc-
curring after the Civil War. The same logic of slavery that called for
punishment of black insubordination to enforce white supremacy, re-
gardless of culpability for a crime, was revived in lynching and persists
in the modern prison industrial complex.
The hundreds of “public torture lynchings” that were a feature of
southern society until almost 1940235 call into question the dominant
narrative that as civilizations have evolved, punishments have become
more humane.236 Instead, southern whites sent a message through me-
dieval forms of punishment:
[A]rchaic forms of execution involving torture, burning, and mutilation . . .
show[ed] that “regular justice” was “too dignified” for black offenders. The
public torture of blacks accused of offending the racial order demonstrated
whites’ unlimited power and blacks’ utter worthlessness. This nation’s
rights, liberties, and justice were meant for white people only; blacks meant
nothing before the law.237
Lynchings were the terrorist counterpart to state-supported debt peon-
age, convict leasing, disenfranchisement, and segregation laws that kept
blacks subject to white domination.238 Lynching black people was not
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
233 Lizzie Presser, Kicked off the Land: Why So Many Black Families Are Losing Their Property,
NEW YORKER (July 15, 2019), https://www.newyorker.com/magazine/2019/07/22/kicked-off-the-
land [https://perma.cc/2Y97-VHBD] (“Most black men were lynched between 1890 and 1920 be-
cause whites wanted their land.” (quoting Ray Winbush, Director of the Institute for Urban
Research at Morgan State University)).
234 Frederick Douglass, Introduction to THE REASON WHY THE COLORED AMERICAN IS
NOT IN THE WORLD’S COLUMBIAN EXPOSITION, supra note 176, at 7, 11.
235 Garland, supra note 86, at 793–94.
236 Roberts, Constructing, supra note 98, at 273; see Garland, supra note 86, at 796 (“[A] consid-
eration of [public torture lynchings’] form and character would strongly contradict the received
wisdom about the course of penal change and the civilizing process that accompanied it.”).
237 Roberts, Torture, supra note 86, at 233 (footnote omitted) (quoting Garland, supra note 86, at 814).
238 Garland, supra note 86, at 811.
an exception to the law; it was part of the administration of justice and

the larger system of legally sanctioned racial control.239
In the mid-twentieth century, the practice of lynching black people
was replaced by the practice of subjecting them to the death penalty.240
These legally sanctioned hangings, which deliberately resembled lynch-
ings of the past,241 purported to punish black men for raping white
women.242 New methods of execution were also implemented: in the
1950s in Mississippi, crowds of white onlookers gathered at southern
courthouses to witness the electrocutions of black men in portable elec-
tric chairs that traveled from town to town.243 After one such killing in
Mississippi in 1951, the crowd on the lawn outside the courthouse “burst
into cheers, then crushed forward in an effort to glimpse the corpse as
it was removed from the building.”244 There was a smooth transition
from lynching to state execution because “[a] culture that carried out so
much public unofficial capital punishment could hardly grow squeamish
about the official variety.”245
Capital punishment continues to function as it did in the slavery and
Jim Crow eras to reinforce the subordinated status of black people.246
Today, states primarily use lethal injection in an attempt to make capital
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
240 See Bright, supra note 221, at 677–78; Jeffrey Toobin, The Legacy of Lynching, On Death
Row, NEW YORKER (Aug. 15, 2016), https://www.newyorker.com/magazine/2016/08/22/bryan-
stevenson-and-the-legacy-of-lynching [https://perma.cc/78TT-9ABE]; Death Penalty, SOUTHERN
CTR. FOR HUM. RTS., https://www.schr.org/our-work/death-penalty [https://perma.cc/L7W7-
SR85] (“The death penalty is a direct descendant of lynching and other forms of racial violence and
racial oppression in the American South.”); Lena Glickman, State Sanctioned Murder: The Death
Penalty and the Struggle for Racial Justice, NAT’L COALITION TO ABOLISH DEATH PENALTY
(Jan. 28, 2015), http://www.ncadp.org/blog/entry/state-sanctioned-murder-the-death-penalty-and-
the-struggle-for-racial-justi [https://perma.cc/R4ZU-JDBS] (“The modern death penalty is rooted in
slavery and lynching.”).
241 See IFILL, supra note 222, at 30; Bright, supra note 221, at 677–78.
242 See Banner, supra note 222, at 106.
243 See PHILIP DRAY, AT THE HANDS OF PERSONS UNKNOWN: THE LYNCHING OF BLACK
AMERICA 403 (2002).
244 Id.; see also Banner, supra note 222, at 101–07 (describing public “[e]xecution [c]eremonies,”
id. at 101); Liliana Segura, The Stepchild of Lynching, THE INTERCEPT (June 17, 2018, 9:00 AM),
https://theintercept.com/2018/06/17/lynching-museum-alabama-death-penalty [https://perma.cc/
UAJ7-ESSH] (“In 1905, the first legal execution for ‘criminal assault’ in North Carolina’s Sampson
County was attended by 25 people, who had bought tickets for the occasion.”).
245 Banner, supra note 222, at 107.
246 See Bryan Stevenson, Close to Death: Reflections on Race and Capital Punishment in
America, in DEBATING THE DEATH PENALTY: SHOULD AMERICA HAVE CAPITAL PUNISH-
MENT? THE EXPERTS ON BOTH SIDES MAKE THEIR BEST CASE 76, 76–93 (Hugo Adam
Bedau & Paul G. Cassell eds., 2004) (discussing past and present discrimination in capital punish-
ment’s administration and concluding that “[t]he tolerance of racial bias in the modern death pen-
alty era . . . represents a serious threat to anti-discrimination reforms and equal justice in America,”
id. at 92).
punishment “more palatable,”247 on the logic that this method bears less
resemblance to lynching than electrocution or hanging.248 The fact that
lethal injection carries its own risks of inflicting pain249 has not under-
mined its constitutional status: last Term, in Bucklew v.
Precythe,250 a divided Court was unmoved by evidence that Missouri’s
lethal injection protocol would inflict cruel and unusual punishment on
a prisoner, reasoning that “the Eighth Amendment does not guaran-
tee . . . a painless death.”251 Although Bucklew was white, the Court’s
decision upheld lethal state violence that is disproportionately imposed
on black men accused of killing white people.252 Like the torture rituals
of lynching, the death penalty survives in modern America as an unciv-
ilized form of punishment because it continues to represent white dom-
ination over black people.
2. Not a Malfunction. — A first step to demonstrating the political
illegitimacy of today’s carceral punishment system is finding its origins
in the institution of slavery. A second step is understanding that prisons,
police, and the death penalty function to subordinate black people and
maintain a racial capitalist regime. Efforts to fix the criminal punish-
ment system to make it fairer or more inclusive are inadequate or even
harmful because the system’s repressive outcomes don’t result from any
systemic malfunction.253 Rather, the prison industrial complex works
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
247 See Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 IOWA L. REV.
319, 388–89 (1997) (explaining that some states have historically changed their execution methods
to make execution “more palatable to the public,” id. at 389); Deborah W. Denno, The Lethal In-
jection Quandary: How Medicine Has Dismantled the Death Penalty, 76 FORDHAM L. REV. 49,
62–63 (2007) (explaining that lethal injection became “popular[]” in part because “hanging[] risked
being too long and cruel,” id. at 63).
248 See Kaufman-Osborn, supra note 121, at 41–42.
249 See, e.g., CAROL S. STEIKER & JORDAN M. STEIKER, COURTING DEATH: THE SUPREME
COURT AND CAPITAL PUNISHMENT 15–16 (2016).
250 139 S. Ct. 1112 (2019).
251 Id. at 1124.
252 See David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of
the Georgia Experience, 74 J. CRIM. L. & CRIMINOLOGY 661, 708–10 (1983) (finding that a black
defendant in Georgia was twenty-one times more likely to be sentenced to death if the victim was
white than if the victim was black); Stevenson, Slavery, supra note 173 (“Black defendants are 22
times more likely to receive the death penalty for crimes whose victims are white, rather than
black.”).
253 See BUTLER, supra note 59, at 5 (describing the criminal punishment system as “broke on
purpose”); VITALE, supra note 103, at 4–30 (criticizing a number of police reforms to address injus-
tice as ineffectual because “that is how the system is designed to operate,” id. at 15); Kaba, Foreword
to RITCHIE, supra note 103, at xv (arguing against reforming policing because a “system created to
contain and control me as a Black woman cannot be reformed”); Rodríguez, supra note 29, at 1593
(criticizing the renarration of “carceral domestic war” in order to support reform rather than aboli-
tion: “But if this domestic war is reframed as a discrete, mistaken excess owing to criminological
error, electoral opportunism, and moral failure — ‘mass incarceration’ — it can be redressed and
reformed within the existing systems of law, policy, and liberal justice.”); Mariame Kaba, Prison
Reform’s in Vogue and Other Strange Things . . . , TRUTHOUT (Mar. 21, 2014), https://
truthout.org/articles/prison-reforms-in-vogue-and-other-strange-things [https://perma.cc/3QA6-
effectively to contain and control black communities as a result of its

structural design. Therefore, reforms that correct problems perceived
as aberrational flaws in the system only help to legitimize and strengthen
its operation. Indeed, reforming prisons results in more prisons.254
3. A Society Without Prisons. — An essential component of prison
abolitionist theory is the principle that eliminating current carceral prac-
tices must occur alongside creating a radically different society that has
no need for them.255 Prison abolitionists frequently define their work as
consisting of two simultaneous activities, one destructive and the other
creative. “It’s the complete and utter dismantling of prisons, policing,
and surveillance as they currently exist within our culture,” Kaba ex-
plains.256 “And it’s also the building up of new ways of . . . relating with
each other.”257 This duality is essential to abolition both because prisons
will only cease to exist when social, economic, and political conditions
eliminate the need for them and because installing radical democracy is
crucial to preventing another white backlash and reincarnation of
slavery-like institutions in response to the abolition of current ones.258
Moreover, the success of nonpunitive approaches developed by abo-
litionists for addressing human needs and social problems can be a com-
pelling reason to abandon current dehumanizing and ineffective
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
XCLZ] (“With every successive call for ‘reform,’ the prison has remained stubbornly brutal, violent,
and inhumane.”).
254 Rodríguez, supra note 29, at 1601 (“[T]he reform of the prison resulted in its expansion and
bureaucratic multiplication.” (emphasis omitted)).
255 See CARRUTHERS, supra note 26, at x (defining abolition as “a long-term political vision with
the goal of eliminating imprisonment, policing, and surveillance and creating lasting alternatives to
punishment and imprisonment”); McLeod, Envisioning Abolition Democracy, supra note 30, at
1615 (“Justice in abolitionist terms involves at once exposing the violence, hypocrisy, and dissem-
bling entrenched in existing legal practices, while attempting to achieve peace, make amends, and
distribute resources more equitably.”); McLeod, Grounded Justice, supra note 91, at 1232 (describing
a “broader conception of grounded justice [that] requires allocation of energy and resources to social
structural responses over criminal prosecution and punishment”); Lisa Guenther, These Are the
Moments in Which Another World Becomes Possible: Lisa Guenther on Abolition,
ABOLITION (July 10, 2015), https://abolitionjournal.org/lisa-guenther-abolition-statement [https://
perma.cc/LN8D-LK3Q] (describing abolition as “a negative process of dismantling oppressive
structures and a positive process of . . . mak[ing] oppressive structures obsolete”).
256 Episode 29 — Mariame Kaba, AIRGO (Feb. 2, 2016), https://airgoradio.com/airgo/
2016/2/2/episode-29-mariame-kaba [https://perma.cc/ETG2-M43L].
257 Id.
258 CAROL ANDERSON, WHITE RAGE: THE UNSPOKEN TRUTH OF OUR RACIAL DIVIDE
(2016); DAVIS, ABOLITION DEMOCRACY, supra note 17, at 73 (“When I refer to prison abolition-
ism, I like to draw from the DuBoisian notion of abolition democracy. That is to say, it is not only,
or not even primarily, about abolition as a negative process of tearing down, but it is also about
building up, about creating new institutions.”); id. (noting historical observations that “the negative
process [of abolition] by itself was insufficient”); Fred Moten & Stefano Harney, The University and
the Undercommons: Seven Theses, 22 SOC. TEXT 101, 114 (2004) (describing the object of abolition
as the “abolition of a society that could have prisons, that could have slavery, that could have the
wage, and therefore not abolition as the elimination of anything but abolition as the founding of a
new society”).
practices.259 Above all, it is their vision of a world without prisons that

gives abolitionists their lodestar. Abolitionists are working toward a
society where prisons are inconceivable — a world where its inhabitants
“would laugh off the outrageous idea of putting people into cages, think-
ing such actions as morally perverse and fatally counterproductive.”260
Because the current carceral system is rooted in the logic of slavery,
abolitionists must look to a radically different logic of human relations
to guide their activism.261 That guiding philosophy cannot be invented
theoretically, but must emerge from the practice of collectively building
communities that have no need for prisons.
Citing Du Bois’s critique of the post-Emancipation period in Black
Reconstruction, Davis attributes the rise of prisons to the failure to in-
stitute a revolutionary “abolition democracy” that incorporated freed
African Americans into the social order.262 Slavery could not be truly
and comprehensively abolished without economic redistribution, equal
educational access, and voting rights. In Davis’s words, “DuBois . . .
argues that a host of democratic institutions are needed to fully achieve
abolition — thus abolition democracy.”263 Understanding that prisons
are not primarily designed to protect people from crime, but rather to
address human needs and social problems with punitive measures,
opens the possibility that we can eradicate prisons by addressing these
needs and problems in radically different ways.264
Abolitionists, therefore, are both developing nonpunitive measures
to deal with harm and creating new conditions to prevent harm from
occurring in the first place, recognizing both as better approaches to
ensuring safety and security than relying on police and prisons.
Abolitionists address the root causes of harm by investing in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
259 See McLeod, Envisioning Abolition Democracy, supra note 30, at 1628–33; id. at 1637 (“Con-
ventional accounts of legal justice typically neglect the overwhelming discontinuity between the
ideals of justice proclaimed and their deeply inadequate, often violent, racialized, and ultimately
destructive realization.”); see also Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure
of American Lawyers, 128 HARV. L. REV. F. 253, 260–61 (2015) (noting that there is no evidence
that policing and mass incarceration work to reduce harms, and asking: “What kind of legal culture
allows the massive deprivation of basic liberty without any evidence?,” id. at 261).
260 Alexander Lee, Prickly Coalitions: Moving Prison Abolitionism Forward, in ABOLITION
NOW!, supra note 17, at 109, 111.
261 See Profiles in Abolition, supra note 19, at 14:55 (observing, in the words of Professor Ruth
Wilson Gilmore, that the prison industrial complex “[cannot] be reformed within its own logic, but
rather it would have to come apart”); see also GILMORE, GOLDEN GULAG, supra note 17, at 241–
48; Kushner, supra note 25.
262 DAVIS, ABOLITION DEMOCRACY, supra note 17, at 95–97.
263 Id. at 96.
264 See id. (noting that under an abolition democracy approach “we would propose the creation
of an array of social institutions that would begin to solve the social problems that set people on the
track to prison, thereby helping to render the prison obsolete”); see also DAVIS, ARE PRISONS OB-
SOLETE?, supra note 17.
people’s basic needs and addressing the causes of interpersonal vio-

lence.265 For example, anticarceral feminists have begun to think
through what prison abolition entails with respect to ending domestic
violence.266 The multiple ways in which black women are subjected to
punitive state control has sparked the need for a remedy to domestic
violence that does not depend on police and prisons. Black anticarceral
feminists analyze and address domestic violence in light of correspond-
ing inequitable social structures; they understand intimate violence as
inextricably connected to state violence.267 This logic recognizes not
only that the United States incarcerates black people as a response to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
265 See Smith, supra note 146 (laying out an argument in favor of using “full social, economic,
and political equality” to create a stable and safe society); Benji Hart, You Are Already an Aboli-
tionist, RADFAG (Mar. 24, 2017), https://radfag.com/2017/03/24/you-are-already-an-abolitionist
[https://perma.cc/RWT2-GEL2] (recognizing that it was “access to the basic things people needed,
not the presence of police, that made [Chicago neighborhood] residents feel secure”).
266 See, e.g., LEIGH GOODMARK, DECRIMINALIZING DOMESTIC VIOLENCE (2018); B ETH
E. RICHIE, ARRESTED JUSTICE: BLACK WOMEN, VIOLENCE, AND AMERICA’S PRISON NA-
TION 160 (2012); BETH E. RICHIE, COMPELLED TO CRIME: THE GENDER ENTRAPMENT OF
BATTERED BLACK WOMEN 14 (1996) [hereinafter RICHIE, COMPELLED TO CRIME] (discussing
social science’s failure to consider the circumstances of battered women in jail); RITCHIE, supra
note 103, at 241; EMILY L. THUMA, ALL OUR TRIALS: PRISONS, POLICING, AND THE FEMI-
NIST FIGHT TO END VIOLENCE 160–61 (2019) (describing a 2015 conference organized around
the need to center the movement to abolish gender violence within communities, rather than relying
on police or prisons); Donna Coker, Shifting Power for Battered Women: Law, Material Resources,
and Poor Women of Color, 33 U.C. DAVIS L. REV. 1009, 1049–52 (2000) (analyzing the positive and
negative effects that an arrest-oriented approach to domestic violence has on victims’ access to
resources, and concluding that those effects may be ultimately negative); Critical Resistance &
INCITE! Women of Color Against Violence, Gender Violence and the Prison-Industrial Complex,
in COLOR OF VIOLENCE: THE INCITE! ANTHOLOGY 223, 223–26 (INCITE! Women of Color
Against Violence ed., 2006) (assessing the impact of reliance on the criminal legal system to address
domestic violence and calling on social justice movements to move away from this model); Angela
P. Harris, Heteropatriarchy Kills: Challenging Gender Violence in a Prison Nation, 37 WASH. U.
J.L. & POL’Y 13, 38–40 (2011) (advocating for transformative justice as a more suitable response to
domestic violence than incarceration); Emily Thuma, Lessons in Self-Defense: Gender Violence,
Racial Criminalization, and Anticarceral Feminism, 43 WOMEN’S STUD. Q. 52 (2015) (outlining
the history of radical antiviolence and anticarceral organizing in response to domestic violence dur-
ing the 1970s).
267 See generally Criminalizing Survival Curricula, SURVIVED & PUNISHED, https://
survivedandpunished.org/criminalizing-survival-curricula [https://perma.cc/Z3XU-UQWH] (con-
taining curriculum units and activities addressing “the intersections between racialized gender-
based violence and criminalization”); see also Kellie C. Murphy, Beyond Cyntoia Brown: How
Women End up Incarcerated for Self Defense, ROLLING STONE (Jan. 28, 2019, 5:55 PM),
https://www.rollingstone.com/culture/culture-features/cyntoia-brown-beyond-other-cases-775874
[https://perma.cc/Q4MD-PYPU] (telling the stories of women who were incarcerated for resisting
gendered violence); Mariame Kaba, There Are Thousands of Cyntoia Browns: Mariame Kaba on
Criminalization of Sexual Violence Survivors, DEMOCRACY NOW! (Jan. 10, 2019), https://www.
democracynow.org/2019/1/10/there_are_thousands_of_cyntoia_browns [https://perma.cc/PJ4P-
VF6P] (recounting the history of sex-trafficking survivor Cyntoia Brown’s conviction, imprison-
ment, and clemency, and describing the number of similarly situated, but invisible, women in the
United States).
social problems, but also that law enforcement has arrested, injured, or
killed black victims of domestic violence who seek help from the state.268
Rejecting the carceral paradigm, black feminist abolitionists have
proposed community-based transformative justice responses269 that ad-
dress the social causes of violence and hold people accountable without
exposing them to police violence and state incarceration.270 Mariame
Kaba, for example, works on “creating new structures that will take the
place of the current institutions that [abolitionists] want to completely
abolish and eradicate” in part by building new solutions to private vio-
lence that “will allow people to feel safe . . . on the road towards the
end,” which, for Kaba, “is an abolitionist end.”271 The black feminist
strategy for addressing domestic violence and youth violence suggests
that prison abolition can be achieved without sacrificing security from
violence.
Many abolition theorists, including Davis and Professor Ruth
Wilson Gilmore, argue that creating a society without carceral ap-
proaches to addressing human needs requires radically overhauling the
U.S. capitalist economy and replacing it with a socialist or communist
system.272 Enslaved African labor not only fueled the U.S. capitalist
economy, but racial slavery also created an especially brutal form of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
268 See RITCHIE, supra note 103, at 19–42, 183–85, 187 (examining the ways black women, in-
digenous women, and other women of color are uniquely affected by racial profiling, police brutal-
ity, and immigration enforcement); see also RICHIE, COMPELLED TO CRIME, supra note 266, at 4
(exploring the ways that black women who are survivors of gendered violence are marginalized,
criminalized, and penalized for behaviors that violate societal gender roles).
269 See The Activist Files: Transformative Justice in an Era of Mass Criminalization, Mariame
Kaba and Victoria Law, CTR. FOR CONST. RTS. (Mar. 14, 2019), https://soundcloud.com/activist-
files-center-for-constitutional-rights/episode-12-transformative-justice-in-an-era-of-mass-criminali-
zation-mariame-kaba-and-victoria-law [https://perma.cc/TAS7-WYBH] (transcript available at
https://ccrjustice.org/sites/default/files/Episode-12-Transformative-justice-in-an-era-of-mass-crimi-
nalization-Mariame-Kaba-and-Victoria-Law.pdf [https://perma.cc/SHA4-FHRD]).
270 See, e.g., About Project NIA, NIA DISPATCHES, https://niastories.wordpress.com/about
[https://perma.cc/TRU3-H7UX] (explaining Project NIA’s mission to address youth crime with “re-
storative and transformative practices” relying on “community-based alternatives”). I have criti-
cized nonabolitionist models of restorative justice that rely on the criminal punishment system and
ignore the ways in which offenders are often themselves survivors of state violence. See Dorothy
E. Roberts, Black Mothers, Prison, and Foster Care: Rethinking Restorative Justice, in RESTOR-
ATIVE AND RESPONSIVE HUMAN SERVICES 116, 120–21 (Gale Burford et al. eds., 2019).
271 Profiles in Abolition, supra note 19, at 9:05; see also About Project NIA, supra note 270; Vision
4 Black Lives Webinar Series: Invest-Divest, MOVEMENT FOR BLACK LIVES,
https://soundcloud.com/mvmnt4bl/v4bl-webinar-series-economic/sets [https://perma.cc/F5FZ-Q898]
[hereinafter Invest-Divest] (describing abolition, in the words of panelist Rachel Herzing, as “a set
of political responsibilities” to develop collective security that does not rely on law enforcement).
272 See, e.g., DAVIS, ABOLITION DEMOCRACY, supra note 17, at 102–03; see also Invest-Divest,
supra note 271; Mariame Kaba & John Duda, Towards the Horizon of Abolition: A Conversation
with Mariame Kaba, NEXT SYS. PROJECT (Nov. 9, 2017), https://thenextsystem.org/learn/
stories/towards-horizon-abolition-conversation-mariame-kaba [https://perma.cc/RJ3Q-P6R4]
(“We’re not going to abolish the police, if we don’t abolish capitalism, by the way!”).
capitalism.273 The U.S. capitalist system, which is governed by profit

and market competition, has been integral to racial subordination since
the slavery era and is antithetical to guaranteeing everyone the income,
housing, healthcare, and education required for a society without the
stark inequalities in well-being that fuel the prison industrial
complex.274 Some abolitionists are implementing local social-change
projects, based on principles of mutual aid rather than competition and
profit, to foreshadow and move toward a society that has no need to
cage people.275 The Black Panther Party’s social programs, including a
free breakfast program for elementary school children, free health
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
273 BAPTIST, supra note 110, at xxvi (“From the exploitation, commodification, and torture of
enslaved people’s bodies, enslavers and other free people gained new kinds of modern power . . .
[and] fueled massive economic change.”); EUGENE D. GENOVESE, THE POLITICAL ECONOMY
OF SLAVERY: STUDIES IN THE ECONOMY & SOCIETY OF THE SLAVE SOUTH 3–10 (1965);
Desmond, supra note 110 (tying America’s “low-road” capitalism to slavery and noting that “racist
capitalism . . . ignores the fact that slavery didn’t just deny black freedom but built white fortunes,
originating the black-white wealth gap that annually grows wider”); see also ERIC WILLIAMS,
CAPITALISM AND SLAVERY (3d ed. 1994) (describing the role of slavery in financing the industrial
revolution in Europe).
274 See DAVIS, ARE PRISONS OBSOLETE?, supra note 17, at 16–17, 90–93, 105–08; LOÏC
WACQUANT, PRISONS OF POVERTY 1–5 (Univ. of Minn. Press 2009) (1999); Jeff Adachi, Inter-
view, 15 ASIAN AM. L.J. 225, 239–40 (2008); Patrice A. Fulcher, Hustle and Flow: Prison Privati-
zation Fueling the Prison Industrial Complex, 51 WASHBURN L.J. 589, 601–10 (2012) (drawing
connections between the privatization of prisons and mass incarceration); Gordon Lafer, The Poli-
tics of Prison Labor: A Union Perspective, in PRISON NATION: THE WAREHOUSING OF
AMERICA’S POOR 120, 120–27 (Tara Herivel & Paul Wright eds., 2003) (describing the “lure of
prison labor,” id. at 121, to employers and other political elements of prison labor); Tracie R. Porter,
The School-to-Prison Pipeline: The Business Side of Incarcerating, Not Educating, Students in
Public Schools, 68 ARK. L. REV. 55, 57, 66–68, 73 (2015) (examining the “school-to-prison pipeline
through a capitalistic lens, revealing that African American and Latino students expelled, sus-
pended, or arrested in public schools are exploited by the prison industry,” which relies on unedu-
cated black and Latino boys and men for financial gain, id. at 81); Robert Scott, Using Critical
Pedagogy to Connect Prison Education and Prison Abolitionism, 33 ST. LOUIS U. PUB. L. REV.
401, 403 (2014) (“Looking more deeply at the question of ‘crime’ in a stratified society, the aboli-
tionist ideal is ultimately a world without capitalist constructions of scarcity and market competi-
tion such that prisons are no longer necessary.”); Berger, How Prisons Serve Capitalism, supra note
60; Prisons and Class Warfare, supra note 60. See generally ROBINSON, supra note 60 (exploring
the convergence of racialism and capitalism in Western societies).
275 See McLeod, Envisioning Abolition Democracy, supra note 30, at 1628–33 (highlighting the
work of organizers at the Cure Violence program in Chicago to identify community conflicts and
provide community-led mediation; at the Oakland Power Projects in Oakland to train residents in
de-escalation and other tactics; and at the White Bird Clinic’s Crisis Assistance Helping Out on the
Streets (CAHOOTS) program in Eugene, Oregon, which is operated through a central city ambu-
lance dispatch “in cases of ‘drug and substance abuse, poverty-related issues, and mental health
crises’ without involving police,” id. at 1630 (quoting Rachel Herzing, Big Dreams and Bold Steps
Toward a Police-Free Future, in WHO DO YOU SERVE, WHO DO YOU PROTECT?: POLICE VI-
OLENCE AND RESISTANCE IN THE UNITED STATES 111, 156 (Maya Schenwar et al. eds.,
2016))); see also, e.g., Moten & Harney, supra note 258, at 114–15 (advocating for a political economy
characterized by cooperation and solidarity which “would have a resemblance to communism”);
What Is Mutual Aid?, BIG DOOR BRIGADE, https://bigdoorbrigade.com/what-is-mutual-aid
[https://perma.cc/MZ6J-8UPT] (describing the Big Door Brigade’s database of mutual aid projects
that provide collective child care, housing, food, and legal services).
clinics, and an educational Intercommunal Youth Institute, provide an-

other model for successful community-based services aimed at enhanc-
ing people’s well-being, not increasing corporate profits.276
C. The Unfinished Abolition Struggle
As prison abolitionists describe their objective as dismantling sys-
tems rooted in slavery, they often frame their work as a continuation of
the struggle waged by black freedom fighters and abolitionists during
the slavery era.277 In the program for its 1998 national conference, the
Critical Resistance Organizing Committee posed the question animating
the emerging prison abolition movement: “How can we imagine an abo-
litionism for the prison industrial complex in the way that 19th century
activists imagined the abolition of the slave economy?”278 To be clear,
antebellum slavery abolitionists were not prison abolitionists. Rather,
prison abolitionists today see continuities between the chattel slavery
system and the prison system, as well as between the historic and cur-
rent abolition movements. While human freedom required slavery abo-
lition then, today it requires the abolition of the prison industrial com-
plex that has replaced slavery as the bulwark of racial capitalism. “In
the nineteenth century, antislavery activists insisted that as long as slav-
ery continued, the future of democracy was bleak indeed,” writes
Davis.279 “In the twenty-first century, antiprison activists insist that a
fundamental requirement for the revitalization of democracy is the long-
overdue abolition of the prison system.”280 Prison abolitionists find in-
spiration from the likes of Sojourner Truth, Denmark Vesey, Nat Turner,
John Brown, and Harriet Tubman, for whom “[e]nding slavery appeared
to be an impossible challenge . . . , and yet they struggled for it any-
way.”281 Today’s prison abolitionists are the heirs to a freedom move-
ment that antislavery abolitionists began.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
276 See Nick Chiles, 8 Black Panther Party Programs That Were More Empowering Than Federal
Government Programs, ATL. BLACK STAR (Mar. 26, 2015), https://atlantablackstar.
com/2015/03/26/8-black-panther-party-programs-that-were-more-empowering-than-federal-
government-programs [https://perma.cc/5EXZ-V3U8]. See generally ALONDRA NELSON, BODY
AND SOUL: THE BLACK PANTHER PARTY AND THE FIGHT AGAINST MEDICAL DISCRIMINA-
TION 1–22 (2011).
277 See DAVIS, ARE PRISONS OBSOLETE?, supra note 17, at 39; Nik Heynen, Toward an Aboli-
tion Ecology, 1 ABOLITION 240, 240–47 (2018).
278 Critical Resistance: Beyond the Prison Industrial Complex (Critical Resistance, Berkeley,
C.A.), Sept. 25–27, 1998, at 2, http://criticalresistance.org/wp-content/uploads/2018/09/Critical-
Resistance-1998-Conference-Program.pdf [https://perma.cc/VW2R-4XZ9] (conference pamphlet).
279 DAVIS, ARE PRISONS OBSOLETE?, supra note 17, at 39.
280 Id.
281 Manifesto for Abolition, supra note 30. On enslaved people’s resistance to slavery, including
rebellions, organized escapes, and everyday acts of sabotage, see HERBERT APTHEKER,
AMERICAN NEGRO SLAVE REVOLTS (Int’l Publishers, Co., Inc., 1963) (1943); SARAH H.
BRADFORD, HARRIET TUBMAN: THE MOSES OF HER PEOPLE (Dover Publ’ns, Inc. 2004) (1886);
References to completing the unfinished struggles of past abolition

movements are common in current abolitionist discourse.282 Prison abo-
litionists attribute this unfinished status to the violent evisceration of
Reconstruction by white terrorists and its replacement with a Jim Crow
regime that denied black people their newly won rights and preserved
the racial capitalist power structure.283 Professor Joel Olson highlights
three elements of the antislavery abolitionist struggle that are particu-
larly relevant to the current movement: “[the] model of the political actor
as agitator, [the] emphasis on freedom, and [the] willingness to follow
the radical implications of their demands.”284 For modern-day aboli-
tionists, the radical implication of taking up the longstanding demand
for freedom is the complete eradication of the prison industrial complex.
The centrality to prison abolition theory of the unfinished struggle
to end slavery raises the question of the significance of the abolition
constitutionalism that helped to guide the antebellum struggle. If the
U.S. Constitution was a key battleground for slavery abolitionists,
should prison abolitionists continue to wage the freedom struggle on that
same terrain? If today’s prison abolitionists are the heirs to an antislav-
ery movement that forged a radically different reading of the
Constitution, might they pursue a similarly transformative abolition
constitutionalism for the current carceral era? To answer these
questions, it is helpful to interrogate the role of antebellum slavery abo-
litionists in conceiving and drafting the Reconstruction Amendments af-
ter the Civil War. I turn now to the history of the Reconstruction
Amendments as both a radical and a failed rewriting of the
Constitution’s protection of slavery and the racial capitalist order.
II. ABOLITION AND THE CONSTITUTION

