RESPONDING TO ABOLITION ANXIETIES: A ROADMAP FOR LEGAL ANALYSIS.

AuthorMorgan, Jamelia
PositionAnnual Book Review Issue

WE DO THIS 'TIL WE FREE US. By Mariame Kaba. Edited by Tamara K. Nopper. Chicago: Haymarket Books. 2021. Pp. xxviii, 197. $16.95.

INTRODUCTION

During the uprisings that followed the police killings of George Floyd and Breonna Taylor, abolitionist organizers and groups across the country seized the moment and set forth public demands to end the systems of policing and punishment. (1) Demands to "Abolish the Police" and "Defund the Police" echoed in streets as protestors marched across cities in America. The scale of these mass protests brought the basic components of the abolitionist movement to the attention of the mainstream media. It was in the aftermath of these uprisings that Mariame Kaba's 2021 book We Do This 'Til We Free Us (2) hit like a tidal wave.

Kaba is a longtime abolitionist thinker and organizer, and the book is in many ways a model text for abolitionist analysis and defining abolition praxis. We Do This 'Til We Free Us is divided into several parts and spans thirty-one chapters. Each chapter includes an article, essay, or speech previously published by Kaba and her many coauthors--Kelly Hayes and Andrea Ritchie, to name a few--who are distinguished abolitionist theorists and organizers in their own right. The eclectic mix of writings draws the reader into what can be characterized as different phases in Kaba's personal and political consciousness, both with respect to abolitionist theory and to collective organizing around those principles in local communities. For some readers, the several chapters may seem disconnected, if only because they include work published at different points in time. However, a closer reading reveals not only the presence of unifying themes but also a consistent and unrelenting abolitionist ethic and critique. (3)

Kaba captures the abolitionist critique with bold, insightful declarations: "[A] 'safe' world is not one in which the police keep black and other marginalized people in check through threats of arrest, incarceration, violence and death." (4) Legal scholars have provided helpful theoretical grounding for understanding articulations of abolition. Allegra McLeod explains in her groundbreaking article "Prison Abolition and Grounded Justice" that a "prison abolitionist framework" is a "set of principles and positive projects oriented toward substituting a constellation of other regulatory and social projects for criminal law enforcement." (5) This framework also incorporates an "abolitionist critique"--a structural analysis that can be incorporated into legal advocacy to further abolitionist goals. (6) According to Amna Akbar, an "[ajbolitionist critique attempts to understand the historical, material, and ideological dimensions of how policing shapes the material infrastructure of our political, social, and economic relationships." (7) These critiques inform how abolitionists frame social problems; what they identify as barriers to transformative change; and why abolitionists maintain that "reformist reforms," discussed below, will not succeed in dismantling the prison-industrial complex and other social institutions, structures, and systems that contribute to human oppression, dispossession, exploitation, and deprivation. (8)

The summer of 2020 ushered in a flurry of attention on these systems and the concept of abolition, capturing the eyes of not only the public but also the legal community. More legal organizations are now expressing a commitment to supporting abolitionist movements. And legal organizations founded on commitment to abolitionist goals (9)--like the Abolitionist Law Center, (10) Amistad Law Project, (11) Law for Black Lives, (12) and Movement Law Lab (13)--have secured legal and political victories. (14) And even traditional civil rights and civil liberties organizations like the ACLU (15) and the NAACP Legal Defense Fund (16) have since expressed support for abolition. (17)

This support has not always existed. Abolitionist legal scholars were published long before the summer of 2020, yet these ideas were met with scathing criticism within legal institutions, and by lawyers and institutional actors in particular. (18) As a legal scholar who studies abolition and abolitionist movements, I have personally experienced such resistance: the discrediting of abolitionist movements, the mischaracterizing of abolitionist theories, the failure to simply substantively engage (i.e., read) foundational abolitionist texts prior to forming a response. In addition to this reflexive resistance, there may be some in the legal profession who are open to abolition but unsure about how to incorporate abolitionist thinking into their practice and study. I argue that this uncertainty is due to the uncomfortable fit of abolitionist methodology within mainstream legal practice, education, and scholarship, caused in part by its direct challenge to conventional ways of thinking about legal reform as a pathway to positive change. This uncertainty and discomfort can be overcome through good-faith, active engagement with these ideas.

