The Prison Abolitionist Argument for State Power

Franklin Bynum and Tiffany Cabán show that the movement should not eschew power, but seize it.

The first time I ever faced the power of the carceral state in full force was during the October 22, 2011 protests by a coalition of Occupy Wall Street spinoff groups like Occupy the Hood and New York Leftists like the Audre Lorde Project and the Revolutionary Communist Party. I had become a prison abolitionist about a year before then, but on the campus of William & Mary as a white person I was not very exposed to the violence of the state. It really cannot be overstated how terrifying it is to walk down a street where cops are lined up, shoulder-to-shoulder, as far as you can see. I hear one of the Occupy Hood marshals say that they have deployed 80% of the NYPD. Mayor Bloomberg’s personal army was out in full force. While I left unharmed, it had a profound effect on me, the experience carving the reality of the US police state deep into my consciousness.

Fast forward to this year. I am at a NYC DSA event, and run into someone I used to work with at the Consumer Financial Protection Bureau (CFPB). He’s not in DSA, but he came out of curiosity. He introduces me to his friend as “one of the most aggressive interns we have ever had.” Even though I was in civil rather than criminal prosecution, it is still weird for me as a former anarchist and survivor of police brutality to be told I was an “aggressive” agent of the state. Later that night, my friend and DSA comrade Alex asks me, “Do you have any ideas of how to prosecute corporations?” I enthusiastically respond “Yes. Lots.” And thus began the birth of the Economic Justice Demands for Queens DSA’s vetting of District Attorney candidates.

I am a lawyer, and generally I find lawyers (especially in the nonprofit context) to be more of a harm to the Left than a benefit. Law school trains you to conform, to hedge against risk, to compromise, all things that are at odds with any truly socialist movement. Lawyers are also part of the professional class — while many Leftist lawyers make very little since our clients are working class, our degree and training to navigate institutional spaces means most of us can essentially sell out if we are so inclined.

But the one issue where I do wish the Left would listen to lawyers, at least Leftist lawyers, is the law (shocking I know). The law is not written for you to understand. In fact, the law is not written to be clearly understood even by lawyers. Rather the law exists to provide two basic elements to any structure of power: authority and certainty. If you break x law, you face y penalty (certainty) and z person will prosecute you for it (authority).

The U.S. Left, like the U.S. in general, has a libertarian political bend to it. Because of this, the focus is overwhelmingly on the certainty of the law. Creating new civil rights, new causes of action (things to sue over), that’s all about certainty. The only time the Left ever seems to care about authority is when it should be diminished: the police should not be able to seize your stuff on their own authority, the President should not be able to declare war on their own authority, etc.

However, to implement any social change in a society of laws, you need both authority and certainty. We can pass a law to make it illegal for corporations to fire people at-will, but that law will only be as effective as the authority it is tied to. In “Carceral Capitalism,” Jackie Wang illustrates this dynamic with the proposed (certainty-based) reform of bodycams on police officers: “[T]he footage captured by body cams will be used against the people who are being policed and not against the police officers who are legally given discretion to shoot people.” Bodycams misunderstand the problem — the problem is not that we do not have proof that police shoot Black people without justification, the problem is that they have the impunity to do so.

Authority can quite literally be what makes a right exist in practice or not. Can people file lawsuits based on the law? Is there an agency tasked to enforce the law? Does the District Attorney have jurisdiction over it?

You probably know that district attorneys have a lot of power. They decide how criminal law in an area gets enforced. It is and always will be impossible to prosecute all violations of the law, so the choice of which gets prosecuted is also necessarily a choice of what does not get prosecuted.

How does this choice get made? Well there is surprisingly little formal direction other than a vague mission of “justice.” And of course most of us take issue with “justice” being a system of racist mass incarceration.

But racist mass incarceration is just one side of the coin. Because just as reliably as youth of color are being prosecuted for every conceivable infraction and just merely existing, there are corporations not being prosecuted. Corporations responsible for environmental devastation, fraud, theft, and even murder are passed over by District Attorneys inculcated in the white supremacist ideology of broken windows policing and prosecution.

“But of course they are passed over,” you might respond, “The capitalists wrote the laws of this country and they have made sure to stop laws against corporations from getting on the books.” And this is when it’s good to listen to the lawyer. Because the capitalists and their allies are more clever and insidious than that. They understand the need for both authority and certainty.

Take the Queens DA race. Melinda Katz, the front runner competitor to Tiffany Cabán, has received donations from the Real Estate Board of New York and from Daniel Tishman, the CEO of Tishman Realty and Construction Co. With Katz focusing her campaign on a combination of traditional criminal enforcement concerns with progressive policies like not prosecuting marijuana related offenses, it might be puzzling why real estate is going in on this race so hard. The answer is simple: there are laws on the book that could be used against real estate for their gross violations of tenant rights, worker safety, and corruption, they simply just haven’t been enforced. The implicit message of Katz not parroting the calls by Cabán to enforce those laws is to continue the status quo of impunity for the real estate industry in New York City.