A review of the scholarly literature and popular narratives about the
Reconstruction Amendments makes clear that there is no coherent un-
derstanding of their original aims or meaning. Deep disputes among
antebellum abolitionists over the original Constitution’s stance on slav-
ery presage the differences among contemporary abolitionists on the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
PATRICK H. BREEN, THE LAND SHALL BE DELUGED IN BLOOD: A NEW HISTORY OF THE NAT
TURNER REVOLT (2015); STEPHANIE M.H. CAMP, CLOSER TO FREEDOM: ENSLAVED WOMEN
AND EVERYDAY RESISTANCE IN THE PLANTATION SOUTH (2004); DANIEL RASMUSSEN,
AMERICAN UPRISING: THE UNTOLD STORY OF AMERICA’S SLAVE REVOLT (2011).
282 See, e.g., Manifesto for Abolition, supra note 30 (“The shockingly unfinished character of these
struggles can be seen from some basic facts about our present.”). Gilmore defines abolition as “a
form of consciousness” aimed always toward realizing the “unfinished liberation.” Profiles in Abo-
lition, supra note 19, at 11:03. But she is careful to ask: “Unfinished from what? . . . It is the history
of the abolition of slavery, but it is also the abolition of the idea that somehow precapitalist forms
of exploitation have not persisted through the entire capitalist system.” Id.
283 See supra note 41 and accompanying text.
284 JOEL OLSON, THE ABOLITION OF WHITE DEMOCRACY 136 (2004) (emphasis added).
meaning and utility of constitutional law. After the Reconstruction

Amendments were enacted, legal historians largely neglected the role
that abolitionists played in the constitutional transformation.285 It is
safe to say that the views of the white supremacists who gutted the
Thirteenth and Fourteenth Amendments have gained greater prominence
than have the views of the slavery abolitionists who inspired the constitu-
tional amendments and of the Radical Republicans who drafted them.286
The abolitionist soul of the Reconstruction Amendments is experi-
encing a renaissance, however. Some constitutional scholars have re-
cently argued that the antislavery origins of the Reconstruction
Amendments have been obscured by a revisionist historiography that
downplays the influence and importance of the abolitionist constitution-
alism that preceded the Amendments’ passage.287 Antislavery activists
not only chose to fight on constitutional ground, but, in the process, also
crafted an alternative reading of the Constitution that proved highly
influential for a period of time.288 Moreover, the fact that the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
285 See Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the
Fourteenth Amendment, 3 J. LEGAL ANALYSIS 165, 165–73 (2011) (discussing how legal historians
“long obscured” the abolitionist constitutional roots of Section 1 of the Fourteenth Amendment, id.
at 165).
286 James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A
Revisionist View, 94 N.Y.U. L. REV. (forthcoming Dec. 2019) (manuscript at 1–2) (discussing prom-
inence of Democrats’ and former enslavers’ interpretation of the Thirteenth Amendment’s
Punishment Clause); see also Barnett, supra note 285, at 170–72 (noting that two influential schol-
arly works’ “chilly treatment” of abolitionist constitutionalism, id. at 170, may also have contributed
to this lack of engagement).
287 See Barnett, supra note 285, at 252 (“The contribution of abolitionist constitutionalism to the
original public meaning of Section One [of the Fourteenth Amendment] has long been obscured by
a revisionist history”); Louisa M.A. Heiny, Radical Abolitionist Influence on Federalism and the
Fourteenth Amendment, 17 TEMP. POL. & C.R.L. REV. 155, 155, 169–72 (2007) (arguing that the
Republican framers of the Fourteenth Amendment incorporated antebellum radical abolitionists’
arguments regarding the power of the federal government over the states into the Amendment);
Pope, supra note 286 (manuscript at 1) (arguing that the Thirteenth Amendment’s Republican fram-
ers “took an entirely different view” of the Punishment Clause than the interpretation of the
Punishment Clause that exists in legal and popular discourse); Alexander Tsesis, Principled Gov-
ernance: The American Creed and Congressional Authority, 41 CONN. L. REV. 679, 701–20 (2009)
(examining how abolitionist views on liberty and equality were incorporated into the
Reconstruction Amendments); Alexander Tsesis, The Declaration of Independence and Constitu-
tional Interpretation, 89 S. CAL. L. REV. 369, 390–98 (2016) [hereinafter Tsesis, Constitutional
Interpretation] (examining the incorporation of abolitionist sentiments into the Reconstruction
Amendments); see also Eric Foner, The Strange Career of the Reconstruction Amendments, 108
YALE L.J. 2003, 2005 (1999) [hereinafter Foner, Strange Career] (criticizing Professor Bruce
Ackerman’s We the People for neglecting to give credit to the formerly enslaved for their role in
shaping the Reconstruction Amendments).
288 See JACOBUS TENBROEK, EQUAL UNDER LAW 116–31, 234–39 (1965) (originally pub-
lished as JACOBUS TENBROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH
AMENDMENT (1951)); Barnett, supra note 285, at 253–55; Foner, Strange Career, supra note 287,
at 2004–05; Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism
Through the Thirteenth Amendment, 39 U.C. DAVIS L. REV. 1773, 1820–22 (2006) [hereinafter
Tsesis, Civil Rights Approach].
Constitution remains open to these varying interpretations highlights

the potential for prison abolitionists to reclaim an abolition constitution-
alism — or construct a new one — that facilitates rather than impedes
the completion of the freedom struggle begun by their predecessors.289
A. The Settler-Colonial and Slavery Constitution
The constitutional government of the United States was founded on
the colonization of Native tribes and the enslavement of Africans.290 It
enshrined the power and freedom of a white male elite, along with the
ability of this elite class to restrict the power and freedom of everyone
else. The Constitution was built on a foundation of laws, passed in the
colonies in the 1600s, that constructed a political hierarchy that divided
people into racial categories with differing claims to power and privi-
lege. For example, in 1662, the Virginia Colony imposed double pun-
ishment on Christians who “committ[ed] ffornication [sic] with a negro
man or woman”; the statute also assigned to children born to black
women and “got by any Englishmen” the status of their mothers —
thereby making them enslaveable.291 Racial laws gave propertyless
white men special entitlements over black and Native people.292 As I
put it elsewhere, “[c]olonial landowners inherited slavery as an ancient
practice, but they invented race as a modern system of power.”293
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
289 See Pope, supra note 286 (manuscript at 2) (“Whether to continue denouncing the [Thirteenth]
Amendment or to reclaim it for prisoners’ rights is, then, less a question of jurisprudence than of
constitutional politics.”).
290 See MARY FRANCES BERRY, BLACK RESISTANCE/WHITE LAW: A HISTORY OF CON-
STITUTIONAL RACISM IN AMERICA 4 (Penguin Press 1994) (1971) (arguing slavery constituted an
“integral part” of constitutional law); DAVID WALDSTREICHER, SLAVERY’S CONSTITUTION:
FROM REVOLUTION TO RATIFICATION 16–19 (2009); Maggie Blackhawk, Federal Indian Law
as Paradigm Within Public Law, 132 HARV. L. REV. 1787, 1800 (2019) (explaining the ways in
which “traces of America’s history with colonialism are woven in like threads to the fabric” of the
Constitution); see also Tsesis, Constitutional Interpretation, supra note 287, at 370 (“The original
Constitution contained clauses, which protected the institution of slavery, that were irreconcilable
with the moral commitments the nation undertook at independence.”).
291 WILLIAM WALLER HENING, 2 THE STATUTES AT LARGE; BEING A COLLECTION OF
ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE
YEAR 1619, at 170 (New York, R. & W. & G. Bartow, 1823) (reproducing Act XII, which was passed
in 1662); see also A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE
AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 42–45 (1978) (arguing that the statute
reflected implicit “economic preferences and advantages to whites who sought to extend servitude
and slavery,” id. at 44).
292 See HIGGINBOTHAM, supra note 291, at 40–48; DOROTHY ROBERTS, FATAL INVENTION:
HOW SCIENCE, POLITICS, AND BIG BUSINESS RE-CREATE RACE IN THE TWENTY-FIRST
CENTURY 9–10 (2011) [hereinafter ROBERTS, FATAL INVENTION] (discussing Virginia laws that
“gave propertyless whites special rights over slaves,” id. at 9).
293 ROBERTS, FATAL INVENTION, supra note 292, at 12. Northern states had outlawed slavery
by 1827. See Aaron Schwabach, Thomas Jefferson, Slavery, and Slaves, 33 T. JEFFERSON L. REV.
1, 14–15 (2010). Nonetheless, they enforced a racial caste system that denied equality to free black
residents. See CHRISTOPHER MALONE, BETWEEN FREEDOM AND BONDAGE: RACE, PARTY,
AND VOTING RIGHTS IN THE ANTEBELLUM NORTH (2007); Roger D. Bridges, Antebellum
The framers made the exclusion of Africans and Native tribes from
the democracy they established foundational to the Constitution.294
Many of the nation’s founders were enslavers themselves.295 As white
property holders, they had a vested interest in preserving the fledgling
capitalist economy fueled by captive labor and racist ideology. The orig-
inal Constitution contained no provision that ended the slave trade, no
provision that freed enslaved Africans or prevented future enslavement,
and no provision that protected black people from all manner of degra-
dation on account of their race.296 Although the word “slavery” appeared
nowhere in the Constitution, several provisions explicitly enforced the in-
stitution.297 As journalist Nikole Hannah-Jones summarizes:
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Struggle for Citizenship, 108 J. ILL. ST. HIST. SOC’Y 296, 298 (2015); see also BAPTIST, supra note
110, at 309–42 (discussing how, by the 1840s, the North had built an industrial economy based on
enslaved cotton labor); STEVE LUXENBERG, SEPARATE: THE STORY OF PLESSY V. FERGUSON,
AND AMERICA’S JOURNEY FROM SLAVERY TO SEGREGATION (2019).
294 See BERRY, supra note 290, at 4 (arguing that the oppression of black people through slavery
formed an essential part of constitutional law); Blackhawk, supra note 290, at 1800–01 (arguing
that America’s history of colonialism is embedded in the Constitution).
295 Anthony Iaccarino, The Founding Fathers and Slavery, ENCYCLOPAEDIA BRITANNICA,
https://www.britannica.com/topic/The-Founding-Fathers-and-Slavery-1269536 [https://perma.cc/
8Z9L-ENAE] (listing slaveholding founders, including Presidents Thomas Jefferson, James
Madison, and George Washington).
296 See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 20 (2005) (“Slavery
was the original sin in the New World garden, and the Constitution did more to feed the serpent
than to crush it.”). See generally Blackhawk, supra note 290 (discussing the Constitution’s treatment
of slavery in comparison to its treatment of Native tribes). Indeed, the primacy of slavery implies
that it was foundational to the creation of the nation: the dominant paradigm that locates the
Founding at the drafting of the Constitution, rather than at the origin of slavery, needs further
interrogation. See The 1619 Project, N.Y. TIMES MAG. (Aug. 18, 2019), https://nyti.ms/2H4KijC
[https://perma.cc/WZC7-2FPB] (describing a project that “aims to reframe the country’s history,
understanding 1619 as our true founding”).
297 Of the Constitution’s eighty-four clauses, “[s]ix deal directly with the enslaved and their en-
slavement . . . and five more hold implications for slavery.” Nikole Hannah-Jones, Our Democracy’s
Founding Ideals Were False when They Were Written. Black Americans Have Fought to Make
Them True., N.Y. TIMES MAG. (Aug. 14, 2019), https://nyti.ms/2H63ygp [https://perma.cc/SS2Q-
E2EG]; see also U.S. CONST. art. I, § 2, cl. 3 (determining apportionment of state representatives
by adding the “whole Number of free Persons” and “three fifths of all other Persons”); id. art. I, § 7,
cl. 1 (giving the House of Representatives, the population of which was partially determined by the
Three-Fifths Clause, the power to raise revenue); id. art. I, § 8, cl. 1 (giving Congress the power to
levy taxes and duties, which directly impacted enslavers’ economic interests with respect to crops
grown by slaves that were marketed abroad, such as indigo and tobacco); id. art. I, § 8, cl. 15
(allowing Congress to mobilize a militia, protecting against the threat of slave rebellions); id. art. I,
§ 9, cl. 1 (protecting the importation of slaves until at least 1808); id. art. IV, § 2, cl. 3 (guaranteeing
the return of people “held to Service or Labour” who escaped from one state to another);
WALDSTREICHER, supra note 290, at 3–9 (discussing the absence of slavery from the Constitution
and highlighting constitutional provisions that nevertheless concerned and protected slavery). On
the Constitution’s references to Native tribes, see Blackhawk, supra note 290, at 1800 (“The
Founding Constitution explicitly referenced Indians twice. The first reference was in the Commerce
Clause, which provided Congress with the power in Article I, Section 8 to ‘regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes’ and again to explicitly
‘exclud[e] Indians not taxed’ from Article I’s apportionment scheme.” (alteration in original)).
The Constitution protected the “property” of those who enslaved black peo-
ple, prohibited the federal government from intervening to end the impor-
tation of enslaved Africans for a term of 20 years, allowed Congress to mo-
bilize the militia to put down insurrections by the enslaved and forced states
that had outlawed slavery to turn over enslaved people who had run away
seeking refuge.298
In short, slavery was constitutional.
State and federal courts, including the Supreme Court, consistently
ratified the slavery regime by interpreting key constitutional provisions
and statutes in favor of slaveholders.299 “At no point prior to the Civil
War did the Supreme Court significantly limit slavery or even raise se-
rious questions about its constitutionality,” writes Professor Erwin
Chemerinsky.300 The Court’s most controversial proslavery decision,
Dred Scott v. Sandford,301 ruled against a black man, Dred Scott, who
had lived on free soil in Illinois and what was then the territory of
Wisconsin and sued for his freedom in Missouri.302 Rather than point
to fundamental principles of equality or engage in careful textual exege-
sis, the Court pointed to the nation’s coherent system of antiblack dis-
crimination and conducted a cursory examination of the Constitution to
establish that no black person was a citizen of the United States.303 In
his opinion for the Court, Chief Justice Taney noted that, at the time the
Constitution was drafted, “the civilized portion of the white race” uni-
versally regarded black people as “so far inferior, that they had no rights
which the white man was bound to respect; and that the negro might
justly and lawfully be reduced to slavery for his benefit.”304 The Dred
Scott decision enshrined the distinguishing feature of American racial
slavery that categorically excluded black people from democracy: the
belief that “black people were not merely enslaved but were a slave
race.”305 Thus, America’s original constitutionalism was staunchly co-
lonial, white supremacist, and proslavery.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
298 Hannah-Jones, supra note 297.
299 See ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PRO-
CESS 119–21 (1975) (citing cases in which judges upheld slavery based on legal justifications).
300 See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW POLICIES 755 (5th ed. 2017); see also
AMAR, supra note 296, at 260–65 (discussing the antebellum Supreme Court’s slavery-related deci-
sions); BERRY, supra note 290, at 53 (discussing a Supreme Court decision reaffirming the legal
standing of proslavery groups).
301 60 U.S. (19 How.) 393 (1857).
302 Id. at 493 (Campbell, J., concurring).
303 Id. at 407–12 (majority opinion). Chief Justice Taney pointed to two clauses in the
Constitution, regarding importation and recovery of slaves, to support his interpretation that the
text excluded blacks from “people of the United States,” though neither determined the legal status
of free blacks. Id. at 411 (emphasis omitted).
304 Id. at 407.
305 Hannah-Jones, supra note 297.
B. The Radical History of the Reconstruction Amendments

A renewed interest among constitutional scholars in the abolitionist
origins of the Reconstruction Amendments has generated important in-
sights on antebellum abolitionists’ thinking and activism regarding the
Constitution. Recent research has illuminated an alternative public
meaning of the Constitution residing in “largely forgotten books, pam-
phlets, articles, resolutions, and legal briefs,” rather than on the pages of
Supreme Court decisions.306
The nineteenth-century movement to abolish slavery prominently in-
cluded engaging with the U.S. Constitution. Antislavery theorizing and
activism were essential both to developing a reading of the existing con-
stitutional text that rendered human bondage incompatible with funda-
mental constitutional principles of liberty, equality, and democracy, and
to amending the text when those principles alone failed to end the slav-
ery system.307 The abolition struggle profoundly shaped not only the
specific language of the Reconstruction Amendments but also the very
meaning of those constitutional principles.308 In opposition to the pre-
vailing constitutional philosophy that upheld slavery, antislavery activ-
ists forged a radically divergent abolition constitutionalism.309 Aboli-
tionists fought for the amended Constitution to embody their radical
constitutional vision and to install a “second founding” of the nation
built on equal citizenship and freedom of labor.310
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
306 Barnett, supra note 285, at 167.
307 See TENBROEK, supra note 288, at 234–39 (demonstrating that the Reconstruction
Amendments represent the culmination of more than thirty years of antislavery efforts).
308 See Barnett, supra note 285, at 168–69 (noting that abolitionists’ constitutional arguments
included all four concepts enumerated in Section 1 of the Fourteenth Amendment); Foner, Strange
Career, supra note 287, at 2004 (“The origins of the idea of an American people unbounded by race
lie not with the Founders, who by and large made their peace with slavery, but with the abolition-
ists.”); Pope, supra note 286 (manuscript at 9) (noting that the Thirteenth Amendment “was con-
ceived as a regime shift in constitutional law”); Tsesis, Civil Rights Approach, supra note 288, at
1800 (noting that the framers of the Thirteenth Amendment constitutionalized abolitionist ideas on
“the universality of fundamental rights”).
309 See Foner, Strange Career, supra note 287, at 2004 (“In elaborating their criticism of slavery
and attempting to reinvigorate the idea of freedom as a truly universal entitlement, the abolitionists
developed what might be called an alternative constitutionalism.”); see also MICHAEL KENT
CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF
RIGHTS 26–56 (1986); DAVID A.J. RICHARDS, CONSCIENCE AND THE CONSTITUTION: HIS-
TORY, THEORY, AND LAW OF THE RECONSTRUCTION AMENDMENTS 3 (1993) (arguing abo-
litionists developed a “right to conscience” that envisioned changing the Constitution from a pro-
slavery document to one grounded in human rights); TENBROEK, supra note 288, at 167–69;
WILLIAM M. WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA,
1760–1848, at 249–75 (1977). But see Michael W. McConnell, The Fourteenth Amendment: A Sec-
ond American Revolution or the Logical Culmination of the Tradition?, 25 LOY. L.A. L. REV. 1159,
1174 (1992) (arguing the Fourteenth Amendment fulfills equality principles inherent in the original
Constitution rather than radically transforming them).
310 Elizabeth Reilly, Introduction to INFINITE HOPE & FINITE DISAPPOINTMENT: THE
STORY OF THE FIRST INTERPRETERS OF THE FOURTEENTH AMENDMENT 1, 1 (Elizabeth
From the 1830s to the 1850s, abolitionists engaged in an intense —

at times, acrimonious — debate over the Constitution’s stance on slav-
ery.311 On one side stood the Garrisonians, whose namesake, William
Lloyd Garrison, called the Constitution a “covenant with death and an
agreement with hell” because it permitted slavery.312 On the other were
antislavery constitutionalists like Representative John Bingham,
Lysander Spooner, and Theodore Dwight Weld, who read the
Constitution instead as prohibiting or constraining the expansion of
bondage.313
Abolitionists asserted a number of grounds for their claim that the
Constitution was an antislavery document. First, they distinguished be-
tween the democratic principles stated in its text that repudiated the
existence of slavery and the proslavery intent of its framers and proslav-
ery interpretations of slaveholders and judges.314 As Professor Randy
Barnett explains, several leading abolitionists argued that the
Constitution’s inclusive language, including that of “We the People,”
trumped the exclusionary meanings promulgated to deny freedom to
black people.315 In his celebrated analysis of the Constitution, The
Unconstitutionality of Slavery, published in 1845, Spooner elaborated
that citizenship rights should extend to black people based on the origi-
nal public meaning of the text rather than the intentions of its fram-
ers.316 Proceedings of the Convention of Radical Political Abolitionists,
a pamphlet published to commemorate the proceedings of an 1855 abo-
litionist convention, similarly urged readers “to construe the Constitu-
tion as it reads, and not as the slaveholders pretend that it means.”317
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Reilly ed., 2011) [hereinafter INFINITE HOPE & FINITE DISAPPOINTMENT] (noting that some have
called the adoption of the Fourteenth Amendment the “second founding”).
311 See DAVID W. BLIGHT, FREDERICK DOUGLASS: PROPHET OF FREEDOM 213–15, 293–
94, 316–17 (2018); Barnett, supra note 285, at 167 (“From the 1830s to the 1850s, a truly remarkable
body of constitutional argumentation was developed by . . . abolitionist lawyers and laymen to eval-
uate the constitutionality of slavery.”).
312 Barnett, supra note 285, at 167; Rebecca E. Zietlow, The Ideological Origins of the Thirteenth
Amendment, 49 HOUS. L. REV. 393, 414–15 (2012) (both quoting William Lloyd Garrison, The
Constitution: A “Covenant with Death and an Agreement with Hell,” 12 THE LIBERATOR 71 (1842)).
Garrison helped to launch the abolitionist movement with the publication of his newspaper The
Liberator in January 1831. THOMAS G. MITCHELL, ANTISLAVERY POLITICS IN ANTEBEL-
LUM AND CIVIL WAR AMERICA 1 (2007).
313 See Barnett, supra note 285, at 167; see also Randy E. Barnett, From Antislavery Lawyer to
Chief Justice: The Remarkable but Forgotten Career of Salmon P. Chase, 63 CASE W. RES. L. REV.
653, 654 (2013).
314 See, e.g., Barnett, supra note 285, at 201–03 (describing Lysander Spooner’s argument that
the assertions about the founders’ intent should not be used to read protections for slavery into
euphemistic passages in the Constitution).
315 See id. at 205–10, 245.
316 See id. at 198–210.
317 Id. at 243 (quoting CENT. ABOLITION BD., PROCEEDINGS OF THE CONVENTION OF
RADICAL POLITICAL ABOLITIONISTS 6 (1855)).
Second, abolitionists argued that specific constitutional provisions

made slavery illegal and black people citizens. Some abolitionists ar-
gued that, regardless of the Constitution’s original provisions, the Due
Process Clause of the Fifth Amendment took precedence and prohibited
slavery.318 In an 1859 speech, Bingham, who later served as a member
of the Committee of Fifteen on Reconstruction in the Thirty-Ninth
Congress,319 described “the rights protected by the Fifth Amendment as
‘natural or inherent rights, which belong to all men irrespective of all
conventional regulations.’”320 Bingham emphasized that because the
text referred to “no person,” it “makes no distinction either on account
of complexion or birth — it secures these rights to all persons within its
exclusive jurisdiction. This is equality.”321 That constitutional equality
guarantee, Bingham noted, was not limited by “the interpolation into it
of any word of caste, such as white, or black, male or female.”322
Weld, a full-time antislavery activist married to abolitionist and
women’s rights advocate Angelina Grimké, also relied on due process
concepts to oppose slavery.323 He contested judicial protection of slave-
holders’ due process rights by observing that “[a]ll the slaves in the
District have been ‘deprived of liberty’ by legislative acts.”324 Weld ar-
gued that if those legislative acts did not constitute due process of law,
“then the slaves were deprived of liberty unconstitutionally, and these
acts are void. In that case the constitution emancipates them.”325
Another alternative reading of the Constitution extended the concept
of birthright citizenship to African Americans, setting the stage for the
Fourteenth Amendment’s explicit provision. In her popular treatise, An
Appeal in Favor of that Class of Americans Called Africans, published
in 1833, feminist abolitionist Lydia Maria Child made the novel claim
that black people were “compatriots, not foreigners.”326 Soon thereafter,
the 1838 treatise Rights of Colored Men to Suffrage, Citizenship and
Trial by Jury, by William Yates, became an influential authority on the
legal status of free black people that defended their citizenship rights
and argued against their expulsion from the United States.327
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
318 See id. at 179–82.
319 Id. at 166–67.
320 Id. at 251 (quoting CONG. GLOBE, 35th Cong., 2d Sess. 983 (1859) (statement of Rep. John
Bingham)).
321 Id. at 252 (quoting CONG. GLOBE, 35th Cong., 2d Sess. 985 (statement of Rep. John Bingham)).
322 Id. (quoting CONG. GLOBE, 35th Cong., 2d Sess. 985 (statement of Rep. John Bingham)).
323 See id. at 176–82.
324 See id. at 180 (quoting Theodore Dwight Weld, The Power of Congress Over the District of
Columbia, N.Y. EVENING POST, Dec. 29, 1837–Jan. 30, 1838, at 40).
325 Id. (quoting Theodore Dwight Weld, The Power of Congress Over the District of Columbia,
N.Y. EVENING POST, Dec. 29, 1837–Jan. 30, 1838, at 40).
326 Foner, Strange Career, supra note 287, at 2004.
327 MARTHA S. JONES, BIRTHRIGHT CITIZENS: A HISTORY OF RACE AND RIGHTS IN
ANTEBELLUM AMERICA 1–5 (2018). Jones notes that “the equation linking rights and citizenship was
Even more neglected in constitutional history than these white

abolitionists are black Americans who theorized and defended claims to
equal citizenship. Although the fiery orator and prominent antislavery
activist Frederick Douglass, to whom I will turn next, remains well
known, other African Americans whose legal arguments contributed to
antebellum abolitionist constitutionalism have received far less atten-
tion.328 In Birthright Citizens: A History of Race and Rights in
Antebellum America, Professor Martha Jones recounts how free black
people living in Baltimore before the Civil War fought against the threat
of deportation by making legal arguments in newspapers, legislatures,
and courts that birth in the United States established their citizenship
and guaranteed their rights.329 Black Baltimoreans also advanced this
claim by conducting themselves like rights-bearing citizens when they
litigated disputes over property, credit, and family autonomy in court.330
Free African Americans’ legal challenges to exploitative contracts
with white people before the Civil War are especially instructive. In the
antebellum period, black residents of Baltimore brought insolvency peti-
tions, petitions for writs of habeas corpus, petitions for debt relief, and
challenges to apprenticeship contracts with unscrupulous whites.331
They also sometimes served as court-appointed trustees and even testi-
fied against white parties, at a time when state law prohibited such testi-
mony.332 For example, a laborer named Charles Snell petitioned for a
writ of habeas corpus at the Circuit Court of Baltimore City to challenge
the indenture of his seven-year-old daughter Mary to the mother of
police officer James Maddox.333 According to 1860 census records, Mary
eventually returned to Snell’s custody.334
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
never fixed.” Id. at 11. In the antebellum period, African Americans both sought to secure their rights
as evidence of their citizenship and argued that citizenship was “the gateway to rights.” Id.
328 See DU BOIS, supra note 173, at 724–27 (criticizing scholars of his time for ignoring the par-
ticipation of emancipated slaves in the history of Reconstruction and failing to “conceive [of] Ne-
groes as men,” id. at 726).
329 JONES, supra note 327, at 10.
330 Id. at 19, 108–27 (citing Owens v. Williams, a case where the Baltimore Orphan’s Court al-
lowed for the return of a young black boy to his mother from his indenture and thus contemplated
parental rights for black parents, and Rollins v. Anderson Bros., a case where the limits of such
parental rights were outlined when the plaintiff failed to regain custody of his apprenticed child).
331 See id. at 109.
332 See id.
333 See id. at 120–21.
334 Id. at 121. Black parents continued to use habeas corpus to contest the apprenticeships of
their children after the Civil War. Radical Republican Judge Bond not only voided individual
apprenticeship arrangements brought before him but also went on to hold all such contracts unconsti-
tutional because the state’s apprenticeship laws treated black and white children differently. Id. at 150
(discussing Judge Bond’s conviction that since “the state’s new constitution of 1864 abolished
slavery . . . it also extinguished all legal distinctions between the races”). In 1867, the U.S. Circuit Court
for the District of Maryland declared that the state’s apprenticeship laws violated the Civil Rights Act
of 1866. Id. at 218 n.9 (citing In re Turner, 24 F. Cas. 337 (C.C.D. Md. 1867) (No. 14,247)).
Thus, antebellum abolitionist activists, lawyers, and ordinary black

people asserted a robust reading of the Constitution’s text that demon-
strated the unconstitutionality of slavery. Through their legal scholar-
ship, public propaganda, and court claims, slavery opponents
constructed an abolition constitutionalism based on free labor and equal
citizenship that contradicted the dominant jurisprudence favoring
slaveholders.
An astounding aspect of this constitutional story is that many black
abolitionists grounded their radical approach to citizenship and freedom
in the U.S. Constitution itself, a text that had been written and inter-
preted to enslave them. For instance, as a formerly enslaved person,
Frederick Douglass envisioned an abolitionist constitution even before
slavery was abolished. I want to spotlight Douglass’s approach to the
Constitution because it illuminates the tension inherent in an abolition
constitutionalism that recognizes the animosity of constitutional law to-
ward black people while demanding constitutional recognition of black
people’s citizenship and humanity.
Douglass struggled mightily with whether the Constitution was a
proslavery or antislavery document.335 Douglass saw the Constitution’s
“radical defect” as an internal contradiction that put the document “at
war with itself”: “Liberty and Slavery — opposite as heaven and hell —
are both in the Constitution,” he wrote in April 1850.336 Douglass ini-
tially advocated for the Garrisonian rejection of the Constitution as a
slaveholding document. In 1849, he wrote:
[T]he original intent and meaning of the Constitution (the one given to it
by the men who framed it, those who adopted [it], and the one given to it
by the Supreme Court of the United States) makes it a pro-slavery instru-
ment . . . [that] I cannot bring myself to vote under, or swear to support.337
During a debate in support of this position, Douglass condemned the
framers’ “attempt[] to unite Liberty in holy wedlock with the dead body
of Slavery, [through which] the whole was tainted. Let this unholy, un-
righteous union be dissolved.”338
By mid-1851, Douglass parted with the Garrisonians and declared
that he planned to promote the antislavery interpretation of the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
335 See BLIGHT, supra note 311, at 215.
336 Id. (quoting Frederick Douglass, Oath to Support the Constitution, NORTH STAR, Apr. 5, 1850).
337 Letter from Frederick Douglass to C.H. Chase, NORTH STAR, Feb. 9, 1849, reprinted in 1
THE LIFE AND WRITINGS OF FREDERICK DOUGLASS: EARLY YEARS, 1817–1849, at 352, 353
(Philip S. Foner ed., 1950) [hereinafter LIFE AND WRITINGS].
338 FREDERICK DOUGLASS, Is the Constitution Pro-Slavery?, in 2 THE FREDERICK
DOUGLASS PAPERS: SERIES ONE: SPEECHES, DEBATES, AND INTERVIEWS, 1847–1854, at 217,
223 (John W. Blassingame ed., 1979) [hereinafter THE FREDERICK DOUGLASS PAPERS]; see also
Wilson J. Moses, “The Ever-Present Now”: Frederick Douglass’s Pragmatic Constitutionalism, 99
J. AFR. AM. HIST. 71, 77–78 (2014) (quoting Douglass as stating that he “wish[ed] to dissolve the
Union” because of its support of slavery, id. at 78).
Constitution.339 In his autobiography, Douglass describes his conversion