This Review uses Kaba's book as a springboard and template for thinking through what abolitionist methodology might offer to legal analysis. It responds to a fundamental question: How does abolition theory supplement existing ways of thinking about legal problems? To push the question further, how can lawyers and legal academics add abolitionist thinking--and more specifically, the abolitionist critique--to the collection of "tools for thinking about legal questions"? (19)

I submit that abolition theory and the abolitionist ethic and critique in particular provide a core set of methodologies that can provide a pathway for law to serve as a mechanism for pursuing transformative abolitionist change. Furthermore, abolitionist methodologies provide a way to radically reshape legal analysis and ways of thinking through complex legal issues and solutions. I also suggest how a "state of unrestrained imagination" could further reshape these ways of thinking (p. 25).

Part I of this Review defines abolition, with a focus on Kaba's work. Part II discusses what I term "abolitionist anxieties," which are concerns about the abolition movement and, specifically, the ways in which abolitionist thinking and theory disrupt traditional legal analysis. Part III then offers some ways to incorporate abolitionist thinking into legal analysis, providing a pathway to engage with abolitionist theory as a methodology, as well as preliminary thoughts on how it can be taught as a legal methodology within law schools.

  1. WHAT IS ABOLITION?

    I start with the "what" of abolition because so much of what abolition is defines and shapes the nature of Mariame Kaba's work. To explain what I mean, I think it's helpful to see how Kaba describes her own work: "I've always been interested in what we're building. That's been a big part of why I do the kinds of things I do and why I built the kinds of containers I've built over the years" (p. 166; emphasis added). The "what" of abolition involves imagining and creating a new world. This act of "building" is a foundational, though often overlooked, aspect of abolitionist thinking and organizing.

    But what is it that abolitionists are building? Abolition of the prison-industrial complex (PIC) "is a positive project that focuses, in part, on building a society where it is possible to address harm without relying on structural forms of oppression or the violent systems that increase it" (p. 2). These oppressive structures and systems are manifold. As influential abolitionist scholar and activist Angela Y. Davis explained, the PIC must be understood as part of a social, political, and economic context that both shapes its contours and explains its expansive growth over the past several decades. (20) One of the bedrocks of abolitionist analysis is an understanding of the historical antecedents of the PIC: chattel slavery, racial capitalism, settler colonialism, the dispossession of Native lands, the eugenics policies that promoted the forcible sterilization of disabled people (including individuals with physical, developmental, and intellectual disabilities), and the forced segregation of disabled people into large state-run mental hospitals. (21) But according to Kaba, abolitionists are not focused on merely dismantling the outgrowths of these institutions. In other words, the object of abolition is "[n]ot so much the abolition of prisons but 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." (22) As these definitions demonstrate, central to abolitionist praxis is the decoupling of social responses to harm and conflict from the criminal legal system and building nonpunitive and noncarceral systems of accountability and care.

    It is an understatement to say that abolition is an ambitious and longterm project. (23) Leading abolitionist theorist Ruth Wilson Gilmore captures this by saying that to create an abolitionist society, abolitionists have to change one thing: everything. (24) At the same time, abolitionists do not purport to have every aspect of the "abolitionist horizon" figured out right now. As Kaba explains, abolitionist praxis offers not a blueprint but a process of experimentation that is accessible to all of us:

    [W]e're doing abolitionist work all the time. When you're an organizer or an activist or just somebody in the community and you're pushing against climate change ... you're really doing abolitionist work. If you're building and pushing for universal education for all[,] you're doing abolitionist work. You're pushing for living wages, you're doing abolitionist work. So I think it's an expansive vision and an expansive framework. It's not a blueprint. That work of making the thing we have to do ourselves. We have to come up with the strategies, the...

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