24(2) Berkeley Journal of Criminal Law 123 (2019)
72 Pages Posted: 9 Sep 2019 Last revised: 15 Feb 2020
Date Written: August 31, 2019
The rejuvenated movement for prison abolition has been experimenting with various conceptions of criminal justice, but one option that has yet to receive serious consideration is retribution. This article makes a threefold case for retributive abolitionism: descriptive, normative, and prescriptive. First, critically engaging with both scholarly and activist manifestations of prison abolition, the article claims that the abolitionist project is primarily concerned with racial and economic justice and does not seek the abolition of punishment, nor is it committed to any specific theory of punishment. It then argues that this turn away from theoretical justifications of punishment is a mistake. Perhaps counter-intuitively, the article contends that not only is abolitionism fully consistent with retribution, but that retributive abolitionism alleviates conceptual difficulties within the prison abolition framework. The moral basis the prison abolition movement currently lacks and that retribution facilitates is the principle that crime is not a social status but an act, for which responsibility – criminal and democratic – ought to be established. Finally, the article points to how a program of wholesale decarceration may be established by reconceptualizing what has come to be pejoratively called “collateral consequences.” Rather than civil side-effects, this article proposes treating as criminal punishment all sanctions – collateral and otherwise – imposed by the state on individuals in response to committing public wrongs. Hence, collateral consequences need not be abolished, but incorporated into the sentencing process, loaded with condemning meaning, and supplant incarceration. This would eliminate both the “civil death” collateral consequences potentially entail, and the “social death” imprisonment potentially entails, while realizing the intrinsic value of sanction.
Keywords: Prison Abolition, Retribution, Theory of Punishment, Social Movements, Black Lives Matter, Critical Theory, Moral and Political Philosophy, Collateral Consequences, Critique of Rights
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