to the antislavery side after years of careful consideration and abolition-
ist activism including publishing his paper, lecturing against slavery, and
concealing fugitive slaves:
By such a course of thought and reading I was conducted to the conclusion
that the Constitution of the United States — inaugurated to “form a more
perfect union, establish justice, insure domestic tranquility, provide for the
common defense, promote the general welfare, and secure the blessings of
liberty” — could not well have been designed at the same time to maintain
and perpetuate a system of rapine and murder like slavery, especially as not
one word can be found in the Constitution to authorize such a belief.340
Douglass applied the well-accepted method of interpreting a docu-
ment’s parts in light of the whole: “[I]f the declared purposes of an in-
strument are to govern the meaning of all its parts and details, as they
clearly should,” he argued, “the Constitution of our country is our war-
rant for the abolition of slavery in every state of the Union.”341 Thus,
Douglass read the Constitution as an abolitionist document at a time
when no judge in the nation questioned slavery’s constitutionality. To
be clear, Douglass did not adopt the reigning constitutional meaning or
an originalist interpretation based on the framers’ intent.342 Rather, he
helped to construct a new abolition constitutionalism that radically de-
parted from what prevailed.343
Douglass didn’t renounce the proslavery interpretation out of igno-
rance of its origins or its use to uphold slavery. After all, this was the
same activist who in 1852 delivered “the rhetorical masterpiece of
American abolitionism”344 in Rochester’s Corinthian Hall, asking:
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
339 BLIGHT, supra note 311, at 216. Douglass’s adoption of the antislavery perspective generated
bitter public conflict between Douglass and Garrison over the Constitution’s nature. See id. at
216–27. During the conflict, the two former comrades sunk into ad hominem attacks of each other’s
motivations. See id.
340 FREDERICK DOUGLASS, LIFE AND TIMES OF FREDERICK DOUGLASS 261–62
(MacMillan & Co. 1962) (1892) [hereinafter DOUGLASS, LIFE AND TIMES] (quoting U.S. CONST.
pmbl.); see also Moses, supra note 338, at 73.
341 DOUGLASS, LIFE AND TIMES, supra note 340, at 262.
342 But see McConnell, supra note 309, at 1170 (attempting to align Reconstruction’s “return to
original principles” with Douglass’s abolition constitutionalism).
343 I disagree with Professor Michael McConnell’s attempt to align the claim that the
Reconstruction was “a return to original principles” with Douglass’s abolition constitutionalism.
McConnell’s argument that the Fourteenth Amendment was not a radical departure from the orig-
inal Constitution discounts the Constitution’s colonial structure as well as the activism abolitionists
undertook to amend it. Compare id. at 1175 (arguing that slavery was tolerated “only because of a
combination of practical necessity and an over-optimistic belief that it would fade away as a result
of its own inefficiency”), with Aziz Rana, Colonialism and Constitutional Memory, 5 U.C. IRVINE L.
REV. 263, 267 (2015) (criticizing the account of the United States as a civic polity dedicated to equality
because this account “reads such aspirations back into the very founding of the United States, albeit
while accepting the extent to which equality may have been deferred in historical fact”).
344 BLIGHT, supra note 311, at 230.
“What, to the American slave, is your 4th of July?”345 His answer was
to damn “the hypocrisy of the nation”:
To him, your celebration is a sham; . . . your national greatness, swelling
vanity; your sounds of rejoicing are empty and heartless; . . . your shouts of
liberty and equality, hollow mockery; . . . a thin veil to cover up crimes
which would disgrace a nation of savages.346
Recognizing black people’s forced exclusion from the Declaration’s
promises, he told more than five hundred abolitionists in attendance,
“This Fourth of July is yours, not mine.”347
Rather, Douglass adopted the antislavery view because he refused to
concede constitutional authority to slaveholders.348 He explained: “I am
sick and tired of arguing on the slaveholders’ side of this ques-
tion, . . . although they are doubtless right so far as the intentions of the
framers of the Constitution.”349 It was out of his political vision for an
abolition constitutionalism, grounded in a mixture of natural law and
constitutional principles that opposed slavery, that Douglass relin-
quished the proslavery reading of the Constitution.350 In addition,
Douglass argued for the constitutional necessity of abolition because the
“Slave Power” increasingly threatened to engulf even white people’s lib-
erties. The Slave Power, a political term coined by abolitionists in the
1830s and widely used in the 1850s, “referred not only to Southern
whites who owned slaves but to constitutional provisions and political
practices that gave them disproportionate power in the federal govern-
ment.”351 In 1854, Douglass warned white Americans that “[s]lavery
aim[ed] at absolute sway” over the nation’s future.352 “It would drive
out the school-master, and install the slave-driver, burn the school-
house, and erect the whipping-post, prohibit the Holy Bible and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
345 FREDERICK DOUGLASS, The Meaning of July Fourth for the Negro, in FREDERICK
DOUGLASS: SELECTED SPEECHES AND WRITINGS, supra note 1, at 188, 196.
346 Id. at 196–97.
347 Id. at 194; see Abigail Censky, ‘What to the Slave Is the Fourth of July?’: Frederick Douglass,
Revisited, NPR (July 5, 2017), https://n.pr/2uKB7MG [https://perma.cc/EHD6-YNV6] (noting that
over five hundred abolitionists were in the audience for Douglass’s speech).
348 See BLIGHT, supra note 311, at 215. In response to the Dred Scott decision, Douglass denied
that the Court had the authority to decide the question, declaring that “the Supreme Court of the
Almighty is greater.” Id. at 279 (quoting FREDERICK DOUGLASS, The Dred Scott Decision, in 2
LIFE AND WRITINGS, supra note 337, at 407, 411).
349 Id. at 215 (quoting Letter from Frederick Douglass to Gerrit Smith (Jan. 31, 1851)).
350 Id. at 215, 235. Historian Professor David Blight explains Douglass’s embrace of the
Constitution as “a kind of radical hope in the theory of natural rights, and in a Christian millenni-
alist view of history as humankind’s grand story, punctuated by terrible ruptures followed by po-
tential regenerations.” Id. at 236. Blight also notes that Douglass’s abolitionist strategy evolved
into “a mixture of righteousness and pragmatism.” Id. at 270.
351 Garrett Epps, The Antebellum Political Background of the 14th Amendment, in INFINITE
HOPE & FINITE DISAPPOINTMENT, supra note 310, at 11; see id. at 11–12, 15.
352 BLIGHT, supra note 311, at 272 (quoting FREDERICK DOUGLASS, The Nebraska Controversy,
in 2 LIFE AND WRITINGS, supra note 337, at 276, 278).
establish the bloody slave code, dishonor free labor with its hope of re-
ward, and establish slave labor with its dread of the lash.”353 To
Douglass, then, basic constitutional principles were antagonistic to the
existence of slavery, and the existence of slavery was antagonistic to the
survival of constitutional democracy.
The hope Douglass found in the Constitution was also anchored in
his awareness of the political work it would take to realize its antislavery
values. Douglass warned against the foolish belief that principles by
themselves would change power arrangements. “The whole history of
the progress of human liberty shows that all concessions yet made to her
august claims, have been born of earnest struggle,” Douglass declared in
a speech in Canandaigua, New York, on August 3, 1857.354 “If there is
no struggle there is no progress.”355 Douglass urged violent resistance
to the Fugitive Slave Act, telling abolitionists they “ought to say to
Slaveholders that they are in danger of bodily harm if they come here,
and attempt to carry men off into bondage”356 and predicting that “two
or three dead slaveholders will make this law a dead letter.”357 Douglass
saw the 1861 outbreak of the Civil War — what he later called the “abo-
lition war”358 — as ultimately deciding “which of the two, Freedom or
Slavery, shall give law to this republic.”359 Thus, Douglass at once
reimagined the Constitution’s principles as opposed to slavery, de-
nounced the nation’s abysmal failure to abide by them, and recognized
the physical and political battle it would take to abolish slavery in
practice.
Douglass ultimately may have put too much faith in the amended
Constitution’s ability to guarantee black people’s freedom once slavery
ended. In her 1998 essay From the Prison of Slavery to the Slavery of
Prison: Frederick Douglass and the Convict Lease System, Davis faults
Douglass for centering his post-Emancipation advocacy on the right to
vote rather than on opposing convict leasing’s evisceration of blacks’
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
353 Id. (quoting DOUGLASS, The Nebraska Controversy, supra note 352, at 276, 278); see also
DOUGLASS, LIFE AND TIMES, supra note 340, at 292–313.
354 FREDERICK DOUGLASS, West India Emancipation, in FREDERICK DOUGLASS: SELECTED
SPEECHES AND WRITINGS, supra note 1, at 358, 367.
355 Id.
356 FREDERICK DOUGLASS, Resistance to Blood-Houndism, in 2 THE FREDERICK DOUGLASS
PAPERS, supra note 338, at 272, 275.
357 Id. at 276. In 1851, Douglass and his wife Anna harbored William Parker, a black activist,
and two escaped slaves, named Alexander Pinckney and Abraham Johnson, who had fled
Christiana, Pennsylvania. Parker had organized a crowd to protect Pinckney and Johnson when
their enslaver, Edward Gorsuch, traveled from Baltimore to retrieve them at gunpoint. Gorsuch
was killed in the ensuing melee. BLIGHT, supra note 311, at 243.
358 Frederick Douglass, Speech of Frederick Douglass on the War, DOUGLASS’ MONTHLY, Feb.
1862, at 597.
359 Frederick Douglass, The New President, DOUGLASS’ MONTHLY, Mar. 1861, at 419.
nascent political power.360 Still, Douglass’s evolving engagement with

both constitutional philosophy and radical political activism offers
important insights on the potential for the revival of abolition constitu-
tionalism in the present era.
C. The Reconstruction Constitution
In 1865, Congress enacted the Thirteenth Amendment to the U.S.
Constitution, prohibiting slavery and involuntary servitude, except as
punishment for crime, throughout the United States.361 Slavery’s defeat
was met immediately by a terrorist effort to return newly freed blacks
to servitude and reinstate white rule. President Abraham Lincoln’s re-
placement, President Andrew Johnson, a white-supremacist former
slaveholder, rejected Radical Republicans’ vision for Reconstruction
and supported the rights of southern states.362 President Johnson
subscribed to the view that enslaved people had conspired with their
enslavers to oppress non-slaveholding whites, and he cast black people’s
political advancement in opposition to the common white man’s
rights.363 President Johnson quickly began pardoning ex-Confederates
and returning confiscated and abandoned land to slaveholders.364
Instead of getting title to the land they occupied, as they deserved both
as reparations and as reward, freed black people were forced into wage
servitude for the white landowners.365 “How many black men and
women were beaten, flogged, mutilated, and murdered in the first years
of emancipation will never be known,” writes Professor Leon Litwack
in Been in the Storm So Long: The Aftermath of Slavery.366 After
sabotaging the process, President Johnson declared Reconstruction com-
plete when Congress returned from recess in December 1865.367
President Johnson also attempted to sabotage the Freedmen’s Bureau,
an agency of the War Department established by Congress in March
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
360 See ANGELA Y. DAVIS, From the Prison of Slavery to the Slavery of Prison: Frederick
Douglass and the Convict Lease System, in THE ANGELA Y. DAVIS READER 74, 74–79 (Joy James
ed., 1998).
361 U.S. CONST. amend. XIII, § 1.
362 See BLIGHT, supra note 311, at 472 (describing President Johnson as a “staunch white su-
premacist who accepted the end of slavery but could not abide the idea of black civil and political
rights”); FONER, RECONSTRUCTION, supra note 41, at 176–97.
363 FONER, RECONSTRUCTION, supra note 41, at 181.
364 See BLIGHT, supra note 311, at 472; FONER, RECONSTRUCTION, supra note 41, at 187–89.
365 See BLIGHT, supra note 311, at 472.
366 LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF SLAVERY
276–77 (1979).
367 BLIGHT, supra note 311, at 472. The Compromise of 1877, which officially ended
Reconstruction, required the federal government to pull the last U.S. troops from the former Con-
federate states in exchange for Republican Rutherford B. Hayes claiming the presidency after the
contested 1876 presidential election. C. VANN WOODWARD, REUNION AND REACTION: THE
COMPROMISE OF 1877 AND THE END OF RECONSTRUCTION 5–7 (Anchor Books 1956) (1951).
1865 to provide education, aid, land, and protection to newly freed

blacks and white refugees.368 Although Congress overrode his veto of
an 1866 bill extending the Bureau’s work for two years,369 the Bureau’s
efforts to distribute land to southern blacks were thwarted by white
terroristic thefts of black people’s property and President Johnson’s res-
toration of property to whites.370
The Radical Republicans responded to the crisis by passing the Civil
Rights Act of 1866 over President Johnson’s veto and enacting the
Fourteenth Amendment in 1868 to extend to the formerly enslaved, as
well as to any person born in the United States, the guarantee of
citizenship.371 The language of the Fourteenth Amendment can be
traced to specific speeches and writings of leading antislavery advocates
who developed an abolition constitutionalism in the preceding dec-
ades.372 Most of these theorists were also intensely engaged in political
activism and had been key players in the Liberty Party, which eventu-
ally became the Republican Party.373 Radical Republican leaders, like
Charles Sumner and Henry Wilson in the Senate and James Ashley and
Thaddeus Stevens in the House, urged incorporating their vision of slav-
ery eradication and free labor in the rewritten Constitution’s text.374
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
368 See FONER, RECONSTRUCTION, supra note 41, at 68–69, 190.
369 See CONG. GLOBE, 39th Cong., 1st Sess. 1861 (1866); Freedmen’s Bureau Acts of
1865 and 1866, U.S. SENATE, https://www.senate.gov/artandhistory/history/common/generic/
FreedmensBureau.htm [https://perma.cc/8GM7-WSE7]; see also Mark A. Graber, The Second
Freedmen’s Bureau Bill’s Constitution, 94 TEX. L. REV. 1361, 1367 (2016).
370 See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and
Reconstruction, 61 N.Y.U. L. REV. 863, 875 (1986) (“Finally, President Andrew Johnson, a
Democratic Conservative, actually encouraged Southern resistance through his policy of appease-
ment.”); Thomas D. Morris, Military Justice in the South, 1865–1868: South Carolina as a Test
Case, 54 CLEV. ST. L. REV. 511, 521–23 (2006) (discussing the hope of freed blacks to become farm-
ers, which ultimately proved to be “hollow . . . since the pardon and amnesty program of the
President . . . carried with it the full restoration of all property rights,” id. at 521); Trymaine Lee, A
Vast Wealth Gap, Driven by Segregation, Redlining, Evictions and Exclusion, Separates Black and
White America., N.Y. TIMES MAG. (Aug. 14, 2019), https://nyti.ms/2H2v6mP
[https://perma.cc/LCX9-AE5Z] (“The period that followed the Civil War was one of economic terror
and wealth-stripping that has left black people at lasting economic disadvantage.”).
371 U.S. CONST. amend. XIV; Note, Congress’s Power to Define the Privileges and Immunities
of Citizenship, 128 HARV. L. REV. 1206, 1216–20 (2015) (describing the passage of the Civil Rights
Act of 1866).
372 See Barnett, supra note 285, at 166–69; Howard Jay Graham, The Early Antislavery Back-
grounds of the Fourteenth Amendment, 1950 WIS. L. REV. 610, 653–61. For a detailed analysis of
the continuities between the constitutionalism of a number of abolitionist writers and activists, see
Barnett, supra note 285.
373 Barnett, supra note 285, at 169.
374 See FONER, RECONSTRUCTION, supra note 41, at 228–31; Paul Finkelman, The Historical
Context of the 14th Amendment, in INFINITE HOPE & FINITE DISAPPOINTMENT, supra note
310, at 35, 38–44 (discussing the politics of Stevens and Bingham and concluding “[t]he evidence
suggests that for Stevens, Bingham, and other Republicans, black civil rights mattered,” id. at 44);
James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary
Servitude,” 119 YALE L.J. 1474, 1518–20 (2010) (“Senators and representatives stressed that the
The abolitionist Constitution was forged, as well, by ordinary black

folks who abandoned plantations, served in the Union Army, and
demanded recognition of their equal citizenship.375 After 1867, four mil-
lion formerly enslaved people grabbed the opportunity Emancipation
afforded them to create their own economic, social, and political lives
independent of white domination.376 They gathered their family
members,377 established farms and businesses, and ran for public
office.378 Black Americans elected to southern legislatures helped to in-
stall egalitarian state constitutions, enact civil rights legislation, and
establish public education.379 Jones argues that, in the period surround-
ing the Civil War, the rights of African Americans were substantiated
not only by Congress’s enactment of the Reconstruction Amendments
and the Civil Rights Act of 1866, but also by “a view of rights as secured
through their performance.”380 “Free African Americans became rights
holders when they managed to exercise those privileges that rights hold-
ers exercised. And often they did so in ways that local authorities were
bound to respect and enforce,” Jones explains — “[t]hey traveled be-
tween the states, they gathered in religious assemblies, they sued and
were sued, testified, and secured their persons and property before the
law.”381 Thus, by resisting white domination and acting like citizens,
black people have secured greater freedom apart from official recogni-
tion of their rights, thereby changing the Constitution’s meaning to en-
compass their freedom.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
[Thirteenth] Amendment would protect the freedom of labor.” Id. at 1518.); Tsesis, Civil Rights
Approach, supra note 288, at 1801–02 (discussing the abolitionist principles behind the Thirteenth
Amendment); Lea VanderVelde, Henry Wilson: Cobbler of the Frayed Constitution, Strategist of the
Thirteenth Amendment, 15 GEO. J.L. & PUB. POL’Y 173, 176 (2017) (discussing “Senator Henry
Wilson’s significance as leader of the Radical Republicans in developing the labor vision [of the
Thirteenth Amendment] and amending the Constitution accordingly”); Zietlow, supra note 312, at
443–44 (examining Congressman James Ashley’s antislavery interpretation of the Constitution,
which influenced the drafting of the Thirteenth Amendment).
375 See FONER, RECONSTRUCTION, supra note 41, at 7–10; JONES, supra note 327, at 146–53;
Foner, Strange Career, supra note 287, at 2005.
376 FONER, RECONSTRUCTION, supra note 41, at xxv, xxvii; see also MARY FRANCES BERRY,
MY FACE IS BLACK IS TRUE: CALLIE HOUSE AND THE STRUGGLE FOR EX-SLAVE REPARATIONS
3–4 (2005) (telling the story of Callie House, a formerly enslaved woman from Tennessee, who
organized emancipated African Americans to petition the federal government for pensions as repa-
rations for slavery).
377 See HEATHER ANDREA WILLIAMS, HELP ME TO FIND MY PEOPLE: THE AFRICAN
AMERICAN SEARCH FOR FAMILY LOST IN SLAVERY 1–3 (2012).
378 See, e.g., THOMAS HOLT, BLACK OVER WHITE: NEGRO POLITICAL LEADERSHIP IN
SOUTH CAROLINA DURING RECONSTRUCTION 1–5 (1977); CHARLES VINCENT, BLACK LEG-
ISLATORS IN LOUISIANA DURING RECONSTRUCTION, at xix–xxi (S. Ill. Univ. Press 2011)
(1976); Hannah-Jones, supra note 297.
379 See Hannah-Jones, supra note 297.
380 JONES, supra note 327, at 12.
381 Id.
The Reconstruction Constitution, however, was limited in numerous

crucial ways. Although Radical Republicans like Ashley, Stevens,
Sumner, and Wilson pushed to incorporate the abolition constitutional-
ism advanced by antislavery activists, they were forced to compromise
their ideals and accept more moderate versions of the Amendments in
order to achieve enough votes for enactment.382 For example, Sumner
introduced a Thirteenth Amendment that prohibited slavery without
exception, providing that “[e]verywhere within the limits of the United
States, and of each State or Territory thereof, all persons are equal before
the law, so that no person can hold another as a slave.”383 As I will
discuss in more detail below, however, the exception for punishment of
people convicted of crimes, which was contained in the enacted text,
supported new forms of racial subjugation and labor exploitation that
obliterated the Amendment’s abolitionist ideals.
Stevens reluctantly voted for the watered-down text of the
Fourteenth Amendment, passionately expressing his deep disappoint-
ment in its final wording, which departed dramatically from his aboli-
tionist vision:
In my youth, in my manhood, in my old age, I had fondly dreamed
that . . . no distinction would be tolerated in this purified Republic but what
arose from merit and conduct. This bright dream has vanished “like the
baseless fabric of a vision.” I find that we shall be obliged to be content
with patching up the worst portions of the ancient edifice, and leaving it,
in many of its parts, to be swept through by the tempests, the frosts, and
the storms of despotism.384
Stevens explained that he acquiesced in the agenda of his moderate col-
leagues because, living “among men and not among angels,” he had
failed to persuade them.385 “Mutual concession, therefore, is our only
resort, or mutual hostilities.”386 Senator James Grimes concurred: “It
is not exactly what any of us wanted; but we were each compelled to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
382 See MICHAEL LES BENEDICT, A COMPROMISE OF PRINCIPLE: CONGRESSIONAL
REPUBLICANS AND RECONSTRUCTION 1863–1869, at 14 (1974) (“[R]adical Republicans knew
that their conservative allies were not as committed as they to the racially egalitarian principles of
the Republican party, and they were continually frustrated in their attempts to win what they con-
ceived to be true security for the Union.”); Xi Wang, Black Suffrage and the Redefinition of
American Freedom, 1860–1870, 17 CARDOZO L. REV. 2153, 2191–92 (1996) (describing Bingham’s
decision to change the language of suffrage from a “right” to a “privilege,” id. at 2191, in order to
secure the votes necessary for the Fourteenth Amendment’s passage).
383 Mark A. Graber, Subtraction by Addition?: The Thirteenth and Fourteenth Amendments, 112
COLUM. L. REV. 1501, 1503 (2012) (quoting CONG. GLOBE, 38th Cong., 1st Sess. 521 (1864) (state-
ment of Sen. Charles Sumner)).
384 Id. at 1501–02 (alteration in original) (quoting CONG. GLOBE, 39th Cong., 1st Sess. 3148
(1866) (statement of Rep. Thaddeus Stevens)).
385 Id. at 1502 (quoting CONG. GLOBE, 39th Cong., 1st Sess. 3148 (statement of Rep. Thaddeus
Stevens)).
386 Id. (quoting CONG. GLOBE, 39th Cong., 1st Sess. 3148 (statement of Rep. Thaddeus
Stevens)).
surrender some of our individual preferences in order to secure

anything . . . .”387
Although the Thirteenth Amendment ended the Constitution’s pro-
tection of chattel slavery, it “did not resolve the issue of the newly freed
slaves’ political status.”388 The text itself, both in its guarantee of state
protection and in its grant of political power, fell short of providing the
necessary provisions to secure the rights of black people against political
terror.389 Nor did it ban specific means of black disempowerment, such
as voter-qualification tests, convict leasing, and peonage.390
Further, while the Reconstruction Amendments changed the racial
definition of citizenship that Chief Justice Taney relied on in denying all
black people — whether enslaved or free — equal status with white
people, they failed to accord black citizens equal political power.391 In
the racial order, black people remained members of a separate and infe-
rior race. White abolitionists themselves had differing views about the
implications of slavery’s end and black people’s citizenship.392 Even the
celebrated Stevens assured his fellow congressmen that equality in civil
rights “does not mean that a negro shall sit on the same seat or eat at
the same table with a white man.”393
No weakness in the Reconstruction Amendments is reviled more by
prison abolitionists than the Thirteenth Amendment’s exception for
“punishment for crime whereof the party shall have been duly
convicted.”394 This clause is commonly interpreted to mean that a crim-
inal conviction deprives individuals of protection against slavery and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
387 Id. (quoting Letter from James Grimes to Mrs. Grimes (Apr. 30, 1866), in WILLIAM SALTER,
THE LIFE OF JAMES W. GRIMES 292, 292 (1876)).
388 DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 41 (5th ed. 2004) [hereinafter BELL,
RACE, RACISM].
389 See U.S. CONST. amend. XIII; BELL, RACE, RACISM, supra note 388, at 41–42; Wolff, supra
note 181, at 1030 (noting Stevens “forcefully upbraided his peers for their failure to couple emanci-
pation with economic reform”).
390 See U.S. CONST. amend. XIII; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69–70
(1873) (failing to explicitly hold that the Thirteenth Amendment prohibits more subversive means
of oppression).
391 See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 419–23 (1857); see also BELL, RACE,
RACISM, supra note 388, at 42–43 (discussing the ineffectiveness of the Reconstruction
Amendments).
392 See Barnett, supra note 285, at 253–54 (comparing views of abolitionists regarding the mean-
ing of clauses of the Reconstruction Amendments).
393 FONER, RECONSTRUCTION, supra note 41, at 231 (quoting CONG. GLOBE, 39th Cong., 2d
Sess. 252 (1867) (statement of Rep. Thaddeus Stevens)); see also WILLIAM E. NELSON, THE
FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 50–63
(1988) (noting a lack of agreement on the meaning of the Fourteenth Amendment among its
framers).
394 Pope, supra note 286 (manuscript at 4–5) (quoting U.S. CONST. amend. XIII) (noting the
consensus among critics of the carceral state that the “Punishment Clause permits practices they
condemn as brutal and exploitative”).
involuntary servitude.395 Many prison abolitionists believe the crime

exception was deliberately added to permit the reenslavement of black
people by convicting them of crimes.396 As discussed in Part I, begin-
ning with prison chain gangs and convict leasing, the Punishment
Clause facilitated the expansion of prisons as a form of state subordina-
tion of black people and forced exploitation of black labor.397
Interpreting the Punishment Clause as negating slavery’s abolition,
however, neglects the explicit opposition by the Amendment’s
Republican drafters to such an “absurd construction,”398 which would
allow southern states to reenslave African Americans “‘[u]nder the
pretense’ of the Punishment Clause.”399 In a compelling analysis of
congressional debates surrounding the Amendment, legal historian
Professor James Gray Pope demonstrates that Republican members of
Congress vehemently opposed convict leasing and forced labor as a mis-
use of the Punishment Clause and thus a violation of the Thirteenth
Amendment — with words that sound strikingly similar to those of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
395 Id. (manuscript at 4); see also Goodwin, Thirteenth Amendment, supra note 174, at 922–32
(discussing the Punishment Clause’s preservation of forced penal labor); Howe, supra note 117, at
988 (arguing that the original public understanding of the Thirteenth Amendment was that the
Amendment permitted enslaving criminals).
396 See, e.g., BISSONETTE, supra note 18, at 215 (“With the Thirteenth Amendment, the U.S.
government restructured the institution of slavery: it went from being a privatized institution to a
nationalized one. Slavery was never abolished in the United States. ‘Ownership’ simply changed
hands.”); CHILDS, supra note 175, at 63–64; Beyond Prisons: An Interview with Laura Magnani,
THE ABOLITIONIST, Spring 2007, at 3, https://abolitionistpaper.files.wordpress.com/2011/01/
abolitionist-issue-6-spring-2007-english.pdf [https://perma.cc/ZVX6-GUXR]; Interview with
Robert King Wilkerson, THE ABOLITIONIST, Summer 2005, at 5, https://abolitionistpaper.files.
wordpress.com/2011/01/abolitionist-issue-2-summer-2005-english.pdf [https://perma.cc/AHQ4-
KC27] (“In part, the 13th [A]mendment states that slavery shouldn’t abound within the shores of
America unless one has been duly convicted of a crime. It tells me in one breath that slavery should
not exist, and in the next breath it says that it can if you are duly convicted of a crime.”); Jalil
Muntaqim, America Is a Prison Industrial Complex, THE ABOLITIONIST, Summer 2012, at 4,
https://abolitionistpaper.files.wordpress.com/2012/10/abolitionist-17-english.pdf [https://perma.cc/
23J9-ULJ8]; Edgar Pitts, Liberty vs Property, THE ABOLITIONIST, Fall 2007, at 15, https://
abolitionistpaper.files.wordpress.com/2011/01/abolitionist-issue-7-fall-2007-english.pdf [https://
perma.cc/UVV7-RTQW]; 13TH (Kandoo Films 2016); Profiles in Abolition, supra note 19; infra pp.
105–06.
397 See CHILDS, supra note 175, at 57–92; Howe, supra note 117, at 1008–09 (describing the rise
of convict leasing, prisons, and labor camps “immediately” after the Thirteenth Amendment’s pas-
sage, id. at 1009); see also supra pp. 29–33.
398 Pope, supra note 286 (manuscript at 14) (quoting CONG. GLOBE, 39th Cong., 1st Sess. 504
(1866) (statement of Rep. Jacob Howard)). But cf. Jennifer Mason McAward, Defining the Badges
and Incidents of Slavery, 14 U. PA. J. CONST. L. 561, 569 (2012) (“The definition of the ‘badges and
incidents of slavery’ proposed in this Article is sufficiently narrow that Congress’s Thirteenth
Amendment enforcement power may well have limited applicability today.”).
(statement of Rep. Thaddeus Stevens)). But see Howe, supra note 117, at 992–96 (arguing that the
original understanding of the Thirteenth Amendment contemplated slavery as a legitimate deter-
rent and sanction for crime).
prison abolitionists today.400 Representative Burton C. Cook of Illinois,

for example, decried the passage of vagrancy laws “which, under the
pretense of selling these men as vagrants, are calculated and intended
to reduce them to slavery again.”401
Pope argues that Republicans’ conception of the Thirteenth
Amendment as a “regime shift in constitutional law,” which not only
abolished slavery but also eliminated practices that denied “practical
freedom” and instituted a free labor ethos, meant that they “read the
Amendment’s prohibitory clause broadly and its exception narrowly.”402
The consensus among historians that the Thirteenth Amendment ap-
proved convict leasing, based on the dominant post-Reconstruction
reading,403 contradicts the views expressed by its framers and denies
the abolition constitutionalism that animated the Amendment’s
enactment.404
The debate over the Thirteenth Amendment leaves unanswered the
question of why its drafters included the Punishment Clause at all.
Professor Scott Howe, a criminal law scholar, argues that the
Republican congressmen were well aware of the plain meaning of the
text as an authorization to enslave people convicted of crimes and abuse
them in the same way enslaved people were abused prior to the Civil
War.405 Howe points out that there was little discussion of the
Punishment Clause language during the debate even after Sumner
vehemently objected to its inclusion and explicitly noted that “there is
an implication from those words that men may be enslaved as a punish-
ment of crimes whereof they shall have been duly convicted.”406 To
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
400 Compare Pope, supra note 286 (manuscript at 13–18), with sources cited supra note 396.
(statement of Rep. Burton C. Cook)); see also Ghali, supra note 170, at 627–28 (discussing
Representative John Kasson’s proposal to clarify the Thirteenth Amendment’s Punishment Clause
to stop the reenslavement of blacks).
402 Pope, supra note 286 (manuscript at 9); see also Ghali, supra note 170, at 629, 631, 642 (dis-
cussing the original meaning of the Punishment Clause as ambiguous, and arguing that the clause
can be interpreted narrowly and does not restrict all Thirteenth Amendment claims by prisoners);
George Rutherglen, Essay, State Action, Private Action, and the Thirteenth Amendment, 94 VA. L.
REV. 1367, 1376–92 (2008) (discussing debates over the Punishment Clause).
403 See, e.g., BLACKMON, supra note 167, at 53; MICHAEL J. KLARMAN, FROM JIM CROW TO
CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 72 (2004)
(stating that “convict labor and convict lease were presumably permissible” due to the
Thirteenth Amendment’s “punishment for crime” exception); LICHTENSTEIN, supra note 175, at
43; REBECCA M. MCLENNAN, THE CRISIS OF IMPRISONMENT: PROTEST, POLITICS, AND
THE MAKING OF THE AMERICAN PENAL STATE, 1776–1941, at 8–9 (2008).
404 See ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREE-
DOM: A LEGAL HISTORY 17–18 (2004); Pope, supra note 286 (manuscript at 8–9).
405 See Howe, supra note 117, at 995–96.
406 Id. at 995 (quoting CONG. GLOBE, 38th Cong., 1st Sess. 1487–88 (1864) (statement of Sen.
Charles Sumner)).
Howe, Congress’s silence regarding Sumner’s objection and the adop-

