Abolition Constitutionalism: A Definitive Study Guide
The Case of Flowers v. Mississippi and Racial Subordination
Facts of the Case: In 1997, Curtis Flowers, a black man, was charged with murdering four employees of Tardy Furniture in Winona, Mississippi. The victims included the white owner Bertha Tardy, two white employees, and one black employee.
Prosecutorial Misconduct: Prosecutor Doug Evans tried Flowers six times for capital murder. Over these trials, Evans struck 41 of 42 prospective black jurors using peremptory challenges.
Supreme Court Ruling (2019): In a 7-2 decision authored by Justice Kavanaugh, the Court overturned Flowers’s conviction, citing a blatant pattern of racial discrimination that violated the Equal Protection Clause of the Fourteenth Amendment.
Dissenting View: Justice Thomas, in dissent, excused the strikes as "race-neutral" and noted that the State remains "perfectly free to convict Curtis Flowers again."
Current Status: Flowers remains in local custody awaiting the State’s decision on a seventh trial.
Structural Argument: The Flowers case illustrates that criminal procedure continues to maintain racial subordination rooted in slavery, despite the dominant narrative that such systems were abolished.
Defining the Prison Industrial Complex (PIC) and the Carceral State
Scale of Incarceration: The United States incarcerated population exploded from approximately $500,000$ in 1980 to more than today. This represents a $340\%$ growth, while the general population increased by only $43\%$.
Racial and Class Disparities: * Black people are five times more likely to be incarcerated than white people. * The lifetime probability of incarceration for black boys born in 2001 is estimated at $32\%$ compared to $6\%$ for white boys. * Black women are twice as likely as white women to be imprisoned.
Definition of PIC: Critical Resistance (founded 1997) defined the PIC as the expanding apparatus of surveillance, policing, and incarceration used to solve social problems caused by inequality, stifle political resistance, and serve corporate interests.
Neoliberalism and Governance: The transition from "Reaganomics" to Clinton-era welfare restructuring shifted social welfare programs toward carceral intervention. Systems like healthcare, education, and public assistance have become "behavior modification programs" utilizing punitive measures.
Predictive Policing and Surveillance: Law enforcement uses algorithms to forecast crime, which often results in a "self-fulfilling feedback loop." These models rely on institutionally biased data from over-policed neighborhoods, sometimes including children as young as toddlers in gang databases.
The Three Tenets of Abolitionist Philosophy
Tenet 1: Historical Continuity: The modern carceral punishment system is traced directly back to racialized chattel slavery and the racial capitalist regime it sustained.
Tenet 2: Social Control: The expanding criminal punishment system functions to oppress black and marginalized groups to maintain a racial capitalist power structure.
Tenet 3: Radical Imagination: It is possible to build a society that does not rely on caging people to meet human needs or solve social problems.
Slavery Origins of the Carceral Apparatus
Evolution of Policing: * Slave Patrols: Early police forces began as armed groups in the 1700s that roamed roads to prevent escapes or rebellions. * Charleston City Guard: Established in 1783 to monitor both enslaved and free black residents. * The Persona of the Overseer: Frederick Douglass described overseer Austin Gore as an ideal enforcer because he could "torture the slightest look, word, or gesture… into impudence." Gore’s maxim was: "It is better that a dozen slaves suffer under the lash, than that the overseer should be convicted… of having been at fault."
Prisons and Post-Emancipation Servitude: * Black Codes: Laws passed in 1865–1866 targeted freed people for vagrancy and petty offenses. * Ruffin v. Commonwealth (1871): The Virginia Supreme Court ruled that a convict was "for the time being the slave of the State." * Convict Leasing and Chain Gangs: Every former Confederate state except Virginia leased black prisoners to industries (railroads, mines). This system was often "worse than slavery" because lessees had no incentive to preserve the lives of the workers.
The Death Penalty as "Legal Lynching": * The modern death penalty is a direct descendant of lynching. * Historical super-capital punishment included burning at the stake and public display of severed heads. * McCleskey v. Kemp (1987): The Baldus Study showed black defendants convicted of killing whites were $4.3$ times more likely to receive the death penalty than those killing blacks. The Court dismissed this as an "unexplained discrepancy."
Abolition Constitutionalism and the Reconstruction Amendments
The Pro-Slavery Constitution: The original 1787 text contained no mention of "slavery" but included 11 clauses protecting it (e.g., Three-Fifths Clause, Fugitive Slave Clause).
Dred Scott v. Sandford (1857): Chief Justice Taney ruled that black people had "no rights which the white man was bound to respect."
Antislavery Constitutionalism: Radical abolitionists like Lysander Spooner (The Unconstitutionality of Slavery) and John Bingham argued the Constitution’s inclusive language ("We the People") actually prohibited slavery.
Douglass’s Shift: Frederick Douglass originally viewed the Constitution as a "covenant with death" (Garrisonian view) but later adopted an antislavery interpretation to refuse ceding constitutional authority to slaveholders.
The "Punishment Clause" Compromise: The 13th Amendment prohibits slavery "except as a punishment for crime." Critics like Joy James argue this "codifies slavery to prison," though Radical Republicans likely intended it only to permit hard labor, not a re-enslavement mechanism.
The Supreme Court’s Anti-Abolition Jurisprudence
Constitutional Counterrevolution: Post-Reconstruction decisions like the Slaughter-House Cases (1873) and United States v. Cruikshank (1876) restricted the federal government’s power to protect black citizens from private white terror.
Current Doctrines Restricting Justice: * Colorblindness: Used in cases like Adarand Constructors, Inc. v. Pena and Parents Involved to equate efforts to dismantle segregation with segregation itself. * Discriminatory Purpose Requirement: Established in Washington v. Davis (1976), requiring proof of racially biased intent rather than just disparate impact. * Fear of Too Much Justice: Justice Powell in McCleskey feared that acknowledging systemic racial bias would throw into question "the entire criminal justice system."
Justice Sotomayor’s Dissents: In Utah v. Strieff and Heien v. North Carolina, Sotomayor argued that the Court’s "studied indifference" to racialized policing treats black people as "subjects of a carceral state, just waiting to be cataloged."
Creating the Conditions for a Society Without Prisons
Abolition Democracy: Drawing from W.E.B. Du Bois, this concept suggests abolition is not just tearing down (negative), but building up democratic institutions (positive) like housing, education, and healthcare.
Nonreformist Abolitionist Reforms: Strategies that shrink the system’s power while revealing its failures, such as: * Abolishing cash bail. * Ending stop-and-frisk. * Repealing mandatory minimums. * Decriminalizing drug use and sex work.
Transformative Justice: Community-led mediation (e.g., Cure Violence, Oakland Power Projects) that seeks to resolve harm without police involvement.
The Chicago Reparations Ordinance (2015): A landmark victory for survivors of police torture under Jon Burge. It opted for reparations (tuition, counseling, memorial) over criminal prosecution of officers, embodying an abolitionist ethic.
Final Vision: Abolition constitutionalism aims to use the Reconstruction Amendments instrumentally to facilitate the transition to a "freedom constitutionalism" where the state’s capacity for violence is replaced by collective security and human well-being.