Who Is Mired in Utopia? The Logics of Criminal Justice and Penal Abolition.

• Author: Coyle, Michael J.

Abstracts

In this article I argue that "criminal justice" logic rests on a thoroughly Utopian interpretation of humans, justice institutions, and society, and that penal abolition logic rests on a grounded realism that is nonutopian. I demonstrate this by questioning the concepts and data entailed in three "criminal justice" assumptions: (1) that most people are good (law abiding) and some are bad ("criminals"); (2) that our "criminal justice" institutions (law, police, courts, and prisons), by the threat and/ or imposition of punishment, can be and are an effective social control mechanism to prevent "crime"; and (3) that by controlling "criminal" persons through "criminal justice" institutions, we construct the good society (an ordered existence, justice and public safety, and a meaningful, shared community life). I show that these claims are not supported by the evidence. Because penal abolition is a call to abolish "criminal justice," it is actually a call to end Utopian thinking about persons, utopist acting of institutions, and Utopian visions of society.

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"Criminal justice is about punishing law-breakers, protecting the innocent, the fair administration of justice, and fiscal responsibility in a manner that is responsive to the needs of communities." (Goodlatte & Conyers 2015)

THE ABOVE EPIGRAPH IS A SUCCINCT AND PRECISE PORTRAYAL OF WHAT I will argue in this article is the Utopian perspective of "criminal justice" logic. As it notes, allegedly, "criminal justice" (1) is about (1) distinguishing who among us are the lawbreakers, (2) punishing them via our institutions to provide justice and to ensure protection of the innocent, and (3) in this manner addressing the needs of our communities. The statement is telling because it is issued by the House Judiciary Committee, which has primary jurisdiction over the US criminal code and is celebrated as bipartisan (Altman &. Rhodan 2015).

Leaving aside the rich body of arguments and evidence demonstrating that "criminal justice"--historically and in modern practice--is far more centered on the work of colonialism (Comack 2012, Dobchuk-Land 2017), white supremacy (Childs 2015, Saleh-Hanna 2017), and racial capitalism (Blackmon 2009, Oshinsky 1996, Robinson 1983) than any of the above objectives, in this article I focus on the penal project's other work: responding to transgression (what it calls "crime"). (2) The question I pose in this essay is where on the spectrum of utopianism "criminal justice" and penal abolition logics belong. My thesis is that, opposite to the above epigraph, insofar as it refers to efforts to engage transgression ("crime"), (1) "criminal justice" theory and practice rest on a thoroughly Utopian interpretation of humans, institutions, and society, and (2) penal abolition is a grounded call to separate from such Utopian thinking.

In this article I continue my work against the hegemonic narrative of "criminal justice" (Coyle 2010a,b; 2013; 2014a,b; 2016). I work to trace the language and concepts of "criminal justice" and to demonstrate the impossibility of reconciling them with both empirical reality and the assumptions of its theoretical framework. In this section I define the article's central concepts: "criminal justice," penal abolition, and Utopia. In the next section, I review how scholars have used the idea of Utopia to discuss both "criminal justice" and penal abolition. The next three sections demonstrate three arguments about the thorough utopianism of "criminal justice" and the grounded realism of penal abolition. First, I will prove that "criminal justice" logic represents humans in Utopian terms, i.e., that most people are good (law abiding) and far fewer are bad ("criminals"), when data clearly demonstrate that violent and nonviolent "crimes" are committed by almost all persons within their lifespan. Second, I will establish that "criminal justice" institutions (law, police, courts, and prisons) are Utopian because they are imaginary places that do not exist as we imagine them and discuss them, i.e., that by the threat or imposition of punishment, they function as an effective social control mechanism to prevent "crime" and deliver justice, for research clearly demonstrates that they infrequently achieve this. Third, I make evident that "criminal justice" has failed to produce the Utopian society it claims to have constructed: an ordered existence with justice, public safety, and a meaningful, shared community life. In the final section, I discuss the implications of all the above for penal abolition logic.