tion of the clause with the objectionable language meant “there was
clarity that it allowed slavery.”407
In debates surrounding the Thirteenth and Fourteenth Amendments,
however, the Republican congressmen directly stated their aim to pro-
tect emancipated blacks from white supremacist violence and labor
exploitation.408 Moreover, the congressional Republicans explicitly op-
posed convict leasing and took action to stop it by passing the Civil
Rights Act of 1866, providing that black citizens would be subject to the
same “punishment, pains, and penalties” as white citizens.409
Thus, both the abolition constitutionalism that inspired the
Thirteenth Amendment and the words and actions of its radical framers
suggest we should read the Punishment Clause quite narrowly.410
Antislavery activists and Republicans in the Thirty-Ninth Congress ve-
hemently objected to interpreting the clause as a license for convict leas-
ing.411 The historical evidence suggests they left in the Punishment
Clause to permit continuation of the custom of sentencing people con-
victed of crimes to hard labor and did not anticipate criminal
punishment would become a mechanism of reenslavement.412 Moreo-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
407 Id. at 996.
408 CONG. GLOBE, 39th Cong., 1st Sess. 319 (1866) (statement of Rep. Lyman Trumbull); id. at
903 (statement of Rep. Burton C. Cook); see also Steven J. Heyman, The First Duty of Government:
Protection, Liberty, and the Fourteenth Amendment, 41 DUKE L.J. 507, 546 (1991) (arguing that
the Thirty-Ninth Congress debates demonstrate that “[a] central purpose of the Fourteenth
Amendment and Reconstruction legislation was to establish the right to protection as a part of the
federal Constitution and laws, and thus to require the states to protect the fundamental rights of all
persons, black as well as white”); Robin West, Toward an Abolitionist Interpretation of the
Fourteenth Amendment, 94 W. VA. L. REV. 111, 131–32 (1991) (citing TENBROEK, supra note 288,
at 116–34) (arguing that the Fourteenth Amendment incorporates abolitionists’ view that the state
must provide equal protection against private violence and private violation).
409 Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27; see Pope, supra note 286 (manuscript at
13–19); see also Heyman, supra note 408, at 551–52 (discussing how Republicans understood “civil
rights” under the Civil Rights Act of 1866 to encompass the right of personal security and the right
of personal liberty, id. at 552); Wolff, supra note 181, at 983 (noting that the Reconstruction Congress
“outlawed peonage and passed criminal statutes under the authority of the Thirteenth Amendment
to enforce that proscription” (citing 42 U.S.C. § 1994 (1994); Peonage Act of 1867, ch. 187, § 1, 14
Stat. 546 (1867) (codified at 18 U.S.C § 1581 (2000)))).
410 See Goodwin, Thirteenth Amendment, supra note 174, at 978 (noting that “as a textual matter,
the Thirteenth Amendment’s Punishment Clause does not permit prison slavery, at least in the way
it currently operates, because the clause protects slavery only as ‘punishment for crime,’ which, if
narrowly defined, is meted out by statute or sentencing judge” (citing Wilson v. Seiter, 501 U.S. 294,
300, 302–03 (1991))); see also Ghali, supra note 170, at 625, 641 (arguing that the Punishment Clause
does not categorically exempt prisoners from Thirteenth Amendment protections; rather, “punish-
ment only includes one’s prison sentence,” id. at 641).
411 See supra notes 398–401 and accompanying text.
412 See Raja Raghunath, A Promise the Nation Cannot Keep: What Prevents the Application of
the Thirteenth Amendment in Prison?, 18 WM. & MARY BILL RTS. J. 395, 398 (2009) (arguing that
consistency with Fifth and Eighth Amendment jurisprudence requires interpretation of the
ver, interpreting the clause today as license to convert slavery into im-
prisonment violates the aim of nineteenth-century abolitionists to free
enslaved people. Abolition constitutionalism does not permit a reading
of the Thirteenth Amendment that facilitates the very enslavement the
Amendment aimed to abolish. Nevertheless, abolitionists’ efforts were
quashed by white supremacist terror that wiped out emancipated
blacks’ economic and political foothold, leaving them at the mercy of
the emerging carceral regime.413 Although it was not intended to pro-
vide for convict leasing, the Thirteenth Amendment provided insuffi-
cient protection to black citizens from being exploited, tortured, and
killed in the system of bondage that replaced chattel slavery.
Antislavery rebellion, resistance, and activism succeeded in forcing
radical changes to the Constitution. Influenced heavily by the abolition
movement and its constitutionalism, Congress passed amendments that
ended chattel slavery and extended citizenship to freed blacks. Yet
activists like Frederick Douglass failed to achieve the ideals of freedom
and democracy envisioned by the abolition constitutionalism they forged
in antislavery struggle. Does this mean abolition constitutionalism is
futile? It is important to remember that Douglass’s reading of the
Constitution did not depend on its framers’ intent or the dominant pub-
lic or judicial interpretation of its text. Abolition constitutionalism was
not defeated by the Thirteenth Amendment’s Punishment Clause, how-
ever Congress intended its meaning, or by white supremacist terror.
Instead, the antislavery movement used abolition constitutionalism as a
tool to press its claims and a guide to envision the free and democratic
society it struggled for the nation to become.
Antislavery activists’ abolition constitutionalism suggests a useful
methodology for interpreting the Reconstruction Amendments today.
First, this interpretative methodology embraces the Reconstruction
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Thirteenth Amendment to prohibit involuntary servitude for all but “those inmates who . . . have
been . . . sentenced” to forced labor); Ryan S. Marion, Note, Prisoners for Sale: Making the
Thirteenth Amendment Case Against State Private Prison Contracts, 18 WM. & MARY BILL RTS.
J. 213, 215 (2009) (arguing that the current “system of private, unpaid use of labor [in private pris-
ons] too closely resembles the slave system that the Thirteenth Amendment sought to abolish” to be
constitutionally permissible, despite the Amendment’s exception for criminal punishments). At the
time the Thirteenth Amendment was drafted, sentencing people convicted of crimes to prison and
hard labor was considered more humane than prior corporal punishments. As today’s prison abo-
litionists have argued, however, prisons themselves are inhumane. See GILMORE, GOLDEN
GULAG, supra note 17, at 11 (“Prisons both depersonalized social control, so that it could be bu-
reaucratically managed across time and space, and satisfied the demands of reformers who largely
prevailed against bodily punishment, which nevertheless endures in the death penalty and many
torturous conditions of confinement.”).
413 See generally BLACKMON, supra note 167; FONER, RECONSTRUCTION, supra note 41;
HALEY, supra note 167, at 58–118; LEFLOURIA, supra note 167; LICHTENSTEIN, supra note 175;
OSHINSKY, supra note 167, at 55–106.
Amendments’ constitutional imperatives to end enslaving systems, pro-

vide equal protection against state and private violence, and install full
citizenship.414 The antebellum abolitionists’ aim was to eradicate com-
pletely the institution of racial slavery, which made black people the
property of others who had the legal power to control their lives and
exploit their labor. Second, an abolitionist methodology identifies sys-
temic oppression by evaluating modern institutions’ antecedents in slav-
ery and other freedom-denying systems, as well as their current repres-
sive impact. Third, it seeks to effect the structural changes required to
achieve the Amendments’ freedom and democracy aims. Abolishing
slavery meant guaranteeing everyone’s human right to freedom — to be
free from domination by state or private masters, to be able to control
one’s own life and labor. Abolishing slavery also required equal protec-
tion from private or state violence that threatened to force people into
subjugated statuses. Finally, abolishing slavery required granting to for-
merly enslaved people the full ability to participate as citizens in the
nation’s reconstructed democracy. With this methodology in mind, I
turn to the Supreme Court’s interpretation of the Reconstruction
Amendments.
D. The Court’s Anti-Abolition Jurisprudence
Every advance toward black liberation since the Civil War ended
has been met with formidable political and judicial backlash.415 Critical
race scholar Professor Derrick Bell observed that the Reconstruction
Era’s constitutional compromise with respect to black people’s freedom
reverberates through contemporary adjudications of civil rights viola-
tions “in which the measure of relief is determined less by the character
of harm suffered by blacks than the degree of disadvantage the relief
sought will impose on whites.”416 Bell’s writings, which within legal
scholarship are some of the most piercing critiques of constitutional hy-
pocrisy, became increasingly pessimistic about the chances for racial jus-
tice in America.417 He pointed to white citizens’ persistent refusal to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
414 See Alexander Tsesis, Furthering American Freedom: Civil Rights & the Thirteenth
Amendment, 45 B.C. L. REV. 307, 307 (2004) [hereinafter Tsesis, Furthering American Freedom]
(describing the Thirteenth Amendment as “a source of sweeping constitutional power for enacting
federal civil rights legislation”); see also Akhil Reed Amar, The Supreme Court, 1991 Term —
Comment: The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124,
155–56 (1992) (discussing the broad interpretation of the Reconstruction Amendments and noting
that the Thirteenth Amendment “speaks directly to private, as well as governmental, misconduct,”
id. at 155); West, supra note 408.
415 See ANDERSON, supra note 258, at 4–6.
416 BELL, RACE, RACISM, supra note 388, at 13.
417 See, e.g., id. at 61–62; see also DERRICK BELL, FACES AT THE BOTTOM OF THE WELL:
THE PERMANENCE OF RACISM, at ix–xii (1992); DERRICK BELL, SILENT COVENANTS:
BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM
abdicate their racial domination at the sacrifice of black people’s

rights.418 Despite decades devoted to civil rights protest and litigation
based on constitutional guarantees, the majority of black Americans saw
their economic and political conditions worsen as the Court reinforced
institutionalized forms of subordination.419 In the end, Bell proposed
that we approach the Constitution with “Racial Realism,” based on the
realization that “Black people will never gain full equality in this
country.”420
How can we reconcile Bell’s sobering assessment of constitutional
law as inevitably denying freedom to black people with an abolition
constitutionalism that envisions their future freedom? Some guidance
might be found in the thinking of an earlier abolitionist. Similarly to
Bell, Frederick Douglass acknowledged the proslavery intent of both the
white framers who drafted the Constitution and the white judges who
interpreted it.421 Douglass was also aware of white southerners’ iron-
clad resolve to preserve the Slave Power and believed it would take
armed struggle to overcome it.422 At the same time, Douglass refused
to be bound by an understanding of the Constitution that supported
slavery.423 He recognized that court-made doctrines that maintained
white supremacy were not constitutionally mandated and could be
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
195–96 (2004); Derrick Bell, 1989 Sanford E. Sarasohn Memorial Lecture, After We’re Gone: Pru-
dent Speculations on America in a Post-Racial Epoch, 34 ST. LOUIS U. L.J. 393, 402 (1990); Derrick
A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93
HARV. L. REV. 518, 518–19, 523–25 (1980); Derrick Bell, Racial Realism, 24 CONN. L. REV. 363,
363 (1992) [hereinafter Bell, Racial Realism]; Derrick Bell, The Supreme Court, 1984 Term —
Foreword: The Civil Rights Chronicles, 99 HARV. L. REV. 4, 4 (1985).
418 See BELL, RACE, RACISM, supra note 388, at 61 (describing America as a state where “power-
based majoritarianism is the ongoing societal stabilizing fact” and noting that “most white citizens
choose not to grant the citizens of color their full rights”).
419 See, e.g., Diana R. Donahoe, Not-So-Great Expectations: Implicit Racial Bias in the Supreme
Court’s Consent to Search Doctrine, 55 AM. CRIM. L. REV. 619, 621 (2018); Frank R. Parker, The
Damaging Consequences of the Rehnquist Court’s Commitment to Color-Blindness Versus Racial
Justice, 45 AM. U. L. REV. 763, 769–72 (1996) (discussing Supreme Court affirmative action and
redistricting decisions that have negative impacts on black Americans’ economic endeavors and
political power); Ta-Nehisi Coates, The Case for Reparations, THE ATLANTIC (June 2014),
https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631 [https://
perma.cc/K2NH-BJTG] (noting that “[t]he Supreme Court seems to share [a] sentiment [of animos-
ity toward racial justice jurisprudence]” and that “[t]he past two decades have witnessed a rollback
of the progressive legislation of the 1960s”).
420 Bell, Racial Realism, supra note 417, at 373.
421 See Moses, supra note 338, at 73–74; see also supra pp. 58–61.
422 See supra p. 61; see also Leslie Friedman Goldstein, Violence as an Instrument for Social
Change: The Views of Frederick Douglass (1817–1895), 61 J. NEGRO HIST. 61, 66 (1976) (“By 1857,
Douglass . . . accepted and hoped for a slave revolt in the South.”).
423 See Moses, supra note 338, at 83.
overturned by a counter-constitutionalism that affirmed freedom and

democracy.424
Racial Realism counsels against any faith in the moral power of the
Constitution alone to dismantle the prison industrial complex.425 Yet
this conclusion need not preclude activists from imagining an alternative
constitutionalism as part of a movement to abolish prisons. It is the
commitment to building a radically different society, one that has elim-
inated carceral systems and the racial capitalist order they support, that
makes an abolition constitutionalism realistic. This mash-up of Racial
Realism and abolitionist vision, along with its interpretative methodol-
ogy, forms a framework for evaluating the Court’s anti-abolition
jurisprudence.
1. Constitutional Counterrevolution. — After the Civil War, the U.S.
Supreme Court took the side of the anti-abolitionists.426 In doing so, it
contributed to a “constitutional counterrevolution”427 that robbed
African Americans of their nascent political gains, reinstalled white su-
premacist rule, and reinforced the racial capitalist structure of labor ex-
ploitation.428 The Court adopted the reading of the Reconstruction
Amendments espoused by Democrats who supported the violent termi-
nation of radical Reconstruction rather than the meaning expressed by
the Republicans who drafted the Amendments.429 In a series of
decisions, beginning with the Slaughter-House Cases430 in 1873, the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
424 See id. at 83–85 (describing Douglass’s understanding that textualism was “two-faced; it could
be used either to support or to undermine” the proslavery reading of the Constitution, id. at 84, and
noting his “realization that the pro-slavery interpretation of the Constitution was morally and ide-
ologically bankrupt,” id. at 85); see also supra pp. 58–59.
425 See Bell, Racial Realism, supra note 417, at 376 (suggesting that Racial Realists effectively
challenged the premises that, after the Thirteenth and Fourteenth Amendments, the Constitution
was intended to guarantee equal rights to black people, and that belief in the Constitution was key
to achieving civil rights).
426 See LOGAN, supra note 41, at 105 (observing that “[p]ractically all the relevant decisions”
made by the Supreme Court in the late 1800s limited the rights of black people).
427 Foner, Strange Career, supra note 287, at 2008 (describing the “effective nullification” of the
Fourteenth and Fifteenth Amendments as demonstrated by “electoral campaigns, political treatises,
and . . . court decisions”).
428 See id. at 2007–08.
429 See Brandwein, supra note 174, at 316 (arguing that the Supreme Court adopted parts of the
Northern Democratic narrative regarding the Civil War and Reconstruction Amendments in an
1873 case); Tsesis, Civil Rights Approach, supra note 288, at 1822 (“[T]he Supreme Court found a
way of interpreting the [Constitution] according to the views of [opponents to abolitionist forces] in
the Thirty-Eighth Congress.”); see also Eric Foner, The Supreme Court and the History of
Reconstruction — And Vice-Versa, 112 COLUM. L. REV. 1585, 1602–03 (2012) (observing that re-
cent Supreme Court decisions have reflected a belief that “the judges gutting Reconstruction had
more insight into the purposes of the laws and Amendments of Reconstruction than those who
actually enacted them”); Pope, supra note 286 (manuscript at 27–28) (arguing that the Supreme
Court sometimes refers to post-Reconstruction judicial opinions, rather than legislative actions at
the time of the passage of the Reconstruction Amendments, to interpret the Amendments).
430 83 U.S. (16 Wall.) 36 (1873).
Court developed an anti-abolition jurisprudence that preserved white

capitalist domination and shaped constitutional law for the next cen-
tury.431 The Justices interpreted the Reconstruction Amendments
narrowly to bar white state majorities from passing explicit slave laws
but left their power to restrict black people’s freedom untouched.432
The Court also “crippled” the federal government’s power to enforce
the Reconstruction Amendments to protect blacks from white terror,
speeding the collapse of Reconstruction in the South.433 In United
States v. Cruikshank,434 the Court overturned convictions on federal
charges of three white men who participated in the Colfax Massacre, a
mob attack on a Louisiana courthouse resulting in the murders of dozens
of black citizens.435 The Supreme Court held that the indictments,
brought under the Enforcement Act of 1870,436 failed to allege the
defendants’ conduct violated the Fourteenth Amendment because the
conduct was performed by private individuals and not state actors.437
“The [F]ourteenth [A]mendment prohibits a State from depriving any
person of life, liberty, or property, without due process of law; but this
adds nothing to the rights of one citizen as against another,” the Court
concluded.438 By requiring state action, the Court left southern blacks
without federal protection from whites who sought to strip them of their
citizenship rights through violent intimidation.439 The Court’s
definition of unconstitutional state action was diametrically opposed to
the Fourteenth Amendment’s aim — to give equal protection to citizens
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
431 See id. at 67–82; FRANK J. SCATURRO, THE SUPREME COURT’S RETREAT FROM
RECONSTRUCTION 20–63, 68–133 (2000) (documenting the Court’s decisions, beginning in the
1870s, that helped drive a retreat from Reconstruction); Brandwein, supra note 174, at 316 (“In the
Slaughter-House Cases (1873), the Supreme Court adopted crucial elements of the Northern
Democratic narrative, even though the Democrats were the legislative losers.”). See generally Plessy
v. Ferguson, 163 U.S. 537, 551–52 (1896) (upholding state statute that allowed race-based segrega-
tion), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954); Civil Rights Cases, 109 U.S. 3, 25–
26 (1883) (striking down provisions of the Civil Rights Act of 1875 under the Reconstruction
Amendments and holding that the federal government cannot regulate private action); Pace v.
Alabama, 106 U.S. 583, 585 (1883) (upholding state antimiscegenation statute).
432 See sources cited supra note 431.
433 SCATURRO, supra note 431, at 17 (arguing that the Court’s decisions in the 1870s “directly
undermined federal efforts to protect blacks during Reconstruction”).
434 92 U.S. 542 (1876).
435 See Wilson R. Huhn, The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitu-
tional Interpretation, 42 AKRON L. REV. 1051, 1071–72 (2009) (briefly summarizing the facts of
Cruikshank); see also LANE, supra note 41, at 90–109 (describing the Colfax Massacre).
436 Ch. 14, 16 Stat. 140; see Cruikshank, 92 U.S. at 560.
437 Id. at 554 (holding that the Fourteenth Amendment “simply furnishes an additional guarantee
against any encroachment by the States upon the fundamental rights which belong to every
citizen”).
438 Id.
439 Huhn, supra note 435, at 1077 (arguing that the Court’s decision in Cruikshank prevented the
federal government from protecting the rights of black citizens and “signaled open season on blacks
and other racial minorities”).
against private violence that forced them into subjugation.440 As

Professor Robin West points out, “[t]he ‘state action,’ . . . which is the
object of the Amendment, is the breach of an affirmative duty to protect
the rights of citizens to be free, minimally, of the subordinating, enslav-
ing violence of other citizens.”441 Instead, the Court interpreted the
Fourteenth Amendment as primarily shielding businesses from state reg-
ulation of contractual labor relations through “liberty of contract,”
rather than shielding black people from exploitation and discrimina-
tion.442 In this way, the Justices converted the free labor aspiration of
the Reconstruction Amendments into a shield for white capitalists to
exploit the labor of a subjugated racial caste. Thus, the Court created
a state action doctrine that permitted the government to shirk its
Fourteenth Amendment duty to protect citizens equally, leaving eman-
cipated blacks and, subsequently, other marginalized people vulnerable
to the violent obliteration of their freedom and reinforcement of an un-
equal power structure.
2. The Court’s Current Anti-Abolition Doctrines. — A dominant
view of constitutional progress holds that the Civil Rights Era and the
Court’s landmark decision in Brown v. Board of Education443 ushered
in a new constitutional regime.444 The abolitionist struggle, however,
remains unfinished. Beginning with Bell’s Racial Realism, critical race
scholars have soundly demolished the victory narrative by exposing the
embedded nature of racial inequality in legal institutions and the Court’s
complicity since Brown in preserving that inequality.445 Racism is
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
440 See supra p. 69.
441 West, supra note 408, at 143 (describing abolitionist interpretation of the Fourteenth
Amendment state action requirement); see also Heyman, supra note 408, at 546 (noting that con-
gressional debates over the Fourteenth Amendment suggest that “the constitutional right to protec-
tion was understood to include protection against private violence”).
442 See Foner, Strange Career, supra note 287, at 2007 (noting that by the late 1800s, the “enduring
meaning” of the Fourteenth Amendment was perceived as contractual freedom rather than equal
treatment of blacks).
443 347 U.S. 483 (1954).
444 See, e.g., 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION
316–20 (2014) (arguing that Brown “provided a constitutional framework” for later civil rights leg-
islation, id. at 316, and that those statutes were “public vindication” of the Court’s decision in
Brown, id. at 317); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD
OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY 713 (2d ed. 2004) (arguing
that the Court’s opinion in Brown “represented nothing short of a reconsecration of American
ideals”).
445 See, e.g., Angela Harris, Foreword to RICHARD DELGADO & JEAN STEFANCIC, CRITICAL
RACE THEORY, at xvii–xxi (2001) (describing origins of critical race scholarship and noting that
“racism is part of the structure of legal institutions” in the United States, id. at xx); Cheryl I. Harris,
Whiteness as Property, 106 HARV. L. REV. 1707, 1756–57 (1993) [hereinafter Harris, Whiteness as
Property] (arguing that Brown left a “mixed legacy,” id. at 1757, since the Court failed to articulate
a government obligation to eliminate inequality in resource allocation in the public or private do-
main and thus left white privilege intact). See generally CRITICAL RACE THEORY: THE KEY
WRITINGS THAT FORMED THE MOVEMENT (Kimberlé Crenshaw et al. eds., 1995) (noting that
“institutionalized.”446 Centuries of official white supremacy produced

discriminatory laws, policies, and practices that privilege white people
and disadvantage people of color.447 Colonialism, slavery, and Jim Crow
built legal structures that produce unequal outcomes without the need
for race-specific laws or prejudiced decisions of individual state
agents.448 Residential segregation, for example, structures the lives of
most black people to make them more vulnerable to surveillance, pro-
filing, and punishment by government agents.449 But the Court has
failed to account for the systemic forms of racism that persist despite the
gains of the civil rights movement.450 Indeed, the Court’s jurisprudence
has been anti-abolitionist. Three of the Court’s key anti-abolition doc-
trines are especially relevant to upholding the carceral punishment sys-
tem: colorblindness, the discriminatory purpose requirement, and fear
of too much justice.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
critical race theorists “have, for the first time, examined the entire edif[i]ce of contemporary legal
thought and doctrine from the viewpoint of law’s role in the construction and maintenance of social
domination and subordination,” id. at xi).
446 EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS: COLOR-BLIND RACISM AND
THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITED STATES 3 (2003). See generally
id. (arguing that racial inequality continues to exist in the United States despite claims that race is
no longer relevant); KWAME TURE (formerly known as STOKELY CARMICHAEL) & CHARLES V.
HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 4 (1967) (describing
institutional racism as “less overt [and] far more subtle” than individual racism and “originat[ing]
in the operation of established and respected forces in the society”).
447 See, e.g., CAROL ANDERSON, ONE PERSON, NO VOTE: HOW VOTER SUPPRESSION IS
DESTROYING OUR DEMOCRACY (2018) (describing the history of black disenfranchisement); IRA
KATZNELSON, WHEN AFFIRMATIVE ACTION WAS WHITE: AN UNTOLD HISTORY OF
RACIAL INEQUALITY IN TWENTIETH-CENTURY AMERICA, at x (2005); RICHARD
ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN HISTORY OF HOW OUR GOVERNMENT
SEGREGATED AMERICA vii–viii (2017) (explaining how U.S. government policies explicitly segre-
gated major cities in the United States for much of the twentieth century); Lee, supra note 370
(describing how the Civil War and subsequent policies of segregation and exclusion drove disparity
in wealth between white and black Americans).
448 See DARIA ROITHMAYR, REPRODUCING RACISM: HOW EVERYDAY CHOICES LOCK IN
WHITE ADVANTAGE 1–11 (2014).
449 See Gregory S. Parks et al., Complex Civil Rights Organizations: Alpha Kappa Alpha Sorority,
an Exemplar, 6 ALA. C.R. & C.L.L. REV. 125, 163 (2014) (“[N]eighborhood segregation leads to the
profiling and criminalization of Blacks.”); see also Coates, supra note 419 (describing how racist
housing policies and business practices drove segregation and made black communities more vul-
nerable to predatory loans).
450 See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and
Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1380 (1988) (noting that “equal
opportunity mythology” contributes to “a rationalization for racial oppression” that “mak[es] it dif-
ficult for whites to see the Black situation as illegitimate or unnecessary”); Alan David Freeman,
Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of
Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1050 (1978) (“[A]s surely as the law has outlawed
racial discrimination, it has affirmed that Black Americans can be without jobs, have their children
in all-black, poorly funded schools, have no opportunities for decent housing, and have very little
political power, [all] without any violation of antidiscrimination law.”).
(a) Colorblindness. — Colorblindness is a conservative strategy that

shields white privilege through a rationalization that appears race-
neutral on its face.451 It emerged after the civil rights movement for-
mally ended Jim Crow in the South and de jure segregation in the
North.452 In response, “[a new] white backlash movement intent on
crushing black empowerment and preserving white dominance latched
on to the concept of colorblindness as an ideological tool of retrench-
ment.”453 As sociologist Eduardo Bonilla-Silva notes in his classic
Racism Without Racists, “[m]uch as Jim Crow racism served as the glue
for defending a brutal and overt system of racial oppression in the pre–
Civil Rights era, color-blind racism serves today as the ideological
armor for a covert and institutionalized system in the post–Civil Rights
era.”454 Colorblind theory argues that because society has conquered
racism and people of color and white people have full equality, social
policies should not take account of race.455
Over the last several decades, the majority on the Supreme Court
came to embrace a colorblind political ideology.456 Instead of inquiring
whether a state’s policy supports white supremacy, as it did in Loving v.
Virginia457 to strike down antimiscegenation laws,458 the Court has ap-
plied strict scrutiny to invalidate race-based government efforts aimed
at eliminating the vestiges of slavery and Jim Crow.459 A series of Court
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
451 See, e.g., ALEXANDER, supra note 52, at 2 (“In the era of colorblindness . . . [r]ather than rely
on race, we use our criminal justice system to label people of color ‘criminals’ and then engage in
all the practices we supposedly left behind.”).
452 BONILLA-SILVA, supra note 446, at 3; MICHAEL K. BROWN ET AL., WHITEWASHING
RACE: THE MYTH OF A COLOR-BLIND SOCIETY 1–2 (2003); KEEANGA-YAMAHTTA TAYLOR,
FROM #BLACKLIVESMATTER TO BLACK LIBERATION 51–61 (2016).
453 Dorothy E. Roberts, Loving v. Virginia as a Civil Rights Decision, 59 N.Y.L. SCH. L. REV.
175, 204 (2014–2015); see TAYLOR, supra note 452, at 51–61.
454 BONILLA-SILVA, supra note 446, at 3.
455 See id. at 1–2.
456 Ian F. Haney López, Is the “Post” in Post-Racial the “Blind” in Colorblind?, 32 CARDOZO
L. REV. 807, 811 (2011); see also IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL
CONSTRUCTION OF RACE 177–78 (1996) (analyzing the cases in which the Supreme Court has
adopted a colorblind approach); OSAGIE K. OBASOGIE, BLINDED BY SIGHT: SEEING RACE
THROUGH THE EYES OF THE BLIND 150–55 (2014); R. Richard Banks, Race-Based Suspect Se-
lection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA L. REV. 1075, 1120
(2001) (arguing that there is “a troubling asymmetry latent in current equal protection doctrine”
because “the Court has recently and repeatedly proclaimed the importance of colorblind equal pro-
tection standards in employment, education, and contracting,” but has not “appl[ied] those stand-
ards to policing and criminal justice”); Gotanda, supra note 101, at 2–3. See generally SEEING
RACE AGAIN: COUNTERING COLORBLINDNESS ACROSS THE DISCIPLINES (Kimberlé
Williams Crenshaw et al. eds., 2019) (exploring the harmful effects of colorblind ideologies in the
law and in other disciplines around the world).
457 388 U.S. 1 (1967).
458 Id. at 6, 11–12 (holding that Virginia’s Racial Integrity Act violated the Fourteenth
Amendment because antimiscegenation originated as “an incident to slavery,” id. at 6, and was
“designed to maintain [w]hite [s]upremacy,” id. at 11).
459 See cases cited infra notes 460–462.
decisions struck down race-conscious measures to desegregate

schools,460 implement affirmative action programs,461 and enforce
voting rights462 as violations of the Fourteenth Amendment. Justice
Thomas has articulated the colorblind perspective, which equates
official Jim Crow segregation with state efforts to end its legacy. In
Adarand Constructors, Inc. v. Peña,463 concurring with the majority’s
holding that a government incentive program to diversify federal con-
tracts was subject to strict scrutiny,464 Justice Thomas described a
“‘moral [and] constitutional equivalence’ between laws designed to
subjugate a race and those that distribute benefits on the basis of race
in order to foster some current notion of equality.”465 He concluded that
“[i]n each instance, it is racial discrimination, plain and simple.”466 A
decade later, in a 5-4 decision striking down voluntary plans to desegre-
gate elementary schools in Seattle, Washington, and Jefferson County,
Kentucky, the Court reiterated the position that the Fourteenth
Amendment requires the government to be colorblind by paying no
attention to race.467 “The way to stop discrimination on the basis of
race is to stop discriminating on the basis of race,” Chief Justice Roberts
declared.468
According to this view, both white supremacist and antisegregation-
ist racial classifications must be subject to strict scrutiny because of the
equally inherent invidiousness of both forms of state action and the im-
portance of the Court’s consistency in addressing them. In addition, the
Court’s scrutiny is based on an assumption that the problem the Equal
Protection Clause is concerned with is state attention to race rather than
state support for racism.469 Based on this flawed reasoning, the Court
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
460 See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747–48
(2007) (plurality opinion).
461 See, e.g., Gratz v. Bollinger, 539 U.S. 244, 270, 275 (2003) (finding that whether racial classi-
fications are subject to strict scrutiny under the Equal Protection Clause “is not dependent on the
race of those burdened or benefited by a particular classification,” id. at 270 (quoting Adarand
Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995))); City of Richmond v. J.A. Croson Co., 488 U.S.
469, 511 (1989) (holding city’s minority set-aside program unconstitutional); Wygant v. Jackson Bd.
of Educ., 476 U.S. 267, 284 (1986) (plurality opinion); Regents of the Univ. of Cal. v. Bakke, 438
U.S. 265, 319–20 (1978) (opinion of Powell, J.).
462 See, e.g., Miller v. Johnson, 515 U.S. 900, 927–28 (1995); Shaw v. Reno, 509 U.S. 630, 649 (1993).
463 515 U.S. 200.
464 Id. at 237–39.
465 Id. at 240 (Thomas, J., concurring in part and concurring in the judgment) (citation omitted)
(quoting id. at 243 (Stevens, J., dissenting) (alteration in original)).
466 Id. at 241.
467 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747–48 (2007) (plu-
rality opinion); see also id. at 758 (Thomas, J., concurring) (“We have made it unusually clear that
strict scrutiny applies to every racial classification.”).
468 Id. at 748 (plurality opinion).
469 Id. at 736 (“The distinction between segregation by state action and racial imbalance caused
by other factors has been central to our jurisprudence in this area for generations.”).
concludes that the proper way to enforce the Fourteenth Amendment is

to subject any racial classification by the government to strict scrutiny,
regardless of the objective — that is, that the state should remain color-
blind.470 By appealing to formal racial equality, the Justices issue
rulings that appear to be neutral and fair when they actually not only
ignore the material harms inflicted by systems that are structured by
white supremacy, but also shield those systems from efforts to dismantle
them. The colorblind approach to the Fourteenth Amendment pro-
foundly contravenes the abolitionist meaning that animated the
Amendment’s enactment. The antislavery activists who inspired the
Equal Protection Clause affirmatively sought to eradicate the Slave
Power — the system of chattel slavery and the private and public struc-
tures that maintained it.471 It is inconsistent with the abolitionist intent
of the Fourteenth Amendment to equate efforts to end white supremacy
with efforts to preserve white supremacy.
Moreover, by equating “invidious” and “benign” racial classifica-
tions,472 the Court badly misconstrues the relevance of racial categories
to institutionalized racism. Racial categories were invented to construct
and maintain a white supremacist regime built on racial slavery and
capitalism, and those categories continue to help govern systems in
which racism has become embedded.473 It is how racial categories are
used — whether to support racism or contest it — that matters to their
political significance. Colorblind logic only makes sense in an alternate
reality where the history of racialized slavery, the structures that were
put in place after the Civil War to reinstate white rule, and the persis-
tence of institutionalized racism since Reconstruction never happened.
As Justice Ginsburg noted, dissenting in the affirmative action case
Gratz v. Bollinger474:
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
470 Id. at 743 (“Simply because the school districts may seek a worthy goal does not mean they
are free to discriminate on the basis of race to achieve it, or that their racial classifications should
be subject to less exacting scrutiny.”).
471 See Jamal Greene, Fourteenth Amendment Originalism, 71 MD. L. REV. 978, 988 (2012) (ar-
guing that Justice Scalia’s and Justice Thomas’s interpretations of the Equal Protection Clause to
require colorblindness neglect the original understanding of the Fourteenth Amendment); West,
supra note 408, at 132 (arguing that abolitionists intended the Fourteenth Amendment “to abolish
not only slavery per se, but also the ‘dual sovereignty’ . . . engendered by a state’s refusal to grant
to one group of its citizens protection of the law against private violence, economic isolation, and
violation”) (footnote omitted); see also supra p. 60.
472 See Parents Involved, 551 U.S. at 758 (Thomas, J., concurring).
473 See ROBERTS, FATAL INVENTION, supra note 292, at 7–12, 309; see also IBRAM X. KENDI,
STAMPED FROM THE BEGINNING: THE DEFINITIVE HISTORY OF RACIST IDEAS IN
AMERICA (2016) (discussing the history of racist ideology that helped support slavery and later racist
systems).
474 539 U.S. 244 (2003).
“[T]o say that two centuries of struggle for the most basic of civil rights
have been mostly about freedom from racial categorization rather than free-
dom from racial oppressio[n] is to trivialize the lives and deaths of those
who have suffered under racism. To pretend . . . that the issue presented in
[Bakke] was the same issue in [Brown] is to pretend that history never hap-
pened and that the present doesn’t exist.”475
Colorblindness depends on the delusion of baseline racial equality, mak-
ing any distinction on the basis of race inherently inequitable.
The Court has extended its anti-abolitionist colorblind approach be-
yond school desegregation, affirmative action, and voting rights to
ignore the role of policing in subjugating black communities.476 Despite
nationwide protests against police violence; reams of empirical studies
demonstrating stark racial disparities in police stops, arrests, harass-
ment, and killings; and constant displays of police abuse captured on
bystanders’ cameras and circulated widely on social media,477 the
Supreme Court continues to issue decisions that are completely oblivious
to this reality.478 This reality of racialized policing entails more than a
race-based statistical difference in how police treat people. Rather, po-
lice enforce a carceral grip on entire communities that impinges on res-
idents’ everyday lives, imposing a perpetual threat of physical assault
and degradation, jeopardizing their opportunities to participate in the
political economy, and suffocating their freedom.479 As Professor Ekow
N. Yankah recently commented: “The Court’s studied indifference has
led to one of the more bizarre tensions in modern American political life:
we are all aware of how deeply race infuses our criminal justice system,
and yet, the law gives us few ways to properly recognize and contextu-
alize its impact.”480 Colorblindness in cases involving police is not just
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
475 Id. at 301 (Ginsburg, J., dissenting) (first and second alterations in original) (citations omitted)
(quoting Stephen L. Carter, When Victims Happen to Be Black, 97 YALE L.J. 420, 433–34 (1988)).
476 See Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes,
104 GEO. L.J. 1479, 1505–08 (2016); Carbado, From Stopping Black People, supra note 212, at 141–
42; Alice Ristroph, Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Pro-
cedure, 95 B.U. L. REV. 1555, 1604 (2015) (“[T]he Court’s more recent decisions document several
explicit refusals to treat racial bias in the criminal justice system as a problem of constitutional
significance.”); Ekow N. Yankah, Pretext and Justification: Republicanism, Policing, and Race, 40
CARDOZO L. REV. 1543, 1591 (2019).
477 See sources cited supra notes 136–147.
478 See, e.g., Nieves v. Bartlett, 139 S. Ct. 1715 (2019); Kisela v. Hughes, 138 S. Ct. 1148 (2018);
Utah v. Strieff, 136 S. Ct. 2056 (2016); Heien v. North Carolina, 135 S. Ct. 530 (2014).
479 See Yankah, supra note 476, at 1558–59.
480 Id. at 1550; see also BUTLER, supra note 59, at 56–61 (“In a series of cases, the conservatives
on the Court have given the police unprecedented power, with everybody understanding that these
powers will mainly be used against African Americans and Latinos.” Id. at 57.); cf. Strieff, 136 S.
Ct. at 2064 (limiting the scope of the Fourth Amendment’s exclusionary rule with no acknowledg-
ment of racial impacts); Heien, 135 S. Ct. at 536–40 (conducting Fourth Amendment analysis of a
warrantless arrest without mention of race); Herring v. United States, 555 U.S. 135, 147–48 (2009)
(holding that good faith exception applies where officer makes an arrest based on incorrect warrant
a matter of overlooking numerical disparities; it is a matter of ignoring,

