The Missing Link: How Prosecutors Contribute to the Carceral System and Why They Must be Included in the Abolition Movement

• Author: Molly Sherwood
• Position: J.D., Georgetown University Law Center (Expected May 2022); M.A., Boston University (2019); B.S., Binghamton University (2017)
• Pages: 1315-1336

The Missing Link: How Prosecutors Contribute to

the Carceral System and Why They Must be

Included in the Abolition Movement

MOLLY SHERWOOD*

INTRODUCTION

In 2020, the continued police killings of Black people led to an increased call

for defunding the police force.

1

The “sudden” rise of the Defund Movement came

as the video of police officer Derek Chauvin kneeling on the neck of George

Floyd went viral.

2

As the Defund Movement grew, it led to confusion and dis-

agreement about its end goal. Is the mission to reform or abolish the police?

Those firmly rooted in the reform camp often use the “bad apple” theory to sup-

port a reformist approach.

3

They claim that weeding out “bad apples” and imple-

menting trainings, such as implicit bias training, will lead to systemic reforms

substantial enough to remedy police misconduct and brutality.

4

However, like

many organizers, scholars, and practitioners have noted, reform is not a viable

option.

5

The police and carceral systems legally operating in the United States

are rooted in white supremacy and the enforcement of slavery.

6

No amount of

training or reforms can fix a system that was built to ensure the oppression and

* J.D., Georgetown University Law Center (Expected May 2022); M.A., Boston University (2019); B.S.,

Binghamton University (2017); © 2021, Molly Sherwood.

1. Eliza Collins, Calls to Cut Funding for Police Grow in Wake of Protests: Push to Redirect Funding

Toward Other Public Services Gains Momentum as Congress, Policy Makers Unveil Law-Enforcement

Reforms, WALL ST. J., June 9, 2020.

2. See Mychal Denzel Smith, Incremental Change is a Moral Failure: Mere Reform Won’t Fix Policing,

THE ATLANTIC, Sept. 15, 2020.

3. See Somil Trivedi & Nicole Gonzalez Van Cleve, To Serve and Protect Each Other: How Police-

Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. REV., 895, 902 (2020).

4. Id. Police misconduct is not limited to police brutality and killings. It includes tampering with evidence,

obtaining evidence illegally, mistreating witnesses and suspects, and providing improper evidence to prosecu-

tors, among other things. See Mariame Kaba, To Stop Police Violence, We Need Better Questions – and Bigger

Demands, GEN MEDIUM, Sept. 25, 2020. Police brutality is a redundant phrase since it is impossible to separate

violence from policing. This Note uses the phrase “police brutality” to avoid confusion and meet readers where

they are at in their abolition journey.

5. E.g., Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. TIMES, June 12, 2020 (noting that

reform efforts have failed for centuries); Smith, supra note 2 (arguing that the skillset of police includes arrest-

ing, killing, and locking people in cages but does not include solving issues such as poverty, mental illness, and

joblessness).

6. Kaba, supra note 5.

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erasure of Black people.

7

The only way forward is to abolish the current police

and carceral systems in the United States and begin anew.

The ideas and theories of defund, reformist reforms, and abolition have been

around for decades, and advocates such as Angela Davis and Ruth Wilson

Gilmore have been outspoken proponents for abolition.

8

The abolitionist move-

ment does not conform to one clear definition.

9

Its identity has taken on many dif-

ferent definitions and encompasses a wide array of ideologies, systems, and

methods.

10

For this Note, the abolitionist framework focuses on the carceral sys-

tem. The carceral system relies on carceral logic which refers to using punish-

ment as a means of reinforcement.

11

In the United States, the carceral system is

traditionally carried out through the prison industrial complex.

12

The abolitionist movement seeks to tear down the carceral systems existing in

today’s society, including the police force, mass incarceration, and the death penalty.

13

The abolitionist framework envisions a world where those systems are no longer

needed because people have access to their basic human needs including affordable

housing, living wages, and access to healthcare and mental health facilities.

14

Successfully implementing the structures required for an abolitionist society requires

removing funding from police forces, to which billions of dollars go each year, and

investing that money into community resources including housing, food, and educa-

tion.

15

Activist and organizer Mariame Kaba summed up the abolition movement in

stating, “[Abolitionists] have a vision of a different society, built on cooperation

instead of individualism, on mutual aid instead of self-preservation.”

16

A lot of effort has been dedicated to exposing police misconduct by those seek-

ing to reform or abolish the current system of carceral logic. Scholars, academics,

victims, and advocates have written about police bias, excessive use of force,

over-policing, and lack of public safety.

17

Organizers have written to their

7. See id.

8. See Bill Keller, What Do Abolitionists Really Want?, THE MARSHALL PROJECT, (June 13, 2019), https://

www.themarshallproject.org/2019/06/13/what-do-abolitionists-really-want [https://perma.cc/C8L6-RMLW].

9. See Sean Illing, The “Abolish the Police” Movement, Explained by 7 Scholars and Activists, VOX, (June

12, 2020), https://www.vox.com/policy-and-politics/2020/6/12/21283813/george-floyd-blm-abolish-the-

police-8cantwait-minneapolis [https://perma.cc/NBV3-Y88E].

10. See id.

11. Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 HARV. L. REV. 1, 4-5 (2019).

12. See id. at 7-10.

13. Id. at 4-5.

14. The Future of Policing, THE MARSHALL PROJECT, (Oct. 23, 2020), https://www.themarshallproject.org/

2020/10/23/the-future-of-policing [https://perma.cc/QHP8-TL7T].

15. Kaba, supra note 5.

16. Id.

17. E.g., Robin Smyton, How Racial Segregation and Policing Intersect in America, TUFTSNOW, June 17,

2020, (quoting Daanika Gordon, Assistant Professor of Sociology at Tufts University, discussing how Black

communities “are simultaneously over-policed when it comes to surveillance and social control, and under-

policed when it comes to emergency services.”); Elizabeth Hinton et al., An Unjust Burden: The Disparate

Treatment of Black Americans in the Criminal Justice System, VERA INST. JUST. 7, (2018) (showing that police

biases lead to more Black individuals being stopped, searched, and arrested).

1316 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1315