I realized all of this from working at the CFPB, one of the few progressive projects of establishing authority in recent U.S. history. The CFPB backed a one-two punch: a powerful statute called UDAAP (unfair deceptive and abusive acts and practices) and independent broad authority to enforce it through powers beyond most civil law enforcement.

It isn’t just happenstance that led the far right from the beginning to go after the CFPB on the basis of its authority. The CFPB’s independent funding, director, and authority to go after the auto industry have all been called unconstitutional by the far right and the finance industry. It’s been referred to as dictatorial and compared to the Soviet Union. It would be an uphill battle to argue that unfair, deceptive, and abusive acts and practices should be legal (though there are those willing to try!). It is much easier to paint the agency prosecuting them as authoritarian.

We can learn from this experience, and the lesson I took from it is we can contest power through authority just as (if not more) effectively than we can through certainty. And there are few with the authority given to District Attorneys.

The Left has begun to understand this in the last few years with campaigns like #ByeAnita in Chicago and Larry Krasner in Philadelphia. They have been very successful, though imperfect, at reducing incarceration and other punitive measures against people of color and the working class. But these campaigns have mostly focused on diffusion of power, taking over DA offices to make them stop actions. I attribute this to that previously mentioned bent in US politics to libertarianism, and in the Left particularly anarchism. While anarchism is obviously a politics practiced by very few even on the Left, the influence it’s had on prison abolition makes it worth analyzing in depth.

On a purely ethical level it is commendable that anarchists were the first to seriously push for prison abolition in the US. While progressives, socialists, and communists all opposed the use of prisons in the US (i.e. George Jackson), they did not call for the abolition of the institution itself. What was wrong about prisons, according to this view, was their use against political prisoners or its racially disparate use against Black, Latinx, and Native people. Groups like Anarchist Black Cross cared about all people in prison at a time when groups like the NAACP were actually trying to put more people in prison (an uncomfortable history that must be engaged with). It is not surprising then that many of those focused on prison abolition like Lorenzo Kom’boa Ervin gravitated to anarchism.

And while there has been some disagreement, there have been anarchists involved in the recent prison abolition inspired District Attorney campaigns. It seems some anarchists have reconciled this as diversity of tactics or harm reduction, that the autonomous organizing needs to happen but as long as the electoral system exists then we might as well elect progressives and socialists to it. And that the “right” way to use any power gained is, simply put, to not use it, to stop as many prosecutions and other punitive measures like cash bail as possible.

What I see these “pragmatic” anarchists frequently misunderstand is that few if any think the state is the end-all, be-all of liberation. From organized labor to tenant organizations, most of the Left is actively invested in work outside the state. What separates anarchists then is their exclusive focus only on diminishing the power of positions of authority. And this is the wrong strategy, both morally and tactically, for the Left. A world without prisons comports with democratic socialism. A world without enforcement of laws does not. From international arbitration to special economic zones to selective exemption of labor laws on behalf of Amazon, a world without law enforcement is very much what we are moving towards under a corporate-controlled economy and society.

Corporations exist solely to serve the interest of profit — it is literally a legal mandate. The state on the other hand is and always has been a contested site of power. Anarchists believe that the state’s power is oppressive for its level of power, especially when interfering with individual liberty. Marxists believe that the state’s power is oppressive because of its class character, that the state is held by whatever force historically is the predominant class in a society (lords and monarchs in feudal societies, capitalists and professionals in capitalist societies, etc.). The liberation of the working class thus comes from taking power through the state rather than diffusing the state’s power. The dominance of the current ruling class can only be undone through using the state against them.

What makes socialists different than the capitalists or feudal lords before them is that we seek rule by society rather than rule over society. When the working class gains control of government and the profit motive is supplanted with social welfare, class distinction itself will deteriorate until we are all equal. Utopian, I know. Maybe impossible. But we are talking about a vision for the future — it is fine to seek what might never be reached. The issue with anarchism, when it comes to prison abolition or any other issue, is it puts the cart before the horse and seeks to destroy one of the most powerful weapons that working people have against their oppressors, ironically in the name of the liberation that they would make practically impossible to reach. If we really believe in the power of the people, if we believe in democracy, we have to trust the people to use the state to liberate themselves.

Like many prison abolitionists, I frequently look to the example of the abolition of slavery in the Southern United States to guide me. The project of Reconstruction was based in the idea that Black people could achieve their own liberation through the use of state power, from the Union Army occupation to the Freedmen’s Bureaus. This was at a time when the U.S. government had even less democracy than it does today. In the end, Reconstruction was derailed because control of the state was never fully vested in the people and instead was controlled by fickle liberals without the courage or desire to radically transform society. We cannot let this happen again. We cannot leave control of the state to those who do not believe a world without prisons is possible. We cannot leave control to corporations who will fill any vacuum in state power with their own dictatorial control. District attorney campaigns provide a local and powerful inroad to sustain the victories that our movement makes and to check the corporate power that would exploit it. We must take this power now.

Feminist socialist writer fighting for econ justice. Views do not represent my firm, DSA, or my cats, who are sadly both ultra leftists.