and thereby supporting, monumental racial subjugation whose
eradication was the very object of the abolitionist activism that drove
constitutional change.
Two recent Supreme Court cases involving police surveillance illus-
trate the Court’s practice of loosening constitutional limits on policing
practices and insulating police from constitutional redress without tak-
ing account of devastating impact this practice has on black and brown
communities.481 Although these cases were decided under the Fourth
Amendment and did not consider Reconstruction Amendment concerns,
they reflect a colorblind disregard of the effect gutting Fourth
Amendment protections will have as police gain ever-greater power to
reign over marginalized communities. Thus, colorblind jurisprudence
regarding the role of police in maintaining the racial order helps to ob-
scure the Thirteenth and Fourteenth Amendment’s freedom objective
and requirement that the state equally protect people from the very
kinds of enslaving violence and degradation that police inflict.
The Court’s 2014 decision in Heien v. North Carolina482 involved
the constitutionality of a technique police routinely use to stop cars in
order to search them. In Heien, an officer on patrol noticed Maynor
Javier Vasquez driving and observed that he “looked ‘very stiff and
nervous’”;483 he then began following Vasquez and eventually pulled
him over for driving with a broken tail light.484 The Court had already
permitted such pretextual car stops in Whren v. United States,485 hold-
ing that police do not violate the Fourth Amendment when they stop
cars — regardless of their motivation — as long as they have a legal
right to pull the car over.486 The officer in Heien became suspicious
when he saw another man, Nicholas Heien, lying in the backseat.487 In
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
information, without mentioning race); Devenpeck v. Alford, 543 U.S. 146, 152–56 (2004) (conduct-
ing Fourth Amendment analysis of a warrantless arrest without mentioning race); Whren v. United
States, 517 U.S. 806, 813 (1996) (reasoning that “subjective intentions” that may be racially discrim-
inatory “play no role in ordinary, probable-cause Fourth Amendment analysis”); Tennessee v.
Garner, 471 U.S. 1, 9–20 (1985) (analyzing when apprehension of a suspect by use of deadly force is
appropriate without mention of racial profiling); Delaware v. Prouse, 440 U.S. 648, 663 (1979) (hold-
ing that police officer may not stop and search motorists without reasonable suspicion, but without
addressing race at all); Terry v. Ohio, 392 U.S. 1, 30 (1968) (holding that officer may stop and frisk
an individual if the officer has “reasonable” suspicions about the individual, without addressing
racial profiling).
481 See Yankah, supra note 476, at 1580–91 (critiquing the Court for ignoring “the social and
racial context” of policing in their recent cases, id. at 1591).
482 135 S. Ct. 530.
483 Id. at 534. Police disproportionately use pretexts like the one in Heien to stop and search cars
driven by black and brown men. See BUTLER, supra note 59, at 60.
484 Heien, 135 S. Ct. at 534.
485 517 U.S. 806.
486 See id. at 810–19.
487 Heien, 135 S. Ct. at 534.
the course of searching the car, the officer found a bag containing co-
caine.488 The North Carolina Court of Appeals agreed with Heien that
the evidence seized from his car should be suppressed because state law
only required one working tail light, making the officer’s stop invalid.489
The North Carolina Supreme Court reversed, reasoning that the good
faith exception for police stops applied to mistakes of law as well.490
The U.S. Supreme Court affirmed.491 Writing for the Court, Chief
Justice Roberts equated mistake of fact with mistake of law to reach a
seemingly logical ruling.492 In so doing, he failed to consider the effect
on people of color of stretching police officers’ ability to stop and search
people to situations where there is no legal right to make the stop in the
first place.493
Justice Sotomayor, the lone dissenter, castigated the majority for
“further eroding the Fourth Amendment’s protection of civil liberties in
a context where that protection has already been worn down.”494
Describing traffic stops as “invasive, frightening, and humiliating
encounters,”495 she warned: “Giving officers license to effect seizures so
long as they can attach to their reasonable view of the facts some rea-
sonable legal interpretation (or misinterpretation) that suggests a law
has been violated significantly expands [their] authority.”496 While
Justice Sotomayor’s dissent did not explicitly invoke the disparate racial
impacts facilitated by the Court’s doctrine, her deep-seated distrust of
excessive police authority resonates with the realities of racial inequity
she discusses in her future jurisprudence.
In another Fourth Amendment case decided two years later, Justice
Sotomayor directly confronted and condemned the Court’s avoidance of
racism in policing. Utah v. Strieff497 involved a Salt Lake City police
officer who conducted surveillance of a house he suspected was the site
of drug activity.498 He followed respondent Edward Strieff from the
house, stopped him, and requested to see his identification, which re-
vealed an outstanding warrant for a traffic violation.499 When the of-
ficer arrested and searched Strieff, he discovered “methamphetamine
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
488 Id.
489 Id. at 535.
490 Id.
491 Id. at 540.
492 See id. at 536–40.
493 See Yankah, supra note 476, at 1587 (noting the Heien Court’s “willingness to grant police a
freer hand with the full knowledge that police power will remain disproportionately focused on
persons of color”).
494 Heien, 135 S. Ct. at 543 (Sotomayor, J., dissenting).
495 Id. at 544.
496 Id. at 543.
497 136 S. Ct. 2056 (2016).
498 Id. at 2059.
499 Id. at 2060.
and drug paraphernalia.”500 The Utah Supreme Court ruled that the
Fourth Amendment required the evidence seized to be suppressed be-
cause the officer had no legal justification for stopping Strieff and thus
the search was illegal.501 But the U.S. Supreme Court reversed, allowing
the evidence’s admission despite the unlawfulness of the initial stop, rea-
soning that “the evidence the officer seized as part of the search incident
to arrest is admissible because the officer’s discovery of the arrest war-
rant attenuated the connection between the unlawful stop and the evi-
dence seized incident to arrest.”502 The Court’s opinion showed no
awareness of what yet another constitutional license for police to make
unlawful stops “on a whim or hunch”503 would mean for black and
brown people already systematically subjected to discriminatory
stops.504 Indeed, the Court took pains to portray the circumstances as
“isolated,” with “no indication that this unlawful stop was part of any
systemic or recurrent police misconduct.”505
Justice Sotomayor launched into a searing indictment of the Court’s
colorblindness. As in her Heien dissent, she contested the Court’s non-
chalant treatment of police stops, noting the power police can exert over
individuals and the ubiquity of outstanding warrants that now can serve
as excuses for that power’s unlawful imposition.506 She highlighted the
outlandish amount of discretion the Court granted an officer “to stop
you for whatever reason he wants — so long as he can point to a pre-
textual justification after the fact. That justification . . . may factor in
your ethnicity, where you live, what you were wearing, and how you
behaved”;507 in other words, if in the officer’s mind “you look like a
criminal.”508 Justice Sotomayor excoriated the Court for minimizing the
potential harms this discretion to discriminate could cause: “Even if you
are innocent, you will now join the 65 million Americans with an arrest
record and experience the ‘civil death’ of discrimination by employers,
landlords, and whoever else conducts a background check.”509
Then Justice Sotomayor moved to the most remarkable part of her
dissent: her explication of why the Court’s widening grant of power to
police to make pretextual stops systematically dealt the greatest blow to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
500 Id.
501 Id.
502 Id. at 2059.
503 Id. at 2067 (Sotomayor, J., dissenting).
504 See id. at 2069–71 (discussing the racial impact of the Court’s holding).
505 Id. at 2063 (majority opinion).
506 See id. at 2068 (Sotomayor, J., dissenting) (noting that government databases contain more
than 7.8 million outstanding warrants).
507 Id. at 2069 (citations omitted).
508 Id. at 2070.
509 Id. at 2070 (citing Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era
of Mass Conviction, 160 U. PA. L. REV. 1789, 1805 (2012)).
the freedom of people of color. Citing influential and poignant analyses

of racial oppression by Michelle Alexander, W.E.B. Du Bois, James
Baldwin, and Ta-Nehisi Coates,510 Justice Sotomayor discussed the im-
portance of judicial recognition of the pervasive repression black and
brown people experience in their encounters with the police:
For generations, black and brown parents have given their children “the
talk” — instructing them never to run down the street; always keep your
hands where they can be seen; do not even think of talking back to a
stranger — all out of fear of how an officer with a gun will react to
them . . . . By legitimizing the conduct that produces this double conscious-
ness, this case tells everyone . . . that an officer can verify your legal status
at any time. It says that your body is subject to invasion while courts excuse
the violation of your rights. It implies that you are not a citizen of a de-
mocracy but the subject of a carceral state, just waiting to be cataloged.511
Justice Sotomayor admonished the Court, insisting that confronting
racialized carceral control is crucial for freedom and democracy: “We
must not pretend that the countless people who are routinely targeted
by police are ‘isolated.’ . . . They are the ones who recognize that un-
lawful police stops corrode all our civil liberties and threaten all our
lives. Until their voices matter too, our justice system will . . . be any-
thing but.”512
The contrast between the majority’s jurisprudence and Justice
Sotomayor’s dissenting voice in both Heien and Strieff highlights the
anti-abolitionist repercussions of the dominant colorblind approach and
offers brilliant insight into the difference abolition constitutionalism
makes. The Court’s decisions in these cases disregard the unequal and
repressive effects of broadening police officers’ power to stop and search
people without constitutional restraint. In contrast, Justice Sotomayor
frames her reasoning around a recognition that police currently prop up
a racialized carceral regime that unjustly controls life in black and
brown communities; she focuses on the severe harms this repression
inflicts on people residing there; and she bases her decision on the con-
stitutional objective of advancing freedom and democracy. Because pre-
textual stops give police greater ability to impose their antifreedom and
antidemocratic rule over black and brown people, an abolition constitu-
tionalism requires that courts interpret the Fourth Amendment in light
of the Fourteenth Amendment’s purpose and history to eliminate such
practices, not to expand police officers’ power to engage in them. In
contrast to the Court’s anti-abolitionist stance, Justice Sotomayor’s un-
derstanding that the carceral state subjects people to a form of racialized
control that denies their freedom and democratic citizenship — and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
510 Id. (citing ALEXANDER, supra note 52; JAMES BALDWIN, THE FIRE NEXT TIME (1963);
TA-NEHISI COATES, BETWEEN THE WORLD AND ME (2015); W.E.B. DU BOIS, THE SOULS
OF BLACK FOLK (1903)).
511 Id. at 2070–71 (emphasis added).
512 Id. at 2071.
therefore must be curtailed — reflects the values of antislavery aboli-

tionists that undergird the Reconstruction Amendments.
(b) Discriminatory Purpose Requirement. — Related to the Court’s
colorblind approach is its individualized understanding of racism. The
Court requires that plaintiffs seeking to prevail on Fourteenth
Amendment claims prove that state agents treated them differently on
account of their race, and did so with an intent to discriminate. The
Court’s 1976 decision in Washington v. Davis513 held that a law’s dis-
parate impact on different races cannot by itself establish an equal pro-
tection violation.514 Instead, there must be evidence of discriminatory
purpose — a smoking gun that reveals the racial animus the offending
police officer, prison guard, or legislator harbored.515
Both aspects of this framing of racism — biased perpetrators
discriminating against individual victims — mischaracterize how insti-
tutionalized racism, including carceral punishment, works to uphold the
racial order.516 First, the Court’s focus on the rights of individual vic-
tims of racial discrimination obscures the systemic control the prison
industrial complex exercises over entire marginalized communities.517
Constitutional wrongs are framed with regard to a “rights-bearing indi-
vidual, not . . . a member of a racialized community that has been sub-
jected to conditions that make him/her a prime candidate for legal
repression,” writes Angela Y. Davis.518 Adjudicating an individual
rights violation — either by dismissing it or redressing it — still leaves
the carceral system to operate unscathed while giving a false sense of
judicial fairness.
Second, requiring proof of discriminatory purpose treats racial bias
as a system malfunction. As discussed in Part I, the criminal punish-
ment system has functioned since the slavery era to keep black people
in a subordinated political status. Because the system is structured to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
513 426 U.S. 229 (1976).
514 Id. at 242 (“[W]e have not held that a law, neutral on its face and serving ends otherwise
within the power of government to pursue, is invalid under the Equal Protection Clause simply
because it may affect a greater proportion of one race than of another. Disproportionate impact is
not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by
the Constitution.”).
515 Id. at 239–46 (holding that a “law or other official act” must “reflect[] a racially discriminatory
purpose” to be unconstitutional under the Fourteenth Amendment, id. at 239).
516 See Yankah, supra note 476, at 1597–600.
517 See DAVIS, ABOLITION DEMOCRACY, supra note 17, at 37 (discussing how the law’s em-
phasis on individual rights rather than systemic disproportionate impact masks the racism of the
practice of capital punishment).
518 Id.; see id. at 93 (“Because the person that stands before the law is an abstract, rights-bearing
subject, the law is unable to apprehend the unjust social realities in which many people live.”); see
also BELL, RACE, RACISM, supra note 388, at 62 (“Th[e] belief in eventual racial justice, and the
litigation and legislation based on that belief, was always dependent on the ability of its advocates
to adhere to equality ideology while rejecting discriminatory experience.”).
target and disadvantage black people, its oppressive impact does not
require its agents deliberately to harm black people out of prejudice
against them. Moreover, requiring black defendants to demonstrate dis-
criminatory intent assumes discrimination against them is exceptional
rather than the normal way carceral punishment operates. For instance,
despite overwhelming evidence presented in McCleskey v. Kemp519 that
race affects the administration of capital punishment, the Court refused
to strike down McCleskey’s death sentence.520 Instead, the question the
Justices posed was whether sentencing McCleskey himself to death con-
stituted a discriminatory misuse of the death penalty — an aberrational
abuse of discretion, unexplained discrepancy, or explicit animus against
him.521 The problem with this approach is that discriminatory death
sentencing is not a system malfunction. The death penalty survives as
a legacy of slavery and Jim Crow because it still helps to preserve an
unequal racial order. Even when claims of individual rights violations
are won, these victories do more to make it appear that the system has
been fixed than to move toward its eradication.
Moreover, the Court’s constitutional jurisprudence imposes incon-
sistent burdens of proof with respect to white plaintiffs’ reverse discrim-
ination claims and nonwhite plaintiffs’ race-based police profiling
claims. The Court first articulated the strict scrutiny standard for dis-
crimination based on race and national origin in Korematsu v. United
States,522 upholding the constitutionality of the U.S. government’s for-
cible internment of Japanese Americans during World War II,523 and
signaling the potentially repressive nature of its Fourteenth Amendment
jurisprudence.524 Since then, the Court has imposed a high burden of
proof on government efforts to redress historical racism, requiring that
the government prove a compelling interest in order to defeat plaintiffs’
claims. In its affirmative action opinions, a majority of the Court has
applied the exacting strict scrutiny test on behalf of white complainants
to overturn race-conscious measures designed to overcome past discrim-
ination in employment, schools, and government contracts.525 By con-
trast, the Supreme Court has required that victims of state segregation,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
519 481 U.S. 279 (1987).
520 See id. at 282–92; infra pp. 91–92.
521 See McCleskey, 481 U.S. at 292 (“[T]o prevail under the Equal Protection Clause, McCleskey
must prove that the decisionmakers in his case acted with discriminatory purpose.”).
522 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).
523 See id. at 216–19.
524 See CHEMERINSKY, supra note 300, at 761–62.
525 See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291, 320 (1978) (holding that
race-conscious admissions policies must survive strict scrutiny); Harris, Whiteness as Property,
supra note 445, at 1766–77.
profiling, or punishment on the basis of race prove discriminatory gov-

ernment purpose — in other words, shifting the burden of proof onto
the plaintiffs of color.526
In her Supreme Court Foreword, Professor Reva Siegel traced the
Court’s anti-abolitionist evolution with a comparative history of dis-
crimination claims in affirmative action and racial profiling cases.527
According to Siegel, “the Court has restricted judicial oversight of mi-
nority claims as it intensified judicial oversight of majority claims.”528
This shift in standards radically transformed Fourteenth Amendment
jurisprudence from the traditional United States v. Carolene Products
Co.529 framework, based on a recognition of the disempowerment of ra-
cial minorities,530 into “a form of judicial review that cares more about
protecting members of majority groups from actions of representative
government that promote minority opportunities than it cares about
protecting ‘discrete and insular minorities’ from actions of representa-
tive government that reflect ‘prejudice.’”531 Thus, the Court typically
strikes down race-conscious affirmative action measures as racially
biased while upholding ostensibly race-neutral law enforcement prac-
tices that repress communities of color.532
It should be obvious that a constitutional jurisprudence that denies
marginalized communities protection from state violence while affirma-
tively shielding white people from antidiscrimination measures is
diametrically opposed to the equal protection values abolitionists ad-
vance. The smoking gun test replicates the same disregard of institu-
tionalized racism reflected in colorblindness doctrine. The Court fails
to see that tackling racism head-on requires explicit attention to race,
and that institutionalized racism can proceed without any need for
expressions of racist intent. To make matters worse, conflating racial
discrimination with racial bias gives states a ploy to easily evade consti-
tutional or civil rights scrutiny: the Court has held that proof of race-
neutral reasons can excuse state action that has a discriminatory
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
526 See McCleskey, 481 U.S. at 292; Washington v. Davis, 426 U.S. 229, 239–46 (1976); cf. Pers.
Adm’r v. Feeney, 442 U.S. 256, 276 (1979) (requiring female plaintiff to prove “gender-based dis-
criminatory purpose”).
527 See Reva B. Siegel, The Supreme Court, 2012 Term — Foreword: Equality Divided, 127
HARV. L. REV. 1 (2013).
528 Id. at 7.
529 304 U.S. 144 (1938).
530 See id. at 152 n.4.
531 Siegel, supra note 527, at 7 (quoting Carolene Prods., 304 U.S. at 153 n.4).
532 See id. at 44–51 (discussing how the Court’s application of strict scrutiny in affirmative action
cases diverges from its discriminatory purpose requirement in challenges to race-based law enforce-
ment practices). Compare Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978), with
McCleskey v. Kemp, 481 U.S. 279, 292 (1987).
impact.533 As with colorblindness, the Court’s misunderstanding of the

relationship between race and racism produces a jurisprudential stand-
ard that is anti-abolitionist.
Two voting rights cases decided in the 2017 Term illustrate how
requiring proof of discriminatory purpose sanctions state efforts to
maintain white rule and denies democratic citizenship to people of color.
Husted v. A. Philip Randolph Institute534 considered the statutory va-
lidity of Ohio’s practice of purging certain voters from the state’s voting
list.535 After mailing a verification card to voters who had not voted for
two years and thus may have moved out of state, Ohio removed from
the voting rolls those who did not return the card and did not vote in
the next four years.536 The Court held the scheme to be in line with the
National Voter Registration Act537 (NVRA) and the Help America Vote
Act538 (HAVA), which restrain states from removing voters because they
failed to vote. The Court considered the failure to vote to be acceptable
under the NVRA as a proxy for whether a voter had moved away and
thus could be removed from the voter rolls, as long as failure to vote
was not the only factor considered.539 Justice Breyer argued in dissent
that using failure to vote as a means to identify voters to purge was in
fact exactly what the NVRA prohibited.540 In protecting the Ohio purg-
ing plan, the Court remained totally unconcerned about the history of
racist voter suppression that states achieved with similar ploys and the
discriminatory impact Ohio’s plan would have by depressing voter turn-
out among already-marginalized groups.541
As she did in Strieff,542 Justice Sotomayor condemned the Court’s
decision for contravening the Constitution’s democratic values by ignor-
ing structural racism. Noting that “[c]oncerted state efforts to prevent
minorities from voting and to undermine the efficacy of their votes are
an unfortunate feature of our country’s history,” Justice Sotomayor
reminded the Court of Jim Crow tactics, strikingly similar to Ohio’s
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
533 See, e.g., Batson v. Kentucky, 476 U.S. 79, 101 (1986) (White, J., concurring) (“The Court
emphasizes that using peremptory challenges to strike blacks does not end the inquiry . . . . The
judge may not require the prosecutor to respond at all. If he does, the prosecutor . . . will have an
opportunity to give trial-related reasons for his strikes . . . .”); Washington v. Davis, 426 U.S. 229,
241 (1976).
534 138 S. Ct. 1833 (2018).
535 Id. at 1838, 1841.
536 Id. at 1840–41.
537 52 U.S.C. §§ 20501–20511 (Supp. IV 2016).
538 Pub. L. No. 107-252, 116 Stat. 1666 (2002) (codified in scattered sections of 2, 5, 10, 36, and
52 U.S.C.).
539 Husted, 138 S. Ct. at 1842–43.
540 Id. at 1854 (Breyer, J., dissenting).
541 See id. at 1863–64 (Sotomayor, J., dissenting) (citing ALEXANDER KEYSSAR, THE RIGHT
TO VOTE 124 (rev. ed. 2009)).
542 See supra pp. 83–84.
procedure, to disenfranchise eligible voters by expelling them from reg-

istration lists.543 Justice Sotomayor also castigated the Court for ignor-
ing the disempowering consequences Ohio’s purge had already had for
“minority, low-income, disabled, and veteran voters.”544 Justice
Sotomayor relied on amicus briefs filed by a number of social justice
organizations to detail the disproportionate impact the Ohio procedure
had on these voters and the ramifications for diluting their political
influence.545 She cited findings from one county that “‘African-
American-majority neighborhoods in downtown Cincinnati had 10% of
their voters removed due to inactivity’ since 2012, as ‘compared to only
4% of voters in a suburban, majority-white neighborhood.’”546
Justice Sotomayor concluded with a call to political activism to end
discriminatory state interference in the vote: “Communities that are dis-
proportionately affected by unnecessarily harsh registration laws should
not tolerate efforts to marginalize their influence in the political process,
nor should allies who recognize blatant unfairness stand idly by,” she
declared.547 “Today’s decision forces these communities and their allies
to be even more proactive and vigilant in holding their States account-
able and working to dismantle the obstacles they face in exercising the
fundamental right to vote.”548
The Justices in the majority dismissed Justice Sotomayor’s argument
as “say[ing] nothing about what is relevant in [the] case” and “miscon-
ceived.”549 But this dismissal rested on their own misconception of
racism as individualized racial bias.550 For the Court, the undeniable
historical and empirical evidence that Ohio’s voter purge continued a
longstanding pattern of discriminatory disenfranchisement was unim-
portant because “Justice Sotomayor [did] not point[] to any evidence in
the record that Ohio instituted or . . . carried out its program with dis-
criminatory intent.”551
Justice Sotomayor’s disagreement with the Court’s majority contin-
ued in Abbott v. Perez,552 a case involving a Texas redistricting plan
challenged as a racial gerrymander.553 The Court upheld the parts of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
543 Husted, 138 S. Ct. at 1863 (Sotomayor, J., dissenting).
544 Id. at 1864.
545 Id. at 1864–65.
546 Id. at 1864 (quoting Brief of Amici Curiae NAACP and the Ohio State Conference of the
NAACP in Support of Respondents at 18–19, Husted, 138 S. Ct. 1833 (No. 16-980)).
547 Id. at 1865.
548 Id.
550 See id.
551 Id.
552 138 S. Ct. 2305 (2018).
553 Id. at 2314–16.
the plan that harmed minority voters because there was insufficient ev-
idence of the legislators’ discriminatory motivation,554 while striking
down the plan in one district where the Court found that it unconstitu-
tionally used race to benefit Latinx voters.555 Here, we see the
anti-abolitionist pattern Siegel identified: the Court strikes down as
unconstitutional race-conscious remedies for past institutional racism as
it affirms the constitutionality of racialized state repression by requiring
proof of biased intent.556 Justice Sotomayor criticized the majority for
ignoring “overwhelming”557 evidence of discrimination and mischarac-
terizing the lower court’s analysis of the state’s history of minority dis-
enfranchisement.558 And she stressed that the Court’s anti-abolitionist
doctrine that shields state mechanisms to preserve white domination is
the antithesis of Fourteenth Amendment democratic objectives:
The Equal Protection Clause of the Fourteenth Amendment and § 2 of the
Voting Rights Act secure for all voters in our country, regardless of race, the
right to equal participation in our political processes. Those guarantees
mean little, however, if courts do not remain vigilant in curbing States’
efforts to undermine the ability of minority voters to meaningfully exercise
that right. . . . The Court today does great damage to that right of equal
opportunity. Not because it denies the existence of that right, but because
it refuses its enforcement.559
The Reconstruction Amendments impose a constitutional duty on
the Court to abolish systems that reinstate slavery, to protect citizens
equally from private and state incursions on their basic freedoms, and
to support democratic citizenship for everyone. Justice Sotomayor’s
dissents powerfully spotlight how the Court’s colorblind and discrimi-
natory intent doctrines breach that duty, while simultaneously offering
insights on what an alternative jurisprudence guided by abolition
constitutionalism might look like.
(c) Fear of Too Much Justice. — The Supreme Court’s anti-
abolitionist jurisprudence is also animated by a desire to avoid the rad-
ical change an abolition constitutionalism would require. Suppose,
instead of being colorblind, the Court took account of pervasive racism
in criminal law enforcement? Suppose, instead of requiring evidence of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
554 See id. at 2326–30.
555 Id. at 2334–35.
556 See Siegel, supra note 527, at 2–3 (“When minorities challenge laws of general application and
argue that government has segregated or profiled on the basis of race, plaintiffs must show that
government acted for a discriminatory purpose, a standard that doctrine has made extraordinarily
difficult to satisfy. . . . By contrast, when members of majority groups challenge state action that
classifies by race — affirmative action has become the paradigmatic example — plaintiffs do not
need to demonstrate, as a predicate for judicial intervention, that government has acted for an
illegitimate purpose.”).
557 Perez, 138 S. Ct. at 2360 (Sotomayor, J., dissenting).
558 See id. at 2352–54.
559 Id. at 2360.
racial motivation, it confronted the devastating impact of carceral insti-

tutions on communities of color? Suppose a majority of Justices not
only ruled in line with Justice Sotomayor’s dissenting opinions in Heien,
Strieff, Husted, and Perez, but also applied this reasoning to other claims
of constitutional violations in policing, surveillance, sentencing, and
prison conditions? Such a series of Supreme Court decisions would de-
liver a tremendous blow to the prison industrial complex. Although
Court decisions alone will not abolish prisons, they can weaken many
of the practices, such as discriminatory police stops, that help to rein-
force and expand them. But the Court has shied away from this type
of systemic change, going so far as to deny constitutional relief based in
part on the potential repercussions such relief would have on the stabil-
ity of the criminal punishment system.560 In other words, the Justices
sometimes refuse to find that specific carceral practices are unconstitu-
tional because they fear such a ruling would require “too much
justice.”561
Fear of too much justice is patently visible in the Court’s death pen-
alty decision McCleskey v. Kemp. In that case, Warren McCleskey chal-
lenged his death sentence for armed robbery and murder on the grounds
that capital punishment in Georgia violated the Eighth and Fourteenth
Amendments because it was administered in a racially discriminatory
manner.562 To back up this claim, McCleskey presented rigorous
empirical evidence that race affected the risk of being sentenced to death
in Georgia.563 He relied on the Baldus Study, a statistical analysis of
over 2000 Georgia murder cases in the 1970s that found that defendants
convicted of killing whites were more than four times as likely to receive
the death penalty as defendants convicted of killing blacks, and that
black defendants accused of killing whites had the highest risk of
receiving the death penalty.564
The Court, in an opinion by Justice Powell, held that statistical evi-
dence that race significantly affected capital punishment in Georgia was
irrelevant to the constitutionality of McCleskey’s sentence.565 Reversing
McCleskey’s sentence would require proof that it resulted from con-
scious, deliberate “discriminatory purpose” on the part of government
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
560 See, e.g., McCleskey v. Kemp, 481 U.S. 279, 314–15 (1987) (rejecting claim of racial discrimi-
nation in capital punishment sentencing in part because the “claim, taken to its logical conclusion,
throws into serious question the principles that underlie our entire criminal justice system,” id. at
314–15, and the Court “could soon be faced with similar claims as to other types of penalty,” id.
at 315).
561 Id. at 339 (Brennan, J., dissenting).
562 Id. at 279, 286 (majority opinion).
563 Id. at 286–87.
564 Id. at 286–87, 320; see Baldus et al., supra note 252, at 708–10.
565 McCleskey, 481 U.S. at 294–97.
decisionmakers involved in the case.566 Thus, the Court employed the