A key concept in this article is that of "criminal justice." Our habit of seeing "crime" reflects a construction that has produced a theory, a set of practices, and a dominant discourse that collectively is understood as the paradigm of "criminal justice"(Coyle, forthcoming).The paradigm of "criminal justice" recognizes only a small percentage of the transgressions humans commit, labels these chosen transgressions "crimes," and names their actors "criminals." In time, a gargantuan "criminal justice" system has been built, and it is recognizable as the penal process through which "criminals" traverse: from their conceptualization within law, to their surveillance through police, and finally to their processing and management through courts and prisons. Alongside "criminal justice" institutions have developed intellectual disciplines rationalizing and promoting "criminal justice" theory (criminology) and practice (criminal justice). This way of seeing, this paradigm, and all the work done in its name, produces an interpretation, or better yet, a logic: the "criminal justice" logic (Coyle & Schept 2017). The power of this logic is considerable: it overwhelmingly dominates intellectual circles concerned with transgression ("crime"), conservative as well as progressive political ideology, and, consequently, public policy. As is everywhere observable (in news media, entertainment formats, public discourse, etc.), the shadow cast by "criminal justice" logic is almost complete.

Scholars have long recognized "criminal justice' logic as a paradigm with roots in colonialism (Comack 2012, Dobchuk-Land 2017),white supremacy (Childs 2015, Saleh-Hanna 2017), and racial capitalism (Blackmon 2009, Oshinsky 1996, Robinson 1983).This logic produces theory, discourse, and practices that see only a small proportion of "crimes" and "criminals" (Bohm 1986; Coyle 2013, 2018; Hulsman 1997; Mathiesen 2015). "Criminal justice" logic is also recognized as crisis ideology (Gilmore 2007) and an organizing principle of social space (Linebaugh 2014), the state (Gilmore & Gilmore 2008), and social policy (Brown & Schept 2017). Critics also argue strongly against this logic because of its anachronistic nature (Davis 2003), the human development and justice possibilities it eviscerates (Davis & Rodriguez 2000), and the dystopias it creates (Coyle 2014b).

As I use it in this essay, the concept penal abolition refers to the argument that, for a plethora of reasons, "criminal justice" logic ought to be abandoned. This is not a call for reform to emulate some supposedly more successful Nordic punitive system (Barker 2013, Ugelvik & Dullum 2012). The penal abolition I point to rejects the "criminal justice" paradigm in the total sense that slavery abolitionists reject the slavery paradigm. The penal abolition I point to historicizes "criminal justice" as a tool of white supremacy, colonialism, heterosexism, and the numerous forms of patriarchal capitalist hierarchy/advantaging. The penal abolition I point to contests that the raison d'etre of "criminal justice" is public safety and justice, rejects its assumptions about human beings, and repudiates on empirical grounds the claim that its practices respond to transgressions ("crimes") or promote a society in the interest of all. The penal abolition I point to argues for the entitlement of communities to define the terms of how they wish to live as long as they fairly, justly, and equitably take account of the rights and liberties of all members; contends that communities have the prerogative to choose to invest their resources to maintain those terms, maintain community agreements, and respond to transgression (as long as no such efforts target or oppress certain identities or groups over others); and maintains that sociality requires addressing the needs of all, which means designing institutions that interfere with privilege (historic and current). In sum, all these produce the penal abolition logic. The power of this logic is strong in reason and evidence, and negligible in manifestation: it is not known (or worse, deeply misunderstood) in intellectual circles concerned with transgression ("crime"), is considered naive and Utopian by all political ideologies (except in social anarchist and anarcho-pacifist perspectives which are already saddled with these labels), and is consequently not considered seriously in the domain of public policy. As it is rarely observable in news media, entertainment formats, public discourse, etc., the absence of penal abolition logic is almost complete (Coyle & Schept 2017).

Finally, in this article I center the concept and language of Utopia. Credited to Thomas More (1516/1967), the word is a compound of the ancient Greek [phrase omitted] (not) and [phrase omitted] (place), i.e., it refers to a place that does not exist. (3) I use Utopia in exactly this same way: to interpret the "criminal justice" worldview as describing a place that does not exist, i.e., people not as they act, institutions not as they perform, and society not as it operates. Karl Mannheim (1936) referred to this as a mentality that is incompatible with the reality within its sphere. The modern equivalent of Mannheim would be the accusation of living in la-la land when it comes to the world that surrounds us. I also use Utopian to describe "an imaginary and indefinitely remote...