anti-abolitionist doctrines discussed above: it remained colorblind, dis-
missing empirical evidence that race mattered significantly to the ad-
ministration of the death penalty — both in the greater value placed on
white victims’ lives and the higher risk of execution imposed on black
men whose victims were white — and it required proof of discrimina-
tory intent instead of relying on the irrefutable evidence of the decisive
impact institutionalized racism had on capital punishment in Georgia.
The opinions in McCleskey reveal another salient aspect of the
Court’s anti-abolitionist jurisprudence, for both majority and dissenting
Justices acknowledged that the race of victims and defendants mattered
to capital punishment.567 The Court declined to endorse the anti-
abolitionist suggestion of some scholars that the death penalty’s racial
disparity could be corrected by executing more killers of black
victims.568 Instead, the Court had a different anti-abolitionist perspec-
tive: the Justices worried that finding unconstitutional discrimination in
McCleskey’s case would require abolishing the death penalty altogether
and would threaten other criminal punishment practices with similar
evidence of racial disparities. As Justice Powell reasoned, “McCleskey’s
claim, taken to its logical conclusion, throws into serious question the
principles that underlie our entire criminal justice system.”569 Thus, the
Court recognized that stark racial disparities were so prevalent in crim-
inal punishment that, if proof of disparate racial impact sufficed to
prove a constitutional violation, nearly all aspects of criminal punish-
ment might be challenged as unconstitutional.
Justice Powell feared that the Court’s recognition of racially dispar-
ate impact as a constitutional violation “would undermine the presump-
tion of legitimacy that maintained the state criminal apparatus.”570 As
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
566 Id. at 297.
567 See id. at 287; id. at 321 (Brennan, J., dissenting).
568 See Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme
Court, 101 HARV. L. REV. 1388, 1391–95, 1436–39 (1988); Evan Tsen Lee & Ashutosh Bhagwat,
The McCleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims in Capital
Sentencing, 1998 SUP. CT. REV. 145, 149 (noting that a disinclination to impose the death penalty
in cases with black victims may fail to deter future murders of black people or to deliver justice for
families of black victims); see also Aya Gruber, Equal Protection Under the Carceral State, 112 NW.
U. L. REV. 1337, 1354–58 (2018) (discussing the Court’s consideration and rejection of approaches
that would apply the death penalty more frequently in cases with black victims). But see Charles
J. Ogletree, Jr., Black Man’s Burden: Race and the Death Penalty in America, 81 OR. L. REV. 15,
33 (2002) (disagreeing with Professor Randall Kennedy’s argument that the remedy to racial dis-
parities in the death penalty is “executing more people”).
569 McCleskey, 481 U.S. at 314–15; see Gruber, supra note 568, at 1358 (“Throughout the process
of preparing the majority opinion, Powell made clear his belief that the ‘petitioner’s challenge is no
less than to our entire criminal justice system.’” (quoting Memorandum from Lewis F. Powell, Jr.,
Assoc. Justice, Supreme Court of the United States, to Leslie & Ronald 6 (Nov. 3, 1986) (on file with
the Washington & Lee University School of Law Library))).
570 Gruber, supra note 568, at 1362.
Professor Aya Gruber points out, Justice Powell previously had ex-
pressed this fear in his dissenting opinion in Furman v. Georgia,571
which temporarily struck down the death penalty:
The root causes of the higher incidence of criminal penalties on “minorities
and the poor” will not be cured by abolishing the system of penalties. Nor,
indeed, could any society have a viable system of criminal justice if sanc-
tions were abolished or ameliorated because most of those who commit
crimes happen to be underprivileged.572
Justice Powell recognized that a constitutional jurisprudence that ad-
dressed the disparate impact of carceral punishment on marginalized
groups would require abolishing those punishments, but he rejected
abolition by attributing the disparities to those groups’ criminal propen-
sities resulting from social disadvantage rather than to the way the state
structures carceral systems to punish them disproportionately.573 As the
McCleskey decision illustrates, the Court’s anti-abolition doctrines work
to preserve the legitimacy of racialized state systems whose repressive
impact on marginalized communities would otherwise call for their
abolition.
E. Flowers v. Mississippi
Flowers v. Mississippi, the Supreme Court’s most recent application
of the Fourteenth Amendment to a criminal procedure issue, provides
an apt context for further examining the contemporary significance of
abolition constitutionalism. When his case reached the Supreme Court,
Flowers had been tried for capital murder six times by the same white
prosecutor, Doug Evans.574 Over the course of six trials, Evans used
peremptory challenges to strike forty-one of forty-two prospective black
jurors.575 The Mississippi Supreme Court reversed the first two of
Flowers’s convictions for prosecutorial misconduct and reversed his
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
571 408 U.S. 238 (1972).
572 Gruber, supra note 568, at 1362 (quoting Furman, 408 U.S. at 447 (Powell, J., dissenting)).
Justice Powell joined the majority a few years later in a case that restricted the scope of disparate
impact claims. See Washington v. Davis, 426 U.S. 229, 248 (1976) (“A rule that a statute designed
to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits
or burdens one race more than another would be far reaching and would raise serious questions
about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licens-
ing statutes that may be more burdensome to the poor and to the average black than to the more
affluent white.”).
573 See HINTON, supra note 52, at 20–22 (discussing the understanding among liberal and con-
servative policymakers during the Kennedy, Johnson, and Nixon Administrations of “black cultural
pathology, rather than poverty, as the root cause of crime” and “crime and violence as somehow
innate among African Americans,” id. at 21).
574 Flowers v. Mississippi, 139 S. Ct. 2228, 2236 (2019); Flowers v. State, 240 So. 3d 1082, 1091,
1117 (Miss. 2017).
575 Flowers, 139 S. Ct. at 2251.
third conviction on the basis of a Batson violation.576 In the next two

trials, jurors were unable to reach a verdict.577 The Mississippi Supreme
Court upheld Flowers’s conviction in the sixth trial.578
The U.S. Supreme Court’s decision hinged on a single issue: whether
Evans violated Flowers’s Fourteenth Amendment rights by excluding a
black woman from the jury in the sixth trial.579 More than two decades
after Flowers entered death row,580 the Court overturned his conviction
in a 7-2 decision.581
Although the Court ruled in Flowers’s favor, analyzing its reasoning
from an abolitionist perspective reveals that its interpretation of the
Equal Protection Clause nevertheless adopted the anti-abolitionist
doctrines discussed above. In what ways did the Court fail to apply the
abolition constitutionalism that generated the Fourteenth
Amendment and what difference would the Court’s adherence to that
paradigm have made to Flowers’s fate and to the carceral practices that
led to his convictions?
1. Justice Kavanaugh’s Compromise. — Justice Kavanaugh’s discus-
sion about whether Evans violated Flowers’s rights got off to a promis-
ing start by reviewing the historical origins of the Fourteenth
Amendment’s prohibition of racial discrimination in jury selection.582
Noting that the Equal Protection Clause was “[r]atified in 1868 in the
wake of the Civil War,” Justice Kavanaugh quoted the Slaughter-House
Cases’ statement of the Clause’s abolitionist objectives — “the freedom
of the slave race, the security and firm establishment of that freedom,
and the protection of the newly-made freeman and citizen from the
oppressions of those who had formerly exercised unlimited dominion
over him.”583 The opinion pointed also to the Civil Rights Act of
1875,584 which “made it a criminal offense for state officials to exclude
individuals from jury service on account of their race,”585 as well as the
Court’s decision in Strauder v. West Virginia586 striking down a West
Virginia statute declaring only whites could serve on juries.587 Justice
Kavanaugh reiterated the importance of jury service to black people’s
citizenship: “Other than voting, serving on a jury is the most substantial
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
576 Id. at 2236–37.
577 Id. at 2237.
578 Id.
579 Id. at 2235.
580 Flowers v. State, 240 So. 3d 1082, 1093 (Miss. 2017).
581 Flowers, 139 S. Ct. at 2234–35.
582 Id. at 2238–41.
583 Id. at 2238 (quoting Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 71 (1873)).
584 Ch. 114, 18 Stat. 335.
585 Flowers, 139 S. Ct. at 2238–39.
586 100 U.S. 303 (1880).
587 Flowers, 139 S. Ct. at 2239.
opportunity that most citizens have to participate in the democratic

process.”588
Next, Justice Kavanaugh described how prosecutors have used the
peremptory challenge as a covert device to deny black citizens the right
to be jurors and recognized the “cold reality of jury selection” that
peremptory challenges help prosecutors more than they do black
defendants.589 The leading case Batson v. Kentucky,590 which guided
Justice Kavanaugh’s opinion, affirmed protections against racial
discrimination in jury selection by placing constitutional limits on pros-
ecutors’ use of peremptory strikes to exclude African Americans from
juries.591 Batson retained the Washington v. Davis discriminatory intent
requirement, but pronounced a new standard for meeting it with
circumstantial evidence of a discriminatory pattern, holding that a
defendant “may make out a prima facie case of purposeful discrimina-
tion by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.”592 The burden then shifts to the
prosecutor to demonstrate that “permissible racially neutral selection
criteria and procedures have produced the monochromatic result.”593
While Batson’s expansion of ways to prove discriminatory purpose
to include a prosecutor’s discriminatory pattern may seem “revolution-
ary,”594 it has proven “toothless”595 at preventing discriminatory jury
strikes because judges routinely accept prosecutors’ pretextual race-
neutral excuses for them.596 Justice Kavanaugh saw through Evans’s
transparent ploys to evade Batson by selecting one black juror as sub-
terfuge and questioning prospective black jurors more than whites to
build a false case for nondiscriminatory reasons for striking them.597
Taking account of “[t]he State’s relentless, determined effort to rid the
jury of black individuals,” the Court found sufficient evidence to suggest
that “the State wanted to try Flowers before a jury with as few black
jurors as possible, and ideally before an all-white jury,” adding: “We
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
588 Id. at 2238.
589 Id. at 2242.
590 476 U.S. 79 (1986).
591 Id. at 89.
592 Id. at 93–94.
593 Id. at 94 (quoting Alexander v. Louisiana, 405 U.S. 625, 632 (1972)).
594 James J. Tomkovicz, Twenty-Five Years of Batson: An Introduction to Equal Protection Reg-
ulation of Peremptory Jury Challenges, 97 IOWA L. REV. 1393, 1403 (2012).
595 Daniel R. Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s
Remarkable Appellate Batson Record, 94 N.C. L. REV. 1957, 1978 (2016).
596 Id. at 1978–79; see also Garrett Epps, A Racial Pattern So Obvious, Even the Supreme
Court Might See It, THE ATLANTIC (Mar. 18, 2019), https://www.theatlantic.com/
ideas/archive/2019/03/flowers-v-mississippi-jurors-removed-because-race/585094 [https://perma.cc/
UQ2V-LMUE].
597 See Flowers v. Mississippi, 139 S. Ct. 2228, 2246–48 (2019).
cannot ignore that history.”598 The majority opinion made it clear that
the freedom to serve on juries has been important to black citizenship
since Reconstruction and that white-controlled legislatures and legal
systems have been intent on thwarting it.
The Court reversed Flowers’s conviction based on its acknowledg-
ment of a history of racial discrimination in jury selection and of the
Fourteenth Amendment’s objective to protect black people’s right to
jury service. In this regard, the Flowers opinion is less anti-abolitionist
than the opinions regarding police stops,599 voting rights,600 and the
death penalty601 discussed above. Yet the Court’s reasoning falls far
short of embracing abolition constitutionalism.
Although the Flowers Court explicitly acknowledged that discrimi-
natory jury selection violates the Fourteenth Amendment,602 its opinion
lacked the features of the abolition constitutionalism that animated the
Equal Protection Clause.603 Missing from the Court’s opinion is any
discussion of the white supremacist logic behind keeping black people
off juries, including the reason why West Virginia enacted the 1873 law
at issue in Strauder allowing only white people to be jurors, and why
prosecutors so routinely and relentlessly exclude black jurors from cap-
ital trials of black defendants.604 While attending to black people’s in-
dividual right to serve on juries and acknowledging that the ultimate
goal of Evans’s relentless exclusion of black individuals from the jury
was to create an all-white jury,605 the Court did not address the systemic
role of all-white juries in preserving white domination of criminal pun-
ishment. Justice Kavanaugh recognized that all-white juries are prob-
lematic, but characterized the problem as the harm that individual rogue
prosecutors inflict on individual black citizens whom they wrongfully
exclude from juries. This formulation ignores the way all-white juries
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
598 Id. at 2246.
602 Flowers, 139 S. Ct. at 2238–39.
603 See supra pp. 54–62, 63–64.
604 See Strauder v. West Virginia, 100 U.S. 303, 310 (1880) (invalidating 1873 law); see also
EQUAL JUSTICE INITIATIVE, ILLEGAL RACIAL DISCRIMINATION IN JURY SELECTION: A
CONTINUING LEGACY 9–13 (2010); Michael J. Klarman, The Racial Origins of Modern Criminal
Procedure, 99 MICH. L. REV. 48, 62 (2000) (explaining that the preservation of all-white juries was
critical to “the perpetuation of white supremacy within the legal system”); Melynda J. Price, Per-
forming Discretion or Performing Discrimination: Race, Ritual, and Peremptory Challenges in Cap-
ital Jury Selection, 15 MICH. J. RACE & L. 57, 76–84 (2009) (discussing the persistence of racially
discriminatory peremptory challenges in the context of jury selection in capital trials); Dax Devlon-
Ross, Bias in the Box, VQR (Fall 2014), https://www.vqronline.org/reporting-articles/2014/10/bias-box
[https://perma.cc/G2QL-PNNW] (discussing rampant racial bias in jury selection and capital trials).
605 Flowers, 139 S. Ct. at 2246.
have historically functioned as a legal institution to perpetuate racial

subordination.
Examining the background of Flowers’s conviction beyond jury
selection helps to illuminate Evans’s determination to empanel an all-
white jury. A stunning investigative podcast, In the Dark, uncovered
numerous problems in the police investigation and subsequent trials.
Even though there was no evidence directly linking Flowers to the
crimes,606 the white police investigator singled him out as the only main
suspect after a few months of investigation and set about building a case
against him.607 The podcast also highlighted misstatements made by
Evans to the jury,608 state witnesses who were clearly not credible,609
forensic science that called into question the expert testimony of the
State’s ballistics analysts,610 a gun near the crime scene that went miss-
ing,611 and testimony from two jailhouse informants who said they lied
under oath because of deals made with Evans.612 With an all-white
jury, Evans had a far better chance of convicting a black man accused
of killing three white people, despite the lack of evidence against him.
The racial danger inherent in jury selection isn’t that black jurors will
side with guilty black defendants. The danger is that white jurors will
convict black defendants regardless of their guilt or innocence and
refuse to convict white people who inflict violence on blacks.613 The
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
606 See In the Dark Source Notes, APM REP., https://www.apmreports.org/in-the-dark/season-
two/source-notes [https://perma.cc/B9WY-XQFS] (noting that testimony by an informant who
came forward five years after the crime “provided the only direct evidence against Flowers”).
607 See In the Dark: July 16, 1996, supra note 5, at 14:38; In the Dark: The Gun, at 23:53, APM
REP. (May 8, 2018), https://www.apmreports.org/story/2018/05/08/in-the-dark-s2e3 [https://
perma.cc/26UM-CES7]; Parker Yesko, John Johnson: The Investigator in His Own Words, APM
REP. (June 19, 2018), https://www.apmreports.org/story/2018/06/19/john-johnson-investigator
[https://perma.cc/9PB5-4WME].
608 See In the Dark Source Notes, supra note 606 (“In the first two appeals, the Court found
Evans had misstated the facts and asked improper questions not in good faith.”).
609 Id.; see Parker Yesko, What Exactly Are Prosecutors Allowed to Do?, APM REP. (May 15,
2018), https://www.apmreports.org/story/2018/05/15/what-exactly-are-prosecutors-allowed-to-do
[https://perma.cc/7HNN-VRBX] (“[State witness in the Flowers trial] Frederick Veal was, by his
own admission, not credible. In 1997, he had three prior convictions for uttering forgery — essen-
tially lying with an intent to defraud.”).
610 See In the Dark, Season 2 Episode 3: The Gun, supra note 607, at 34:05 (explaining that the
expert’s claim that a gun will produce a unique mark is “largely subjective”).
611 See id. at 2:06.
612 See In the Dark: The Confessions, at 19:34, APM REP. (May 15, 2018), https://www.
apmreports.org/story/2018/05/15/in-the-dark-s2e4 [https://perma.cc/6WHF-TTAL]; see also In the
Dark Source Notes, supra note 606 (“Three jailhouse informants have testified that Flowers con-
fessed to committing the Tardy murders. All three have since recanted.”). However, it is important
to note that some abolitionists caution that “[p]opularizing prison/police abuses through books and
reports, television series and podcasts appears to deflect from off-continuum resistance.” James, 7
Lessons, supra note 42.
613 See, e.g., William J. Bowers et al., Death Sentencing in Black and White: An Empirical Anal-
ysis of the Role of Jurors’ Race and Jury Racial Composition, 3 U. PENN. J. CONST. L. 171, 259
(2001) (summarizing empirical findings that show “make-up of the jury” is “integral to” “white racial
violence the Equal Protection Clause protects against is the violence

against black people that is furthered or excused by the all-white jury.
By misidentifying the relationship between jury selection and white
supremacy, the Court in Flowers went off track. Justice Kavanaugh’s
opinion did nothing to invalidate all-white juries as violations of the
Fourteenth Amendment’s antislavery ideals. To the contrary, Justice
Kavanaugh made it clear that the Court’s aim was the opposite — to
maintain the current jury selection system. First, Justice Kavanaugh
stressed repeatedly that the Court’s intervention in jury selection was
exceptional and limited by the egregious pattern of racial discrimination
in Flowers’s particular case.614 He emphasized the extraordinary extent
of racial discrimination in the trials, stating that it was only the accu-
mulation of Evans’s multiple instances of misconduct that sufficed for
a constitutional violation. “We need not and do not decide that any one
of [the] four facts [showing discrimination] alone would require rever-
sal,” Justice Kavanaugh wrote.615
Justice Alito wrote a brief concurring opinion simply to underscore
that the only reason he disagreed with the Mississippi Supreme Court’s
affirmance of Flowers’s conviction was that “this is a highly unusual
case.”616 The message sent by both the majority and concurring opin-
ions is that prosecutors may continue to create all-white juries using
peremptory challenges and excuse them with race-neutral pretexts as
long as they don’t do it as blatantly as Evans did. Indeed, as Justice
Thomas noted in dissent, Evans himself (or a substitute prosecutor) is
free to try Flowers a seventh time617 — and to assemble an all-white
jury in order to secure a death sentence.
Second, Justice Kavanaugh implied that the decision to intervene in
this extraordinary case was based on the need to make the system
appear legitimate. Discussing Batson, Justice Kavanaugh pointed out
that a significant motivation for that decision was to “enhance public
confidence in the fairness of the criminal justice system.”618 In other
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
dominance” in death penalty cases); Douglas L. Colbert, Challenging the Challenge: Thirteenth
Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 CORNELL L.
REV. 1, 110–15 (1990) (discussing empirical evidence demonstrating the partiality of the all-white
jury); James Forman, Jr., Essay, Juries and Race in the Nineteenth Century, 113 YALE L.J. 895,
909–10 (2004) (explaining the decades-long practice in which “[a]ll-white juries punished black
defendants particularly harshly, while simultaneously refusing to punish violence by whites”); Sheri
Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611, 1616–49 (1985) (sum-
marizing data demonstrating persistent biases of white jurors and all-white juries). The racial
composition of the jury did make a difference to Flowers’s fate. See Epps, supra note 596 (noting
that in one of Flowers’s trials, an African American juror was the “lone holdout,” causing a mistrial).
614 See Flowers v. Mississippi, 139 S. Ct. 2228, 2251 (2019).
615 Id. at 2235.
616 Id. at 2251 (Alito, J., concurring).
617 Id. at 2274 (Thomas, J., dissenting).
words, in applying Batson to Flowers’s case, the Court merely fixed an

exceptional glitch in the system that allowed a wayward prosecutor to
veer too far from the norm and required a correction so that the system
could proceed as usual.
Finally, by affirming Batson’s focus on discriminatory intent,619 the
Court permitted the continued prosecutorial use of race-neutral pretexts
for peremptory challenges in order to produce all-white juries. Justice
Kavanaugh insisted that the Court’s decision made no change in the
legal standard: “[W]e break no new legal ground. We simply enforce
and reinforce Batson by applying it to the extraordinary facts of this
case.”620 Thus, aware of the persistent constitutional problem posed by
all-white juries, the Court took no new steps to solve it.
The Court’s opinion bears all the anti-abolitionist methods that char-
acterize post–Civil Rights Era constitutional jurisprudence.621 By
focusing on black people’s individual civil right to serve on juries, the
Court ignored the systematic use of all-white juries in preserving white-
dominated carceral punishment. By requiring proof of discriminatory
intent on the part of prosecutors, it upheld their ability to assert race-
neutral pretexts for striking black prospective jurors. By reversing
Flowers’s conviction because the prosecutor’s extraordinary discrimina-
tion amounted to a system malfunction, it appeared to have solved the
problem peremptory challenges posed in Flowers’s case without any
need to change the jury selection system. The majority compromised
abolitionist ideals for fear of the justice those ideals demanded —
abolishing the state’s use of all-white juries to condemn black defend-
ants to death. Despite alluding to the Reconstruction Amendments’
abolitionist objectives, the Court’s opinion is actually anti-abolitionist.
2. Applying Abolition Constitutionalism to Flowers. — We should
applaud the reversal of Flowers’s unjust conviction. But we should ask
why it took six trials and a divided Supreme Court decision to halt, at
least temporarily, such an egregious pattern of prosecutorial abuse. How
could a majority of justices on the Mississippi Supreme Court and two
U.S. Supreme Court Justices have determined there was no constitu-
tional violation in the face of such glaring discrimination? Why, despite
the Court’s finding of blatant bias, hasn’t Curtis Flowers been released
from Parchman State Prison?622 Why is Doug Evans free to try Flowers
again for capital murder and to continue to use peremptory challenges
to exclude black jurors? An abolition constitutionalism would address
all these questions.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
619 Id. at 2251 (“All that we need to decide [under Batson] . . . is that all of the relevant facts and
circumstances taken together establish . . . discriminatory intent.”).
620 Id. at 2235.
621 See supra section II.D, pp. 71–93.
622 See Zhu, supra note 15.
Abolition constitutionalism would dig deeper into the historical rela-

tionship of jury selection, race, and white supremacy to understand the
significance of juries for antebellum abolitionists. As an initial matter,
abolishing slavery was entwined with the question of juries and jury
selection because abolition meant ending enslavers’ juries. Under the
slavery system, only white people were entitled to serve on juries.623
Enslaved people had no legal rights at all: they were denied the ability to
bring legal claims, to testify in court against white people, or to be jurors.624
Slavery thus eliminated the authority of black people to judge criminal
culpability and simultaneously stripped them of the right to have their cul-
pability fairly judged. In short, the all-white juries of the slavery system
were a mechanism used by whites to uphold the system of slavery. An
abolition constitutionalism would therefore view all-white juries as poten-
tial violations of the Thirteenth Amendment’s eradication of slavery.625
Next, an abolition constitutionalism would pay careful attention to
how abolitionists and Radical Republicans viewed juries and where
juries fit in the Fourteenth Amendment’s protections. Although the
right to a jury trial had been a central aspect of citizenship since the
colonial era, the federal fugitive slave laws made juries especially salient
to abolitionists.626 Specifically, juries were critical to abolitionists’ ef-
forts to thwart the threat fugitive slave laws posed to free blacks and
formerly enslaved blacks who escaped to freedom.627 For example,
black people who were accused of being fugitives had no right to contest
the allegation in court and prove they were born free or had been eman-
cipated.628 A large number of abolitionists therefore hoped to sabotage
the laws’ general implementation, and all at least endeavored to “protect
free blacks from being kidnapped and falsely claimed as fugitives.”629
A major battle over the Fugitive Slave Act of 1850 centered on an
unsuccessful abolitionist campaign to include a provision requiring jury
trials in cases where alleged fugitive slaves were returned to slavehold-
ers.630 On October 3, 1850, the abolitionist paper the Emancipator &
Republican condemned the first “slave catching” proceeding in New
York that returned an alleged fugitive slave to bondage without a jury
trial: “It is the first arrest under the new law. The poor slave was not
allowed to open his mouth. The proceedings were summary and quick,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
623 See Colbert, supra note 613, at 21–22.
624 See id. at 18–22.
625 See id. at 108 (“There is a link between the all-white jury and the badge of slavery that denied
African-Americans recourse to legal justice. . . . The all-white jury’s origins are clearly traceable to
the institutionalization of slavery . . . .”).
626 See Forman, supra note 613, at 899–909.
627 See id. at 899.
628 Id. at 900.
629 See id. at 899.
630 See id. at 902–09.
and a freed man once more became a slave. There is a cold hearted
cruelty about this proceeding that chills the blood.”631 For many
abolitionists, the failure to require a jury trial in fugitive slave cases
represented the encroachment of the Slave Power into northern states
and a violation of states’ rights.632
Some abolitionists responded by calling for northern juries to nullify
the law by refusing to convict both northerners charged with crimes for
protecting fugitives and fugitives charged with crimes for resisting
enslavement.633 At an abolitionist meeting at Boston’s Faneuil Hall,
William Spooner declared: “The law will be resisted, and if the fugitive
resists, and if he slay the slave hunter, or even the marshal, and if he
therefor be brought before a jury of Massachusetts men, that jury will
not convict him.”634 For abolitionists, then, juries were critical to efforts
to resist enslavement and stop the expansion of the slavery system.
During the Reconstruction period, juries embodied another crucial
dimension of abolitionist work. With the reinstatement of the white
supremacist regime in the South, all-white juries became an instrument
of white terror.635 Maintaining the slavery-era rule that only white peo-
ple were entitled to serve on juries was a way for the Jim Crow state to
reenslave newly freed blacks. As Professor James Forman summarizes:
“All-white juries punished black defendants particularly harshly, while
simultaneously refusing to punish violence by whites, including Ku Klux
Klan members, against blacks and Republicans.”636 Rather than aban-
don juries, congressional Republicans responded to their repressive use
in the South by providing for full participation by black citizens on
juries. Congress passed legislation to guarantee the rights of blacks to
serve on juries and barred from eligibility for jury service anyone who
had conspired to deny black persons their civil rights.637 The concern
of abolitionists and Radical Republicans with the role all-white juries
played in supporting the racial order they sought to abolish should also
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
631 Id. at 907 (quoting Slave Catching in New York, EMANCIPATOR & REPUBLICAN, Oct. 3,
1850, at 3).
632 Id. at 908.
633 Id. at 909.
634 Id. (citing Speech of William Spooner, on Taking the Chair in Faneuil Hall, Nov. 6th, 1850,
EMANCIPATOR & REPUBLICAN, Nov. 14, 1850, at 4); see also Paul Butler, Essay, Racially Based
Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 702–03 (1995).
635 See Forman, supra note 613, at 914–16.
636 Id. at 909–10.
637 See Civil Rights Act (Ku Klux Klan Act) of 1871, ch. 22, § 5, 17 Stat. 13, 15 (codified as
amended in 42 U.S.C. § 1985 (2012)) (requiring prospective jurors take an oath, under threat of
perjury, that they have never conspired to deprive other citizens of their civil rights); Civil Rights
Act of 1875, ch. 114, § 4, 18 Stat. 335, 336–37 (providing that no citizen may be disqualified from
jury service “on account of race, color, or previous condition of servitude,” id. at 336).
shape our interpretation of the Fourteenth Amendment’s mandate for

equal protection.638
The history of abolitionists’ approach to the jury as both an anti-
slavery and proslavery entity suggests that abolition constitutionalism is
attentive to the relationship juries continue to play in either dismantling
or promoting white supremacy. At issue in Flowers was the prosecuto-
rial use of all-white juries as a systematic instrument of racist carceral
punishment.639 An abolitionist approach to the Equal Protection Clause
would protect black defendants like Flowers from the unequal imposi-
tion of capital punishment by all-white juries.
At a minimum, this approach would rescind the Washington v. Davis
requirement that defendants produce evidence of discriminatory in-
tent.640 The institutionalized practice of empaneling all-white juries to
deny black people equal protection does not rely on the prejudiced mo-
tivations of individual prosecutors, and contesting this denial of equal
protection should not depend on proving prosecutors’ motivations.
Ending the discriminatory intent rule would also do away with validat-
ing peremptory challenges that have a discriminatory impact as long as
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
638 See Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017) (describing the threat historically
posed by all-white juries to “the promise of the [Fourteenth] Amendment and to the integrity of the
jury trial”); Forman, supra note 613, at 909–10.
639 See Flowers v. Mississippi, 139 S. Ct. 2228, 2238–41 (2019). In his dissenting opinion, Justice
Thomas pointed to the defense attorney’s conduct during voir dire, noting she used exclusionary
techniques similar to Evans. See id. at 2260–61 (Thomas, J., dissenting). Justice Thomas also noted
the mistakes made by Flowers’s counsel and emphasized the fact that the defense and prosecution
asked a “similar number of questions to the jurors they peremptorily struck.” Id. at 261. During
oral argument, Justice Thomas asked a question for the first time in three years: whether Flowers’s
lawyer struck any potential jurors and what race they were. See Transcript of Oral Argument at
57, Flowers, 139 S. Ct. 2228 (No. 17-9572); Adam Liptak, Clarence Thomas Breaks a Three-Year
Silence at Supreme Court, N.Y. TIMES (Mar. 20, 2019), https://nyti.ms/2UMRRQC
[https://perma.cc/UD5W-5VPW]. Justice Sotomayor pointed out there was only one black juror
remaining after Evans struck all the rest. Transcript of Oral Argument, supra, at 57. Just as Justice
Thomas has wrongly equated government race-conscious efforts to address institutionalized racism
with Jim Crow laws to maintain white supremacy, see Adarand Constructors, Inc. v. Peña, 515 U.S.
200, 240 (1995) (Thomas, J., concurring in part and concurring in the judgment), he has failed to
see the distinction between state exclusion of black jurors aimed at creating all-white juries and
individual defendants’ attempts to counter jury discrimination. Last Term, Justice Thomas as-
serted yet another false equation in his concurring opinion in Box v. Planned Parenthood of Indiana
and Kentucky, Inc., 139 S. Ct. 1780 (2019). See id. at 1784, 1792–93 (Thomas, J., concurring).
Justice Thomas suggested that states may be constitutionally permitted to ban abortions sought
because of the race, sex, or disability of a fetus because such bans “promote a State’s compelling
interest in preventing abortion from becoming a tool of modern-day eugenics.” Id. at 1783. By
equating abortion rights with eugenics, Justice Thomas ignored how abortion bans and eugenicist
policies both seek to control reproductive decisionmaking for repressive political ends. See
ROBERTS, KILLING THE BLACK BODY, supra note 77, at 3–7.
640 See 426 U.S. 229, 239 (1976).
prosecutors can provide race-neutral reasons.641 Changing the meaning

of discrimination from racial bias to racist impact would stop the cha-
rade Batson generated in allowing prosecutors to continue to empanel
all-white juries based on pretextual race-neutral explanations.642 In ad-
dition, an abolition constitutionalism would develop alternative doc-
trines for testing the constitutionality of jury composition based on
evidence of systemic discrimination rather than individual prosecutorial
intent.643
This analysis suggests, moreover, that an abolition constitutionalism
would consider ending peremptory challenges altogether. In dissent,
Justice Thomas correctly pointed out that black defendants can use per-
emptory challenges to “strik[e] potentially hostile white jurors,”644 so
Batson may inevitably deprive black defendants of this tool against
prejudiced deliberations. But, as shown in Flowers’s six trials and in
countless other criminal trials of black defendants, prosecutors’ ability
to use peremptory challenges to rig juries against black defendants far
outweighs black defendants’ use of juror strikes to create a fair trial.645
The main threat to black defendants is not the “bad apple” visibly hos-
tile juror but the way juries made up of ordinary white people tend to
reach unjust convictions.646 Both the majority and dissenting Justices
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
641 See id. at 241. By finding race-neutral excuses for striking blacks from the jury, Justice
Thomas erased the overwhelming evidence from Flowers’s trials that Evans wanted to generate an
all-white jury and was very successful at it. Flowers, 139 S. Ct. at 2261–63 (Thomas, J., dissenting).
642 Batson v. Kentucky, 476 U.S. 79, 94 (1986).
643 Devlon-Ross, supra note 604 (describing the Racial Justice Act passed in North Carolina in
2009 as “a radical approach to ending discriminatory jury selection by allowing defendants to use
statistical evidence of racial bias in capital-murder trials throughout North Carolina and the region
in order to claim racial bias in their own particular capital-murder trials”); see Editorial, They Were
Freed from Death Row. Republicans Put Them Back., N.Y. TIMES (Aug. 23, 2019)
https://nyti.ms/2Pbt1vt [https://perma.cc/2M4T-JAUV] (criticizing North Carolina’s Republican
legislature for repealing the Racial Justice Act in 2013); see also Colbert, supra note 613, at 32–39
(underscoring how the Thirteenth Amendment’s framers intended “the amendment’s guarantee of
freedom [to mean] more than merely freeing the slaves from bondage,” id. at 36).
644 See Flowers, 139 S. Ct. at 2274 (Thomas, J., dissenting).
645 See, e.g., David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials:
A Legal and Empirical Analysis, 3 U. PA. J. CONST. L. 3, 96–100 (2001) (conducting a study of
comparative effectiveness of prosecutors and defense counsel in the use of peremptories in capital trials
in Philadelphia and documenting the “greater effectiveness of the Commonwealth in excluding its
prime targets [young black men and women] from the juries that were finally seated,” id. at 100). For
a discussion of abolitionist organizing strategies to shrink the resources and power of the prosecuting
office, see Abolitionist Principles & Campaign Strategies for Prosecutor Organizing, COMMUNITY
JUST. EXCHANGE, https://www.communityjusticeexchange.org [https://perma.cc/U6PE-BWF4].
646 The Court recently considered a case involving a “bad apple” juror who made racist com-
ments about the defendant’s Mexican heritage during jury deliberation. See Peña-Rodriguez v.
Colorado, 137 S. Ct. 855, 862 (2017). In a 5-3 decision, the Court held the Sixth Amendment right
to a fair trial requires an exception to the rule against impeaching jurors “where a juror makes a
clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal
defendant.” Id. at 869. The Court limited the exception to statements showing that the racial
stereotype or racial animus was “a significant motivating factor” in a juror’s decision to convict,
in Flowers examined the prosecutor’s actions only for conduct indicating

a belief that black jurors would be “partial to the defendant because of
their shared race”647 — a false assumption rejected by Batson. They
did not consider the reality that white jurors historically have presumed
the guilt of black defendants because of racism.648
Finally, an abolition constitutionalism would recognize that Evans’s
interest in an all-white jury was to secure the execution of Flowers
regardless of his culpability for the crime.649 An abolitionist reading of
the Constitution would not permit the Court to allow Flowers to un-
dergo another capital trial after reversing his conviction. Rather, the
state’s dogged campaign to obtain and uphold Flowers’s death sentence
is an opportunity to revisit the constitutionality of capital punishment
and to abolish it.650 As discussed in section I.B.1(c), the death penalty
can be traced back to the gruesome punishments inflicted on enslaved
people and the spectacle lynchings carried out during the Jim Crow era.
State executions only survive today because they continue to represent
white domination over black people. Even if the Supreme Court inval-
idated all-white juries, the death penalty would still function as a form
of racialized subjugation. Prison abolitionists understand capital pun-
ishment as a key aspect of the prison industrial complex that contributes
to the enforcement of racial subordination and support for racial
capitalism.651 This understanding helps clarify why state executions
should cease altogether. Abolitionists would link the prosecutor’s use of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
noting “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the
no-impeachment bar to allow further judicial inquiry.” Id.
647 Batson, 476 U.S. at 97; see Flowers, 139 S. Ct. at 2241; id. at 2269 (Thomas, J., dissenting).
648 See, e.g., Colbert, supra note 613, at 22 (explaining how white juries were inclined to convict
black defendants because they were black); see also Shamena Anwar et al., The Impact of Jury Race
in Criminal Trials, 127 Q.J. ECON. 1017, 1048–49 (2012) (finding that while “conviction rates for
black and white defendants are similar when there is at least some representation of blacks in the
jury pool . . . in the absence of such representation, black defendants are substantially more likely
to be convicted,” id. at 1048).
649 The Court found that Evans intentionally sought to empanel an all-white jury. Flowers, 139
S. Ct. at 2246 (“The State’s relentless, determined effort to rid the jury of black individuals strongly
suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and
ideally before an all-white jury.”) Though it is theoretically possible that Evans himself cared about
Flowers’s culpability, all-white juries have been historically used as a tool of racial violence and
racial intimidation to such an extent that commentators have explored “the inherent injustice of the
all-white jury.” Colbert, supra note 613, at 4 & n.6; see also Forman, supra note 613, at 915–16
(discussing the historical importance of securing the right for black people to sit on juries). It seems
exceedingly unlikely, then, that Evans sought an all-white jury for any other purpose.
650 The Court has questioned the constitutionality of capital punishment in the past and should do
so again. See Coker v. Georgia, 433 U.S. 584, 599–600 (1977) (holding that the death penalty for rape
violated the Eighth Amendment prohibition on cruel and unusual punishment); Furman v. Georgia,
408 U.S. 238, 239–40 (1972) (striking down the death penalty as unconstitutional as applied).
651 See McLeod, Grounded Justice, supra note 91, at 1216–17 (describing a “death-sentencing
regime that impacts African Americans and white defendants differently on the basis of their race”);
supra pp. 40–42.
unscrupulous tactics, including convening all-white juries to condemn

Flowers to death for killing three white people, to the slave executions
and lynching that were the death penalty’s predecessors. In addition to
reversing Flowers’s conviction and requiring states to take steps to dis-
mantle the all-white jury system, an abolition constitutionalism would
abolish the death penalty.
III. TOWARD A NEW ABOLITION CONSTITUTIONALISM

We can see constitutional history after the Reconstruction
Amendments as a contest — in legislatures, courts, and the streets —
over interpreting the Amendments as either moving toward or retreating
from slavery’s eradication. Because we can read the Reconstruction
Constitution as incorporating the abolition constitutionalism of antislav-
ery activists,652 we should reciprocally interrogate both the
Constitution’s relevance to today’s prison abolition movement and the
movement’s relevance to interpreting the Constitution’s provisions. Just
as antebellum abolitionists broke from the dominant interpretation of
the Constitution as a proslavery document,653 so too prison abolitionists
need not be shackled to the prevailing constitutional jurisprudence in
advancing the unfinished freedom struggle.
Engaging the relationship between prison abolition and the
Reconstruction Amendments, as well as the abolition constitutionalism
that inspired them, raises several generative questions. Can we apply
prison abolitionist theories to the Constitution’s text not only to con-
demn it but also to use it instrumentally to achieve abolitionist objec-
tives? Can we advocate for a reading of the Constitution that both
aligns with the abolition constitutionalism advanced by antislavery
activists and attends to contemporary forms of white supremacy and
racial capitalism? In the process, might today’s abolitionists imagine a
new abolition constitutionalism that helps to chart the path toward a
society without prisons?
A. Approaching the Constitution Instrumentally
One reason some prison abolitionists eschew any reliance on the
Reconstruction Constitution to make claims or envision change is that
they see the text itself as accommodating slavery. Many abolitionists
explicitly condemn the Thirteenth Amendment’s Punishment Clause for
allowing the reenslavement of black people by incarcerating them for
committing crimes.654 “One of the big reforms that sold us out was the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Thirteenth Amendment” is a common accusation among prison aboli-

tionists.655 The Reconstruction Constitution “just modified” slavery; it
did not abolish it.656
According to this view, the Thirteenth Amendment was part and
parcel of the white supremacist backlash against Emancipation. Its very
text contained the seeds of reinstating the formerly enslaved to servitude
from the moment Congress enacted it. Congress gave the impression of
radically incorporating black people into citizenship when in fact it was
preparing a way to legally deny them their rights. “The Thirteenth
Amendment ensnares as it emancipates,” Professor Joy James writes.657
“In fact, it functions as an enslaving anti-enslavement narrative.”658 The
symbolic power of the Reconstruction Constitution as an abolitionist
text that installed freedom thus adds to the Constitution’s ability to sus-
tain a false narrative of the United States as a bastion of freedom and
equality.659 Embracing such a document would therefore only contrib-
ute to its anti-abolitionist performance. Thus, although many prison
abolitionists describe their work as continuing the struggle antebellum
freedom fighters and abolitionists began, they frame it in opposition to
the Reconstruction Constitution.660
A second reason some prison abolitionists reject the Constitution is
that they view the entire U.S. legal system as subordinating black people
and preserving the racial capitalist order.661 This position relies not so
much on the Amendments’ precise language as on the political role the
Constitution, as a central part of the state’s legal apparatus, plays in
upholding the carceral regime. According to these theorists, states use
the law to perpetuate their own institutions, and constitutional change
within formal legal processes occurs only to maintain the look of legiti-
macy.662 If abolition work can only be completely effective “without
involving the state,”663 there may be no role for the Constitution to play.
Indeed, the very project of abolition constitutionalism could be anti-
abolitionist.
James combines both these points by explaining how the
Reconstruction Amendments helped to place the state in opposition to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
655 Profiles in Abolition, supra note 19, at 5:05.
656 Id. at 5:16.
657 James, Democracy and Captivity, supra note 37, at xxii.
658 Id.
659 See, e.g., Rana, supra note 343, at 267 (arguing that the Constitution’s powerful symbolism
has prevented Americans from appreciating the country’s colonial origins).
661 Muntaqim, supra note 37, at 7 (arguing for a view of the “judicial process as part of a gov-
ernmental pogrom to repress dissent to racism . . . [that] continues a long process of racial injustice
built into our nation’s [C]onstitution through the original sanctioning of slavery”).
662 Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. REV. 405, 476–79 (2018).
663 Meiners, supra note 37.
the abolition of white supremacy.664 She contrasts the abolition democ-

racy advanced by black radicals with the “advocacy democracy”
promoted by a “U.S. conservative-centrist-progressive” political system
that “works for reforms with an anti-black racism that structured de-
mocracy’s evolution.”665 James connects the founding of the nation to
the Reconstruction Amendments, understanding both as part of a
continuum of anti-abolitionist developments: “an anti-abolitionist revo-
lutionary war that blocked the expansion of the 1772 Somerset ruling
(emancipating a black slave brought to Britain from colonial America);
an anti-abolitionist 13th [A]mendment that codifies slavery to prison;
an anti-abolitionist 14th [A]mendment that transfers black political per-
sonhood (and social standing) to corporations.”666
Moreover, the courts, which have been the traditional venue for
making constitutional claims, are the very state agents that have evis-
cerated efforts to install a more radical Constitution and have been
hostile to an abolitionist approach.667 Radicals of color have criticized
the presumption in constitutional theory that “minorities are best pro-
tected with national oversight, rights-based frameworks, and judicial
solicitude.”668 For this reason, many abolitionists have repudiated U.S.
constitutional rights altogether and instead contest U.S. carceral policies
without reference to rights or as violations of international human
rights.669 Even claims that rested in part on the U.S. Constitution have
primarily relied on international human rights law, such as the petition
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
664 See James, Democracy and Captivity, supra note 37, at xxviii–xxix.
665 James, 7 Lessons, supra note 42.
666 Id.
667 See supra section II.D, pp. 71–93; cf. Kate Andrias, Building Labor’s Constitution, 94 TEX.
L. REV. 1591, 1594 (2016) (noting the practical reasons, including the Court’s skepticism of certain
constitutional interpretations, the labor movement has retreated from making arguments based on
the U.S. Constitution).
668 Blackhawk, supra note 290, at 1797 (arguing that “[i]ntegrationist, rights-based frameworks”
threaten Native tribal sovereignty, id. at 1798). See generally KEISHA N. BLAIN, SET THE
WORLD ON FIRE: BLACK NATIONALIST WOMEN AND THE GLOBAL STRUGGLE FOR FREE-
DOM (2018); NELSON A. DENIS, WAR AGAINST ALL PUERTO RICANS: REVOLUTION AND
TERROR IN AMERICA’S COLONY (2015); PENIEL E. JOSEPH, STOKELY: A LIFE (2014); PENIEL
E. JOSEPH, WAITING ’TIL THE MIDNIGHT HOUR: A NARRATIVE HISTORY OF BLACK
POWER IN AMERICA (2007); DONNA JEAN MURCH, LIVING FOR THE CITY: MIGRATION, ED-
UCATION, AND THE RISE OF THE BLACK PANTHER PARTY IN OAKLAND, CALIFORNIA (2010)
(all discussing radical black and Puerto Rican political theory and activism that did not rely on
national oversight).
669 See Akbar, supra note 662, at 447; Ajamu Baraka, Malcolm X and Human Rights in the Time
of Trumpism: Transcending the Master’s Tools, THE ABOLITIONIST, Spring 2017, at 15, https://
abolitionistpaper.files.wordpress.com/2017/12/abby-27-english-final.pdf [https://perma.cc/LB45-
DWXJ] (arguing that human rights are a “de-colonial fighting instrument”); Isaac Onitveros, Not
Without a Fight: The San Francisco 8, THE ABOLITIONIST, Spring 2007, at 5, 10, https://
abolitionistpaper.files.wordpress.com/2011/01/abolitionist-issue-6-spring-2007-english.pdf [https://
perma.cc/6SER-CY4Z] (noting that Black Panthers contextualized U.S. human rights violations
within a larger international human rights context).
brought to the United Nations by the Civil Rights Congress in 1951 that
charged the U.S. government with racism and genocide.670
This Foreword takes seriously the question whether engaging with
the Constitution, which from its installation has served settler-
colonialism, slavery, and racial capitalism, can be useful to an abolition-
ist movement. As discussed in Part II, the dominant reading of both the
original Constitution and Reconstruction Amendments has been anti-
abolitionist.671 There are good reasons, however, for prison abolitionists
to engage abolition constitutionalism. First, it is significant that the
original Constitution that incorporated slavery was rewritten to abolish
it in response to a hard-fought freedom struggle. Many antislavery
activists, like Frederick Douglass, professed an alternative reading of
the Constitution — an abolition constitutionalism.672 We can see the
Reconstruction Amendments as a compromised embodiment of the un-
finished revolution for which abolitionists today continue to fight. Like
antebellum abolitionist theorizing, prison abolitionism can craft an
approach to engaging with the Constitution that furthers radical change.
Second, prison abolitionists acknowledge that building a prisonless
society is a long-term project involving incremental achievements. As
Critical Resistance puts it, abolition “means developing practical strate-
gies for taking small steps that move us toward making our dreams real
and that lead us all to believe that things really could be different.”673
Some of those steps will entail engaging with the state.674 In demanding
state action that promotes prison abolition, abolition activists can use
constitutional provisions instrumentally to assert and sometimes win
their claims.
Finally, prison abolitionists need not let the Constitution compromise
their principles or aspirations. While taking inspiration from antislavery
abolitionists, we can approach the Constitution differently. For exam-
ple, although the Radical Republicans opposed chattel slavery and con-
vict leasing, they did not abolish imprisonment as a punishment for
crimes. Today’s prison abolitionists are dealing with a different
beast — the prison industrial complex and other modern carceral logics,
supported by advanced forms of racial capitalism. There are also new
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
670 CIVIL RIGHTS CONG., WE CHARGE GENOCIDE vii (William L. Patterson ed., Int’l
Publishers 1970) (1951); see DAVIS, ABOLITION DEMOCRACY, supra note 17, at 79 (discussing
lawsuits brought by the Center for Constitutional Rights, which relied on human rights doctrine to
contest the detention of so-called enemy combatants, as an “example of the resistance to the Bush
Administration’s policies and practices”).
671 See supra Part II, pp. 49–105.
672 See Moses, supra note 338, at 76–77; supra pp. 50–51 (discussing the existence and influence
of early abolitionist constitutional interpretations).
673 What Is the PIC? What Is Abolition?, supra note 21.
674 Harsha Walia & Andrew Dilts, Dismantle and Transform: On Abolition, Decolonization, and
Insurgent Politics, 1 ABOLITION 12, 14–15 (2018).
theories that explain and contest modern modes of carceral punishment,

including black radical philosophy, critical race theory, black feminist
theory, and intersectionality.675 Davis frames prison abolition as a
continuation of the antislavery movement, but she notes an important
distinction between the two: “[T]he abolition of slavery was accom-
plished only in the negative sense,” she writes.676 “In order to achieve
the comprehensive abolition of slavery — after the institution was ren-
dered illegal and black people were released from their chains — new
institutions should have been created to incorporate black people into
the social order.”677 Prison abolitionists can affirm the aim of antebel-
lum abolitionists to radically dismantle the institution of slavery and
also demonstrate, with the benefit of historical hindsight and sustained
abolitionist theorizing, that this objective requires abolishing prisons
altogether by replacing them with new institutions that incorporate
black people fully into a free society.
The goals of freedom and equal citizenship have been “the heart of
black Americans’ fidelity to the Constitution.”678 In a previous analysis
of black people’s approach to the Constitution, I distinguished between
a presumption of inherent loyalty to the Constitution and the instrumen-
tal use of the Constitution to achieve a more important objective.679 I
argued that black people have historically expressed fidelity to the
Constitution because it offers “practical advantages” to their struggle for
equal citizenship.680 Under this instrumental approach, equal citizen-
ship does not arise from the Constitution; it precedes it. The
Constitution is not the standard of justice we should faithfully uphold;
equal citizenship is. We know what democracy means not by immersing
ourselves in the Constitution’s language but by imagining what it would
mean for black people to be treated like free and equal human beings.
The purpose of constitutional fidelity is to insist that constitutional in-
terpretations abide by this higher standard of justice. “In short, fidelity
is a means, not an end, and it is a means to an end that is more funda-
mental than the Constitution.”681 Abolition constitutionalism, unlike
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
675 See, e.g., CARRUTHERS, supra note 26, at 8–12 (discussing black queer feminist theory);
DELGADO & STEFANCIC, supra note 445, at 3–11 (discussing critical race theory); Akbar, supra
note 662, at 412–13 (discussing radical racial justice movements); Kimberlé Crenshaw, Mapping the
Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L.
REV. 1241, 1242–44 (1991) (discussing the intersectionality of racism and sexism); see also sources
cited supra note 32.
677 Id.; cf. supra pp. 62–63 (discussing the unsuccessful Freedmen’s Bureau).
678 Roberts, Blacks’ Fidelity, supra note 38, at 1762.
679 Id.
680 Id.
681 Id.; cf. Richard Delgado, Rodrigo’s Ninth Chronicle: Race, Legal Instrumentalism, and the
Rule of Law, 143 U. PA. L. REV. 379, 388 (1994) (advocating for “[l]egal instrumentalism,” an
approach that treats law as “a tool that is useful for certain purposes and at certain times”).
other constitutional fidelities, aims not at shoring up the prevailing con-

stitutional reading but at abolishing it and remaking a polity that is
radically different.
Prison abolitionists can follow this tradition by instrumentally using
the Constitution to build a society based on principles of freedom, equal
humanity, and democracy — a society that has no need for prisons. In
this section, I explore how prison abolitionists might instrumentally use
the Constitution to make persuasive arguments for change and to
achieve nonreformist abolitionist reforms that would eradicate or shrink
discrete components of the carceral punishment system, mitigate the suf-
fering caused by carceral conditions, and create the conditions needed
for a society without prisons. I also consider the possibility that, in the
process, prison abolitionists might imagine a new constitutionalism
based on the society they are working to create. In other words, a new
abolition constitutionalism would not serve to sustain and improve the
U.S. state and its carceral systems. Rather, it would serve to guide and
govern a society in the making where prisons are obsolete.
1. Holding Courts and Legislatures to an Abolitionist Reading. —
Black Panther Party activist and author George Jackson, a leading fig-
ure in the prison abolition movement,682 called for “the gracious, sensi-
tive, brainy types . . . to hold the legal pigs to the strictest interpretation
of the Constitution possible.”683 Surely Jackson wasn’t upholding the
U.S. Constitution as a beacon for a radical movement or expressing faith
in judges to apply it for the sake of black freedom. Indeed, he was
forced into the courtroom he then used as a platform to put American
justice on trial.684 But Jackson didn’t throw out the Constitution either.
Rather, Jackson was deploying it strategically as a legal, ideological, and
rhetorical tactic to expose the hypocrisy of his imprisonment and the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
682 See BERGER, CAPTIVE NATION, supra note 18, at 91–95; DAVIS, ABOLITION
DEMOCRACY, supra note 17, at 21.
683 Letter from George Jackson to Fay Stender (Mar. 31, 1970), in JACKSON, supra note 18, at
231. The Black Panthers similarly emphasized legal accountability by confronting police officers
harassing a black man and demanding, law books in hand, that the “pigs” abide by the letter of the
law. David Ray Papke, The Black Panther Party’s Narratives of Resistance, 18 VT. L. REV. 645,
674–75 (1994).
684 See BERGER, CAPTIVE NATION, supra note 18, at 92; see also Haywood Burns, Can a Black
Man Get a Fair Trial in this Country?, N.Y. TIMES MAG., July 12, 1970, at 46,
https://nyti.ms/1Glxvi4 [https://perma.cc/6GL9-SDPN] (“[M]any revolutionary defendants have
ceased to look upon the courtroom as an arena in which a contest for and against their exoneration
is waged, but rather as a platform to expose the failings of the legal system, to educate and politicize
a larger public — to indict the system.”); Joyce M. Bell, Kangaroo Court: The Black Power Move-
ment and the Courtroom as a Site of Resistance (unpublished manuscript) (on file with the Harvard
Law School Library) (arguing that in the 1970s Black Power defendants and their lawyers used
courtrooms as sites of resistance to expose and condemn the normative legitimacy of the political
order and legal system).
prison system’s reenslavement of black people.685 Jackson’s demand for

the “strictest interpretation of the Constitution possible”686 might be
seen as holding courts to the abolitionist reading of the Constitution en-
visioned by the antislavery activists who inspired the Reconstruction
Amendments.687
Beginning in the 1960s, prisoners have asserted legal claims based
on the Constitution to challenge their incarceration and the conditions
of their confinement.688 The 1964 case Cooper v. Pate,689 which held
that prisoners could bring constitutional challenges against prison offi-
cials in federal court,690 fueled a prisoners’ rights movement that relied
largely on civil rights lawsuits.691 According to Professor Robert T.
Chase, incarcerated people immediately took advantage of the oppor-
tunity to bring constitutional claims: “[T]he number of prisoners’ rights
suits dramatically increased from 218 in 1966 to almost 18,477 in 1984.
Between 1970 and 1996 the number of prisoner civil rights lawsuits
leaped an astonishing 400 percent.”692 Prison activists in the 1960s and
1970s mobilized around the prisons-as-slavery metaphor, but did not see
it as reason to reject using constitutional provisions as a means to ad-
vance their activism.693
The prisoners’ rights movement achieved a major victory in the class
action lawsuit Ruiz v. Estelle,694 filed in 1972, which sought numerous
changes in the Texas prison system, including alleviating overcrowding,
improving health care, increasing access to attorneys, and ending the
practice of having prisoners act as guards, which had created a system
of sexual violence within prisons.695 In 1980, two years after the trial
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
685 On the concept of prisons as slavery in black prison radicalism, see BERGER, CAPTIVE
NATION, supra note 18, at 177–222.
686 Letter from George Jackson to Fay Stender (Mar. 31, 1970), in JACKSON, supra note 18, at 231.
687 See Bell, supra note 684, at 10–12 (describing the courtroom strategy of “righteous contempt”
that Black Power defendants and their lawyers used to “challenge[] the legitimacy of the court and
court officers,” id. at 10). In 1970, defendants in People v. Shakur, popularly known as the Panther
21, wrote a memo to presiding Judge Murtagh contesting his threat to hold them in contempt and
asking: “How can we be in contempt of a court that is in contempt of its own laws? How can you be
responsible for ‘maintaining respect and dispersing justice’ when you have dispensed with justice, and
you do not maintain respect for your own Constitution?” Letter from the Panther 21 to Judge Murtagh
(Mar. 7–21, 1970), in THE BLACK PANTHERS SPEAK 210 (Philip S. Foner ed., 1970).
688 See Robert T. Chase, We Are Not Slaves: Rethinking the Rise of Carceral States Through the
Lens of the Prisoners’ Rights Movement, 102 J. AM. HIST. 73, 73–74 (2015). For additional sources
on the prisoners’ rights movement, see sources cited supra note 18.
689 378 U.S. 546 (1964) (per curiam).
690 Id. at 546.
691 Chase, supra note 688, at 77.
692 Id.
693 See id. (describing prisoners’ use of the First, Fifth, Eighth, and Fourteenth Amendments);
id. at 80–83 (describing the prisons-as-slavery organizing principle).
694 503 F. Supp. 1265 (S.D. Tex. 1980), aff’d in part, vacated in part, 679 F.2d 1115 (5th Cir. 1982),
amended in part, vacated in part, 688 F.2d 266 (5th Cir. 1982).
695 Id. at 1275–77, 1292, 1295–97, 1297 n.64, 1307, 1367.
began — making it “at that time the largest and longest civil rights case
in the history of American jurisprudence”696 — Chief Judge Justice
found the Texas prison system unconstitutional.697 However, in the dec-
ades since Ruiz, the Texas prison system has continued to cage increas-
ing numbers of people under conditions that have not changed dramat-
ically.698 The history of instrumental litigation of constitutional claims
by the prisoners’ rights movement demonstrates both the utility of mak-
ing constitutional law part of abolitionist activism and the inadequacy
of relying on legal institutions to create and enforce
effective remedies.
Prison abolitionists still frequently make constitutional arguments
from behind bars.699 Many prisoners writing in the publications of
Critical Resistance, including its journal, The Abolitionist, state their
claims in the language of constitutional rights. They have argued, for
instance, that the parole system violates the Due Process Clause,700 or
that prosecutors’ exclusion of black people from juries violates the Sixth
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
696 Chase, supra note 688, at 79.
697 Ruiz, 503 F. Supp. at 1383–84; see also JONATHAN SIMON, MASS INCARCERATION ON
TRIAL 7–9 (2014) (discussing the 2011 Supreme Court case Brown v. Plata, 563 U.S. 493 (2011),
which declared conditions in California prisons unconstitutional and imposed a population cap on
the state prison system).
698 PERKINSON, supra note 52, at 4; id. at 325–26 (describing how conditions within the prison
at issue in Ruiz “remained abysmal” nearly twenty years after Judge Justice’s ruling, id. at 326). In
1999, Ruiz came before the court again, and Judge Justice found that the prison’s practices still
amounted to “systemic constitutional violations.” Ruiz v. Johnson, 37 F. Supp. 2d 855, 888 (S.D.
Tex. 1999), rev’d and remanded sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001).
699 See generally, e.g., MUMIA ABU-JAMAL, JAILHOUSE LAWYERS (2009) (compiling writings
from individuals incarcerated in the twentieth and twenty-first centuries describing resistance from
within the carceral system, including through civil rights suits). On contemporary prison writings,
see MUMIA ABU-JAMAL, WRITING ON THE WALL: SELECTED PRISON WRITINGS OF MUMIA
ABU-JAMAL (Johanna Fernández ed., 2015) (collecting the extensive writings of a death row pris-
oner on the carceral system’s effects within and outside of prison); FOURTH CITY: ESSAYS FROM
THE PRISON IN AMERICA 1 (Doran Larson ed., 2013) (presenting “the widest sampling to date of
first-person, frontline witness to the human experience of mass incarceration in the United States”);
FROM THE PLANTATION TO THE PRISON: AFRICAN-AMERICAN CONFINEMENT LITERA-
TURE (Tara T. Green ed., 2008) (collecting essays that examine African American confinement lit-
erature); IMPRISONED INTELLECTUALS: AMERICA’S POLITICAL PRISONERS WRITE ON LIFE,
LIBERATION, AND REBELLION (Joy James ed., 2003) (compiling letters from prison and other
writings critiquing the carceral system); PRISON WRITING IN 20TH-CENTURY AMERICA (H.
Bruce Franklin ed., 1998) (sampling writings by twentieth-century American prisoners describing
the oppressive nature of the prison experience); THE NEW ABOLITIONISTS: (NEO)SLAVE NAR-
RATIVES AND CONTEMPORARY PRISON WRITINGS, supra note 37, at xiii (collecting “writings
by modern and contemporary imprisoned authors” critiquing the violent and exploitative carceral
system).
700 See Pablo Agrio, Attainder in California: Alive and Well, THE ABOLITIONIST, Summer 2006,
at 4, https://abolitionistpaper.files.wordpress.com/2011/01/abolitionist-issue-4-summer-
2006-english.pdf [https://perma.cc/7T3X-K9XU] (arguing that California’s practice of categorically
withholding parole violates due process rights).
Amendment.701 They have encouraged citizens to learn and understand

their full rights under the Constitution,702 and have supported suing prison
officials for constitutional violations.703 For these prison activists, assert-
ing their constitutional rights constitutes both a pragmatic use of legal tools
to win release or change carceral conditions and an empowering rhetorical
demand for legal recognition.704 As George Jackson’s appeal to “brainy
types”705 suggests, lawyers and legal scholars can play an important role in
helping to articulate and present the demands of people subjected to car-
ceral punishment for strict adherence to the Constitution’s abolitionist
directives — even when they anticipate failure.706
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
701 See Demontrell Miller, Juries and “Justice,” THE ABOLITIONIST, Spring 2017, at 13,
https://abolitionistpaper.files.wordpress.com/2017/12/abby-27-english-final.pdf [https://perma.cc/
9FBE-E4CV] (arguing that the exclusion of black people from juries violates the Sixth Amendment
right to an impartial jury).
702 See Letter to the Editor, THE ABOLITIONIST, Winter 2006, at 11, https://
abolitionistpaper.files.wordpress.com/2011/01/abolitionist-issue-5-winter-2006-english.pdf [https://
perma.cc/YL8S-RME6] (calling for activists to “read and understand the State and Federal Consti-
tutions” so that people know their rights). In 1970, the striking prisoners at California’s Folsom
State Prison issued a “Manifesto of Demands and Anti-Oppression Platform” that declared: “In our
peaceful efforts to assemble in dissent as provided under the nation’s United States Constitution,
we are in turn murdered, brutalized, and framed on various criminal charges because we seek the
rights and privileges of all American people.” BERGER, CAPTIVE NATION, supra note 18, at 1
(quoting The Folsom Prisoners Manifesto of Demands and Anti-Oppression Platform, in IF THEY
COME IN THE MORNING . . . : VOICES OF RESISTANCE 74 (1971); see also Miller, supra note 701
(arguing that the Black Panther Party was correct that “[i]f the [C]onstitution was applied
‘honestly’ . . . the prisons would not be so filled with Black bodies and Black suffering”).
703 See, e.g., Sitawa Nantambu Jamaa et al., Statement of California Prisoner Representatives on
Second Anniversary of Ashker v. Brown Settlement, THE ABOLITIONIST, Winter 2018, at 2,
https://abolitionistpaper.files.wordpress.com/2018/07/abby_issue_28_eng_color-web.pdf [https://
perma.cc/RAH4-7ANW] (celebrating civil rights suit settlement and calling for ongoing work);
Quinnell Avery Johnson III, An Interface for Politically Minded Prisoners, The
ABOLITIONIST, Fall 2018, at 14, https://abolitionistpaper.files.wordpress.com/2018/12/abby_
30_eng-reduced.pdf [https://perma.cc/4FY7-7NGT] (discussing his pro se § 1983 lawsuit and the
utility of using shared constitutional violations as a way to unite and politicize prisoners).
704 Cf. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 6–8 (1991) (discussing
how constitutional law can be used to highlight unnoticed aspects of racially complex problems);
Crenshaw, supra note 450, at 1364–66 (arguing that rights rhetoric was politically effective as an
“organizing feature of the civil rights movement,” id. at 1365).
705 Letter from George Jackson to Fay Stender (Mar. 31, 1970), in JACKSON, supra note 18, at 231.
706 For example, in the 1970s, the National Conference of Black Lawyers (NCBL) served as the
“legal arm of the revolution” by representing radical black defendants such as Angela Davis, Assata
Shakur, and prisoners in the Attica Rebellion. Bell, supra note 684, at 1. NCBL attorneys also
participated in amicus briefs filed in the Supreme Court in the landmark affirmative action case,
Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Id. NCBL explained its role
in the preamble to its 1968 constitution: “Where the Black revolution requires the development of
unique and unorthodox legal remedies to insure the effective implementation of the just demands
of Black people for legal, economic and social security and protection, we must aid it.” Declaration
of Commitment and Concern, NAT’L CONF. BLACK LAW., https://www.ncbl.org/?page_id=1377
[https://perma.cc/A6K6-T2RT]; cf. ALEC KARAKATSANIS, USUAL CRUELTY: THE COMPLICITY
OF LAWYERS IN THE CRIMINAL INJUSTICE SYSTEM 146–47, 160 (2019) (blaming the emergence
of the prison industrial complex in part on the failure of lawyers to vigorously defend the constitu-
tional rights of criminal defendants). On the significance of failure to abolitionist struggle, see
2. Nonreformist Abolitionist Reforms. — Prison abolition is a long-

term project that requires strategically working toward the complete
elimination of carceral punishment. No abolitionist expects all prison
walls to come tumbling down at once. Yet abolitionist philosophy is
defined in contradistinction to reform: reforming prisons is diametrically
opposed to abolishing them.707 Efforts to improve the fairness of car-
ceral systems and to increase their efficiency or legitimacy only
strengthen those systems and divert attention from eradicating them.
How can abolitionists take incremental steps toward dismantling pris-
ons without falling into reformist traps? Prison abolitionists resolved
this quandary with the concept of “non-reformist reforms — those
measures that reduce the power of an oppressive system while illumi-
nating the system’s inability to solve the crises it creates.”708 By engag-
ing in nonreformist reforms, abolitionists strive to make transformative
changes in carceral systems with the objective of demolishing those sys-
tems rather than fixing them.709 They recognize that these reforms alone
are inadequate; indeed, achieving these piecemeal changes in the prison
industrial complex reveals the necessity of its total eradication. To be
abolitionist, reforms must shrink rather than strengthen “the state’s ca-
pacity for violence.”710
In addition, nonreformist reforms must facilitate the goal of building
a society without prisons. As migrant justice activist Harsha Walia ex-
plains, “[a]rguably every reform entrenches the power of the state be-
cause it gives the state the power to implement that reform. But from
an ethical orientation towards emancipation, I think a guiding question
on non-reformist reforms is: Is it increasing the possibility of free-
dom?”711 A critical test for engaging with the U.S. Constitution is
whether there are particular ways an abolition constitutionalism facili-
tates — rather than constrains — imagining a society where prisons are
obsolete.
In using the Constitution to support legal changes that move toward
abolition, prison abolitionists can consider a variety of forums. Courts
are not the only venues where abolitionists can make constitutional
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Andrew Dilts, Justice as Failure, 13 LAW CULTURE & HUMAN. 184, 190 (2017) (describing justice
“as failure and as an ongoing practice of freedom conditioned by that failure”).
708 Berger, Kaba & Stein, supra note 45.
709 See Walia & Dilts, supra note 674, at 15; see also McLeod, Envisioning Abolition Democracy,
supra note 30, at 1616; McLeod, Grounded Justice, supra note 91, at 1207–18.
710 Berger, Kaba & Stein, supra note 45; see also Mariame Kaba, Opinion, Police “Reforms” You
Should Always Oppose, TRUTHOUT (Dec. 7, 2014), https://truthout.org/articles/police-reforms-you-
should-always-oppose [https://perma.cc/XL8K-HR58].
711 Walia & Dilts, supra note 674, at 15.
claims and forge an abolition constitutionalism.712 Like the judiciary,

Congress and state governments are bound by the Constitution,713 and,
should those bodies adopt an abolitionist reading of the Constitution,
they would have substantial power to enact the changes that interpre-
tation would require.714 Indeed, the Thirteenth Amendment itself
empowers Congress to enforce its provisions, anticipating the inade-
quacy of case-by-case judicial eradication of slavery.715
Abolition constitutionalism could support many of the nonreformist
reforms in which prison abolitionists and other activists are already en-
gaged, including efforts to stop prison expansion by opposing prison
construction or shutting down prisons that already exist;716 end police
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
712 Cf. SOPHIA Z. LEE, THE WORKPLACE CONSTITUTION: FROM THE NEW DEAL TO THE
NEW RIGHT 3–5 (2014) (examining the role of administrative agencies as venues for constitutional
civil rights activism); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE
COURTS 7 (2000) (exploring whether and how the locus of constitutional interpretation should be
shifted away from the courts); Sotirios A. Barber & James E. Fleming, The Canon and the
Constitution Outside the Courts, 17 CONST. COMMENT. 267, 268 (2000) (arguing that, rightfully,
“the canon of the Constitution is broader than the canon of the judicially enforceable Constitution”);
Blackhawk, supra note 290, at 1799 (noting that the judiciary has as yet refused to enshrine Indian
law into the constitutional canon, and that Indian law has instead been defended by Congress and
the Executive, although it may someday “find a more natural fit within [that] canon”).
713 See U.S. CONST. art. VI, cl. 2 (making the Constitution “the supreme Law of the Land . . . [the]
Laws of any State to the Contrary notwithstanding”); id. cl. 3 (requiring “Senators and Represent-
atives . . . and the Members of the several State Legislatures, and all executive and judicial Officers,
both of the United States and of the several States” to “be bound by Oath or Affirmation, to support
this Constitution”); see also 5 U.S.C. § 3331 (2012) (requiring members of Congress to “swear (or
affirm) that [they] will support and defend the Constitution of the United States”).
714 See U.S. CONST. art. I, § 1 (vesting “[a]ll legislative Powers” in Congress); id. art. I, § 8 (enu-
merating many of the powers of Congress); id. amend. XIII, § 2 (granting Congress “power to
enforce [the Thirteenth Amendment] by appropriate legislation); id. amend. XIV, § 5 (granting
Congress similar power to enforce the Fourteenth Amendment); Gregory v. Ashcroft, 501 U.S. 452,
457 (1991) (“The States . . . retain substantial sovereign authority under our constitutional system.”);
THE FEDERALIST NO. 45, at 285, 289 (James Madison) (Clinton Rossiter ed., 2003) (“The powers
reserved to the several States will extend to all the objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people . . . .”); Amar, supra note 414, at 155 (“[S]tate
lawmakers typically may support the Constitution’s mandates using their general police power un-
der their state constitutions, and in keeping with a specific invitation in Article VI’s Supremacy
Clause and Supremacy Oath.”).
715 See Darrell A.H. Miller, The Thirteenth Amendment and the Regulation of Custom, 112
COLUM. L. REV. 1811, 1835, 1841 (2012); see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440
(1968) (“Surely Congress has the power under the Thirteenth Amendment rationally to determine
what are the badges and the incidents of slavery, and the authority to translate that determination
into effective legislation.”); Tsesis, Civil Rights Approach, supra note 288, at 1777 (“[T]he
[Thirteenth A]mendment permits Congress to protect persons against arbitrary treatment that in-
trudes on liberty interests.”); Tsesis, Furthering American Freedom, supra note 414, at 310–11
(“[T]he Amendment’s second section enables Congress to pass federal legislation that is rationally
related to ending any remaining badges and incidents of servitude, such as present-day trafficking
of foreign workers as sex slaves and coerced domestic servants.” Id. at 310).
716 See Berger, Kaba & Stein, supra note 45; see also, e.g., About Us, NO NEW JAILS NYC,
https://nonewjails.nyc [https://perma.cc/BTY4-5FTF]; Shut Down Berks Campaign, JUNTOS,
stop-and-frisk practices;717 eliminate the requirement of money bail to

release people charged with crimes;718 repeal harsh mandatory
minimums, even for violent crimes;719 give amnesty to individual pris-
oners, including political prisoners and prisoners believed to have killed
in self-defense;720 and decriminalize drug use and possession and other
nonviolent conduct.721 To the extent that such practices perpetuate slav-
ery in violation of the Thirteenth Amendment, Congress, state
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
http://vamosjuntos.org/Shut-Down-Berks [https://perma.cc/4CV2-FLCS] (advocating for the clo-
sure of Berks County Detention Center, which holds immigrants); Stop Neighborhood Jail
Expansion in NYC, CRITICAL RESISTANCE, http://criticalresistance.org/stop-neighborhood-jail-
expansion-in-nyc [https://perma.cc/VAU7-2Q6B].
717 See, e.g., Daniel Bergner, Is Stop-and-Frisk Worth It?, THE ATLANTIC (Apr. 2014),
https://www.theatlantic.com/magazine/archive/2014/04/is-stop-and-frisk-worth-it/358644 [https://
perma.cc/H9TN-8GGR] (reflecting on the history of stop-and-frisk and describing current activism
to end the practice); Phillip Atiba Goff, Opinion, On Stop-and-Frisk, We Can’t Celebrate Just Yet,
N.Y. TIMES (Jan. 7, 2018), https://nyti.ms/2FbWgFj [https://perma.cc/3KKQ-S4BX] (calling for ef-
forts to “discover the full scope of [the] consequences [of stop-and-frisk]”); Abraham Gutman,
Opinion, The Solution to Stopping Stop-and-Frisk Problems in Philly: Abolish It, PHILA.
INQUIRER (June 8, 2018, 2:21 PM), https://www.inquirer.com/philly/opinion/commentary/stop-
and-frisk-philadelphia-abolish-terry-v-ohio-anniversary-20180608.html [https://perma.cc/JT37-
6UTP] (advocating for the abolition of stop-and-frisk).
718 See Berger, Kaba & Stein, supra note 45 (noting abolitionist efforts to “eradicate cash bail”);
see also, e.g., Jesse McKinley & Ashley Southall, Kalief Browder’s Suicide Inspired a Push to End
Cash Bail. Now Lawmakers Have a Deal., N.Y. TIMES (Mar. 29, 2019), https://nyti.ms/2YHoaD8
[https://perma.cc/T6SW-WP9C]; Samantha Melamed, Philly DA Larry Krasner Stopped Seeking
Bail for Low-Level Crimes. Here’s What Happened Next., PHILA. INQUIRER (Feb. 19, 2019),
https://www.inquirer.com/news/philly-district-attorney-larry-krasner-money-bail-criminal-justice-
reform-incarceration-20190219.html [https://perma.cc/SAL5-H9R8]; Abolishing Bail, PRISON
CULTURE (Aug. 9, 2017), http://www.usprisonculture.com/blog/2017/08/09/abolishing-bail [https://
perma.cc/DR62-R39H] (excerpting from a speech on the efforts of the National United Committee
to Free Angela Davis to advocate for the abolition of the bail system); Host Teach-Ins About Bail
and Pretrial Detention this Fall, PRISON CULTURE (Sept. 20, 2017), http://www.
usprisonculture.com/blog/2017/09/20/host-teach-ins-about-bail-and-pretrial-detention-this-fall
[https://perma.cc/C5LE-QFPV].
719 See, e.g., The Coalition to Abolish Death by Incarceration, DECARCERATE PA, https://
decarceratepa.info/CADBI [https://perma.cc/Q7EJ-FA59] (describing a coalition of organizations
dedicated to abolishing “death by incarceration,” or mandatory life without parole sentences); see
also Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2019, PRISON POL’Y
INITIATIVE (Mar. 19, 2019), https://www.prisonpolicy.org/reports/pie2019.html [https://perma.
cc/8VLA-BNM5] (noting that “at the state and local levels, far more people are locked up for violent
and property offenses than for drug offenses alone” and that “[t]o end mass incarceration, reforms
will have to go further than the ‘low hanging fruit’ of nonviolent drug offenses”).
720 See, e.g., Berger, Kaba & Stein, supra note 45 (noting popular campaigns to release individual
prisoners); Owen Daugherty, Cyntoia Brown Granted Clemency by Tennessee Governor, THE HILL
(Jan. 7, 2019, 12:33 PM), https://thehill.com/blogs/blog-briefing-room/news/424171-cyntoia-brown-
granted-clemency-by-tennessee-governor [https://perma.cc/NQA6-EB5Y] (highlighting the role
that activists played in pressuring the governor to grant clemency); Hundreds March in Philly to
“Free Mumia Now!,” WORKERS WORLD (Apr. 30, 2019), https://www.workers.org/2019/04/30/
hundreds-march-in-philly-to-free-mumia-now [https://perma.cc/D7V8-7T83] (describing a rally cel-
ebrating court victory for incarcerated prison abolition activist Mumia Abu-Jamal).
721 See Berger, Kaba & Stein, supra note 45 (“[A]bolitionists have been at the forefront of the
[campaign for] decriminalization of drug use.”); see also, e.g., Jasmine Garsd, Should Sex Work Be
legislatures, and city assemblies, as well as courts, are empowered by

the Federal Constitution722 and state constitutions723 to enact these non-
reformist reforms.
Prison abolitionists have also organized to hold police and other law
enforcement agents accountable for violence and rights violations. One
of their major victories is the Reparations Ordinance, passed by the
Chicago City Council on May 6, 2015.724 The ordinance was a long-
delayed response to the Chicago Police Department’s systematic inflic-
tion of torture and other forms of violence against African American
suspects under the command of Jon Burge.725 After decades of agita-
tion, the activists won a package of measures, including monetary
compensation for the living survivors, tuition-free education at the City
Colleges for survivors and their families, and a public memorial.726
Mariame Kaba calls the Reparations Ordinance “an abolitionist docu-
ment” because it “did not rely on the court, prison, and punishment
system[s] to try to envision a more expansive view of justice.”727 The
activists deliberately refused to seek criminal prosecution of the officers
involved or civil damages against the City of Chicago.728 Instead, they
pressured the City Council to redress their claims through a radically
democratic process, led by survivors and grassroots organizers and oc-
curring outside formal legal institutions, that included street protest,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Decriminalized? Some Activists Say It’s Time, NPR (Mar. 22, 2019, 2:43 PM),
https://www.npr.org/2019/03/22/705354179/should-sex-work-be-decriminalized-some-activists-say-
its-time [https://perma.cc/P4MH-S7X7] (highlighting activists’ efforts to decriminalize sex work);
Invest-Divest, MOVEMENT FOR BLACK LIVES, https://policy.m4bl.org/invest-divest
[https://perma.cc/4SGA-L35X] (calling for decriminalization of drug offenses and prostitution
offenses as a racial justice issue).
722 See sources cited supra notes 713–714 and accompanying text.
723 See Goodwin, Thirteenth Amendment, supra note 174, at 983–87 (discussing the potential
enactment of state “legislation to ban slavery, including for conviction of a crime,” id. at 983).
724 Chicago, Ill., Substitute Resolution R2015-256 (May 6, 2015); see also Natalie Y. Moore, Pay-
back, MARSHALL PROJECT (Oct. 30, 2018, 6:00 AM), https://www.themarshallproject.
org/2018/10/30/payback [https://perma.cc/S8C4-ZBVM].
725 See supra p. 24.
726 Chicago, Ill., Substitute Resolution R2015-256 (May 6, 2015); see McLeod, Envisioning
Abolition Democracy, supra note 30, at 1627 (discussing the five million dollars in reparations for
survivors); Roberts, Torture, supra note 86, at 243–44 (discussing the ways in which police torture
has been used to reinforce racial hierarchies); CHI. TORTURE JUST. MEMORIALS,
https://www.chicagotorture.org [https://perma.cc/J24W-QDWK].
727 Dan Sloan, A World Without Prisons: A Conversation with Mariame Kaba, LUMPEN MAG.
(Apr. 7, 2016), http://www.lumpenmagazine.org/a-world-without-prisons-a-conversation-with-
mariame-kaba [https://perma.cc/J33M-YTHU].
728 See McLeod, Envisioning Abolition Democracy, supra note 30, at 1613. Some survivors did
file civil lawsuits against Burge. See, e.g., Sam Roberts, Jon Burge, Ex-Commander in Chicago
Police Torture Cases, Dies, N.Y. TIMES (Sept. 20, 2018), https://nyti.ms/2OGhZK7
[https://perma.cc/SF2Y-9ADB].
partnership with international human rights organizations, and media

education.729
3. Treating the Symptoms While Ending the Disease. — While
complete prison eradication is the ultimate goal of the abolitionist pro-
ject, before that aim comes to fruition abolitionists might consider invok-
ing the Constitution instrumentally to mitigate the harms inflicted
by carceral punishment. As law student, activist, and former prisoner
Angel Sanchez puts it, abolitionists must treat prison like a “social cancer:
we should fight to eradicate it but never stop treating those affected
by it.”730
The Thirteenth Amendment could facilitate a number of
nonreformist reforms. For example, abolitionists might consider taking
up the constitutional arguments put forth by numerous scholars
who have posited that the Thirteenth Amendment prohibits exploita-
tive treatment of incarcerated people.731 Legal scholars have also
made strong constitutional arguments against the shackling of incarcer-
ated people during labor and delivery732 and against solitary
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
729 See McLeod, Envisioning Abolition Democracy, supra note 30, at 1624–26; G. Flint Taylor,
The Long Path to Reparations for the Survivors of Chicago Police Torture, 11 NW. J. L. & SOC.
POL’Y 330, 341–47 (2016); Joey L. Mogul, The Struggle for Reparations in the Burge Torture Cases,
RACE RACISM & L., https://racism.org/index.php/articles/law-and-justice/criminal-justice-and-
racism/134-police-brutality-and-lynchings/2005-the-struggle-for-reparations-in-the-burge-torture-
cases [https://perma.cc/J2X5-HWHY].
730 Angel E. Sanchez, In Spite of Prison, in Developments in the Law — Prison Abolition, 132
HARV. L. REV. 1650, 1652 (2019).
731 See, e.g., Ghali, supra note 170, at 610 (arguing that the Thirteenth Amendment, properly
interpreted, does not preclude prisoners from litigating claims of sexual slavery); Raghunath, supra
note 412, at 398 (arguing that consistency with Fifth and Eighth Amendment jurisprudence requires
interpretation of the Thirteenth Amendment to prohibit involuntary servitude for all but “those
inmates who . . . have been . . . sentenced” to forced labor); Marion, Note, supra note 412, at 215
(arguing that the current “system of private, unpaid use of labor [in private prisons] too closely
resembles the slave system that the Thirteenth Amendment sought to abolish” to be constitutionally
permissible, despite the Amendment’s exception for criminal punishments). Numerous legal schol-
ars have applied the Thirteenth Amendment to contest a variety of unjust state and private insti-
tutions and practices, including abortion restrictions, domestic violence, worker exploitation, and
racial gerrymandering, on the grounds that they constitute prohibited forms of involuntary servi-
tude or badges of slavery. See, e.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment
Defense of Abortion, 84 NW. U. L. REV. 480, 483–84, 486–93 (1990); Joyce E. McConnell, Beyond
Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 YALE J.L. &
FEMINISM 207, 251–53 (1992); Patricia Okonta, Note, Race-Based Political Exclusion and Social
Subjugation: Racial Gerrymandering as a Badge of Slavery, 49 COLUM. HUM. RTS. L. REV. 254,
257 (2018); see also Pope, supra note 286 (manuscript at 2).
732 See Ocen, supra note 187, at 1287–310; see also CAROLYN SUFRIN, JAILCARE: FINDING
THE SAFETY NET FOR WOMEN BEHIND BARS 7–8, 51–54, 234 (2017) (relating the constitutional
history of access to medical treatment in prisons); Alexandria Gutierrez, Sufferings Peculiarly Their
Own: The Thirteenth Amendment, in Defense of Incarcerated Women’s Reproductive Rights, 15
BERKELEY J. AFR.-AM. L. & POL’Y 117, 155–67 (2013) (arguing that the Thirteenth Amendment
protects incarcerated women’s right to abortion).
confinement.733 Efforts to end the collateral consequences of incarcera-

tion, such as restrictions on voting rights, exclusion from public housing
and other government benefits, and imposition of monetary sanctions,
can also find support in the Thirteenth Amendment’s abolition of
slavery.734 Professor William Carter lays out a framework for defining
modern badges and incidents of slavery that looks to “the connection
the group to which the plaintiff belongs or that Congress seeks to protect
has to the institution of chattel slavery” and “the connection the
complained of injury or proscribed condition has to the institution of
chattel slavery.”735 Thus, when numerous “racialized policies,” including
those inflicted as a result of a criminal conviction, create “a permanent
caste distinction of . . . magnitude and impermeability . . . [they] amount
to a badge or incident of slavery.”736 Systematic exclusion of former
prisoners from labor and housing markets,737 for example, deprives
them of full rights of citizenship, amounting to an incident of slavery.738
Notably, Congress has the authority to pass legislation under the
Thirteenth Amendment to end practices that were instituted after the
Civil War to reinstall white supremacy, such as monetary sanctions,
forced prison labor, and felon disenfranchisement.739
4. Creating the Conditions for a Society Without Prisons. — Finally,
prison abolitionists are dedicated to working within carceral society to
“build models today that can represent how we want to live in the fu-
ture” and to start creating a radically different society where prisons are
unimaginable.740 We can use constitutional support to demand the
building blocks needed for this construction project — for example,
legislation that transfers funds currently devoted to carceral systems,
such as police, prisons, detention centers, and foster care, to community-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
733 See, e.g., Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. PA. J.
CONST. L. 115, 116–17 (2008) (arguing that prolonged solitary confinement “constitutes cruel and
unusual punishment and violates the due process rights of prisoners,” id. at 117).
734 See William M. Carter, Jr., Class as Caste: The Thirteenth Amendment’s Applicability to Class-
Based Subordination, 39 SEATTLE U. L. REV. 813, 825–27 (2016); Taja-Nia Y. Henderson, The
Ironic Promise of the Thirteenth Amendment for Offender Anti-Discrimination Law, 17 LEWIS &
CLARK L. REV. 1141, 1173–77 (2013). See generally THE PROMISES OF LIBERTY: THE HISTORY
AND CONTEMPORARY RELEVANCE OF THE THIRTEENTH AMENDMENT (Alexander Tsesis
ed., 2010) (collecting essays about the Thirteenth Amendment’s historical foundations and its rele-
vance to contemporary legal landscapes).
735 Carter, supra note 734, at 825.
736 Id.
737 See Ifeoma Ajunwa & Angela Onwuachi-Willig, Combating Discrimination Against the
Formerly Incarcerated in the Labor Market, 112 NW. U. L. REV. 1385, 1394 (2018).
738 Cf. Henderson, supra note 734, at 1173–77.
739 See id. at 1173; see also, e.g., Voting Rights Restoration Efforts in Florida, BRENNAN CTR.
FOR JUST. (May 31, 2019), https://www.brennancenter.org/analysis/voting-rights-restoration-
efforts-florida [https://perma.cc/A2UU-T7PP] (describing Florida’s constitutional amendment to
restore voting rights to citizens with former felony convictions).
740 What Is the PIC? What Is Abolition?, supra note 21.
based efforts to meet people’s needs and resolve social conflicts nonvio-
lently. Alexander Lee, founder and director of the Transgender, Gender
Variant & Intersex Justice Project, argues that prison abolitionists will
have to form “prickly coalitions” with people outside the movement who
are engaged in providing “housing, healthcare, and other essentials [that]
are the basis from which a world without prisons will be made
possible.”741 Such coalitions that help to build a new society can be
guided by abolitionist constitutional principles and requirements.742
B. Imagining a Freedom Constitutionalism
Abolitionists always have their eyes set on a future they are in the
process of creating. At the very same time they are deconstructing struc-
tures inherited from the past, they are constructing new ones to support
the future society they envision. Abolitionists are engaged in a collective
project of radical speculative imagination — what Rodríguez calls
“[i]nsurgent abolitionist futurity.”743 If anything, it is the innovative ra-
ther than the destructive that marks abolitionist thinking. We should
understand abolition not as the “elimination of anything but . . . as the
founding of a new society.”744 The relationship between prison abolition
and the Constitution, then, should be seen less as the condemnation of
our existing abolition constitutionalism and more as the genesis of a
new one.
A new abolition constitutionalism could seek to abolish historical
forms of oppression beyond slavery, including settler colonialism, patri-
archy, heteronormativity, ableism, and capitalism, and strive to disman-
tle systems beyond police and prisons, including foster care, regulation
of pregnancy, and poverty.745 It could extend beyond the United States’
borders to challenge U.S. deportation policies and U.S. imperialism and
to connect to freedom struggles around the world.746 The purpose of a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
741 Lee, supra note 260, at 112.
742 See, e.g., West, supra note 408, at 146, 154–55 (arguing that the abolitionist history of the
Equal Protection Clause includes the “subsidiary” right “to be free of those conditions which, if
unchecked by the state, generate separate sovereignties, including, at least, a right to be free of
private violence and extreme material deprivation” and that “the state has an affirmative duty to
protect our natural rights to physical security and economic participation,” id. at 146).
743 Rodríguez, supra note 29, at 1607.
744 Moten & Harney, supra note 258, at 114.
745 See, e.g., DAVIS, ABOLITION DEMOCRACY, supra note 17, at 41 (linking the growing female
incarceration rate to the “disestablishment of the welfare system”); Dorothy Roberts & Lisa Sangoi,
Black Families Matter: How the Child Welfare System Punishes Poor Families of Color, THE
APPEAL (Mar. 26, 2018), https://theappeal.org/black-families-matter-how-the-child-welfare-
system-punishes-poor-families-of-color-33ad20e2882e [https://perma.cc/VP2F-AEF3] (discussing
foster care abolition).
746 See BEYOND WALLS AND CAGES: PRISONS, BORDERS, AND GLOBAL CRISIS 1–15 (Jenna
M. Loyd et al. eds., 2012) (highlighting the connections between immigration and penal policies);
MARTHA D. ESCOBAR, CAPTIVITY BEYOND PRISONS: CRIMINALIZATION EXPERIENCES OF
new abolition constitutionalism would not be to improve the U.S. state

but to guide and govern a future society where prisons are unimagina-
ble. Its objective could extend beyond abolishing particular systems to
establishing freedom for all — a new freedom constitutionalism.
As antebellum abolitionists and civil rights activists showed, consti-
tutional meaning is shaped by social and political action outside of
traditional forums and separate from Supreme Court decisions.747
Prison abolitionist praxis emphasizes the need to decentralize power
currently residing in privileged institutions in order to empower com-
munities most vulnerable to state violence to make change in nontradi-
tional forums and spaces.748 How that vision will be made real — as a
transformed interpretation of the U.S. Constitution, as an amendment
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
LATINA (IM)MIGRANTS 4 (2016) (describing the “expansion of the carceral society beyond the ter-
ritorial boundaries of the U.S. nation-state”); César Cuauhtémoc García Hernández, Abolishing
Immigration Prisons, 97 B.U. L. REV. 245, 246 (2017) (arguing that immigration imprisonment
should be abolished); Wolff, supra note 181, at 1008–21 (arguing that the Thirteenth Amendment
prohibits U.S. firms from exploiting slave labor in the global economy). I have argued that prison
abolition will envision a radically different relationship between technology and politics, one that
ends prediction as a way of foreclosing social change by collapsing the future into past inequality.
See Roberts, Digitizing, supra note 78, at 1727 (“Abolitionist forecasting technologies must facilitate
envisioning a future that doesn’t replicate the past.”).
747 See, e.g., Andrias, supra note 667, at 1620 (noting that the “Fight for $15” movement “high-
lights the centrality of social and political action to constitutional law”); see also JACK M. BALKIN,
CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 1–16 (2011);
TOMIKO BROWN-NAGIN, COURAGE TO DISSENT: ATLANTA AND THE LONG HISTORY OF
THE CIVIL RIGHTS MOVEMENT 7 (2011) (“What would the story of the mid-twentieth-century
struggle for civil rights look like if legal historians de-centered the U.S. Supreme Court . . . and
instead considered the movement from the bottom up? The answer . . . [is] a picture . . . in which
local black community members acted as agents of change — law shapers, law interpreters, and
even law makers.”); MARK ENGLER & PAUL ENGLER, THIS IS AN UPRISING: HOW NONVIO-
LENT REVOLT IS SHAPING THE TWENTY-FIRST CENTURY xvii (2016) (explaining the potential
power of nonviolence “as a method of political conflict, disruption, and escalation”); JONES, supra
note 327, at 12 (describing how free black people in Baltimore “secured [constitutional] rights
through their performance”); Mark Tushnet, Social Movements and the Constitution, in THE
OXFORD HANDBOOK OF THE U.S. CONSTITUTION 241, 241 (Mark Tushnet et al. eds., 2015) (ex-
amining how “social movements have affected the Constitution’s development and interpretation”).
748 See Joy James, Preface: American Archipelago, in WARFARE IN THE AMERICAN HOME-
LAND: POLICING AND PRISON IN A PENAL DEMOCRACY xii (Joy James ed., 2007) (referring to
the search for “‘home’ — a democratic enclave, communities of resistance, a maroon camp”); James,
7 Lessons, supra note 42 (criticizing reforms that “do not decentralize power or custodial care” and
instead rely on “privileged structures[] that historically create, manage, tabulate, or ameliorate cri-
ses”); see also Blackhawk, supra note 290, at 1798 (noting that “public law scholars have begun to
identify non-rights-based or structural forms of protection for minorities like federalism, unions,
and petitioning”); Daryl J. Levinson, Rights and Votes, 121 YALE L.J. 1286, 1291 (2012) (defining
structural forms of representation to include “not just ballots but also any form of representation or
direct participation in processes of collective decisionmaking”).
to the existing text,749 or as an alternative charter for freedom that

extends beyond the bounds of the U.S. state750 — is yet to be seen.
CONCLUSION
This Foreword makes the case for revitalizing abolition constitutional-
ism by engaging the ideas and activism of antebellum slavery abolitionists
with those of twenty-first-century prison abolitionists. I argue that, despite
the dominant anti-abolition constitutionalism, scholars and activists
should consider the abolitionist history of the Reconstruction Amendments
as a usable past to help move toward a radical future. Today’s activists
can deploy the Constitution’s abolition provisions instrumentally to fur-
ther their aims and, in the process, construct a new abolition constitution-
alism on the path to building a society without prisons. In this way, the
prison abolition movement can reinvigorate abolition constitutionalism.
In turn, prison abolitionists’ rethinking of constitutional meaning can fur-
ther the struggle to create a more humane, free, and democratic world.
In arriving at this conclusion, I grappled with the tension between
two approaches to abolition constitutionalism. On the one hand, there
is good reason to renounce the Constitution because constitutional law
has been critical to upholding the interests of the racial capitalist regime
while advancing legal theories that justify its inhumanity. On the other
hand, there is utility in demanding that the Reconstruction Constitution
live up to the liberation ideals fought for by abolitionists, revolutionar-
ies, and generations of ordinary black people. As they must with respect
to so many aspects of abolition consciousness, those who are building a
society without prisons must engage dynamically with this tension.
Abolitionists can craft an abolition constitutionalism that both condemns
the dominant jurisprudence that legitimizes the carceral state and makes
constitutional claims strategically to help dismantle carceral systems. In
the process, abolitionists might imagine a new freedom constitutionalism
to guide and govern the radically different society they are creating.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
749 See, e.g., Goodwin, Thirteenth Amendment, supra note 174, at 982–83 (discussing an amend-
ment which would strike the Punishment Clause from the Thirteenth Amendment); Jeannie
Alexander, Abolition Statement, ABOLITION (June 18, 2015), https://abolitionjournal.org/jeannie-
alexander-abolition-statement [https://perma.cc/UFJ5-P28F] (proposing that the Thirteenth
Amendment should be amended to read: “Neither slavery nor involuntary servitude, shall exist
within the United States . . . .”).
750 Black radicals have already directly engaged in constructing an alternative constitutionalism.
See Akbar, supra note 662, at 421–22, 426–27 (discussing the Movement for Black Lives’ “A Vision
for Black Lives: Policy Demands for Black Power, Freedom, and Justice,” including demands for
“economic justice, community control, and political power,” id. at 427 (footnotes omitted)); Rana,
supra note 343, at 284–85 (describing the Revolutionary People’s Constitutional Convention, orga-
nized by the Black Panther Party and held in Philadelphia in 1970 with the goal of devising a
“competing constitution” that included expanded socioeconomic rights, reparations, wealth trans-
fers, and changes in police power, id. at 284); Freedom Papers, DREAM DEFENDERS,
https://www.dreamdefenders.org/freedompapers [https://perma.cc/E5PK-7KYJ] (outlining a set of
rights and freedoms not explicitly established in the Constitution).

Dorothy Roberts - Abolition Constitutionalism

Uploaded by

Copyright:

Available Formats

Dorothy Roberts - Abolition Constitutionalism

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dorothy Roberts - Abolition Constitutionalism

Uploaded by

Copyright:

Available Formats

VOLUME 133 NOVEMBER 2019 NUMBER 1

© 2019 by The Harvard Law Review Association

THE SUPREME COURT

1. Holding Courts and Legislatures to an Abolitionist Reading ............................... 110

You have to act as if it were possible to radically transform the world.

I n 1997, Curtis Flowers was charged with murdering four employees

abolition.17 Incarcerated people have rebelled against prisons through

in 1997, the Critical Resistance organizing collective gathered more than

furtively present.”29 Moreover, movements that refer to themselves as

Reconstruction Amendments to today’s political conditions in the ser-

Amendment and carceral punishment — Flowers v. Mississippi — to

I. THE NEW ABOLITIONISTS

speeches,47 video interviews,48 and blogs,49 as well as on social media.50

astounding amount of human confinement should not be seen as an un-

and prison expansion, based on shared assumptions of innate black

In sum, beginning in the 1960s, U.S. policymakers have supported

United States without documentation a crime;84 and militarized border

dehumanizing bodily neglect and abuse committed by police officers and

women for pregnancy-related crimes,93 the disproportionately high

armed groups that entered slaveholding properties and roamed public

necessitated employing armed forces to maintain order among the en-

nation demonstrate that police engage in rampant racial profiling.137

brutality’” because “[i]t is meaningless, as violence is inherent to polic-

Law enforcement agencies nationwide collect and store vast amounts of

import institutionally biased data become a “self-fulfilling feedback

Ruffin v. Commonwealth,168 the Virginia Supreme Court of Appeals af-

laws, apprenticeship laws, criminal penalties for breach of contract, and

wrote.180 By compelling emancipated blacks to work for whites in pay-

Recent investigations by Professors Sarah Haley and Talitha

crime.”204 In a complement to Du Bois’s observations about the eco-

prosecutors,210 and corporate executives211 generally avoid criminal lia-

environmental harms, such as lead-poisoned water in Flint, Michigan,

nearly insurmountable burden on people caught in the carceral web.219

as a receptacle for those forms of punishment considered to be too un-

people’s property.233 As Frederick Douglass observed in 1893, display-

an exception to the law; it was part of the administration of justice and

effectively to contain and control black communities as a result of its

practices.259 Above all, it is their vision of a world without prisons that

people’s basic needs and addressing the causes of interpersonal vio-

capitalism.273 The U.S. capitalist system, which is governed by profit

clinics, and an educational Intercommunal Youth Institute, provide an-

References to completing the unfinished struggles of past abolition

II. ABOLITION AND THE CONSTITUTION

meaning and utility of constitutional law. After the Reconstruction

Constitution remains open to these varying interpretations highlights

B. The Radical History of the Reconstruction Amendments

From the 1830s to the 1850s, abolitionists engaged in an intense —

Second, abolitionists argued that specific constitutional provisions

Even more neglected in constitutional history than these white

Thus, antebellum abolitionist activists, lawyers, and ordinary black

Constitution.339 In his autobiography, Douglass describes his conversion

nascent political power.360 Still, Douglass’s evolving engagement with

1865 to provide education, aid, land, and protection to newly freed

The abolitionist Constitution was forged, as well, by ordinary black

The Reconstruction Constitution, however, was limited in numerous

surrender some of our individual preferences in order to secure

involuntary servitude.395 Many prison abolitionists believe the crime

prison abolitionists today.400 Representative Burton C. Cook of Illinois,

Howe, Congress’s silence regarding Sumner’s objection and the adop-

Amendments’ constitutional imperatives to end enslaving systems, pro-