It has long been recognized that the U.S. criminal punishment system is aberrational, cruel, and broken. Our prison population is outrageously large. But how do we actually begin to dismantle the system? Premal Dharia, James Forman Jr., and Maria Hawilo have edited a vital guide to this question, showing that it's more difficult than it sounds, because so many different institutions (legislatures, courts, prosecutors' offices, police, public defense) play a role in creating the outcome. In Dismantling Mass Incarceration, they go through each part of the system to discuss how it works, how it contributes to the problem, and paths we can take to fix it. The book features contributors from Angela Davis to our own Nathan J. Robinson, with the essay "Can Prison Abolition Ever Be Pragmatic?" The editors explain what's so wrong with criminal punishment, abolitionist versus reformist approaches to thinking about it, and how we move forward.

nathan j. Robinson 

I'm excited to have you all here, especially because I managed to sneak into this book. You were kind enough to include a contribution that I had written for Current Affairs a couple of years ago called, "Can Prison Abolition Ever be Pragmatic?", and it has resulted in what I have to say is one of the honors of my writing life, which is to appear in a table of contents next to the legendary Angela Davis, with an excerpt from her great book, Are Prisons Obsolete? 

So, here's where I want to start. Your book is a handbook about dismantling mass incarceration, and you compile a lot of different perspectives from academics, practitioners, and people who have been incarcerated—lots of different ideas for ways in which mass incarceration can be dismantled. But let me start with what you say in your introduction: “All of the authors included here agree that mass incarceration is an outrage. They disagree on what you do, but they have a starting premise, but that premise is not necessarily shared by everyone.” 

So I want to start by getting the premise established, which is to say, why is it that these authors and you the editors see mass incarceration as an outrage in need of dismantling?

maria Hawilo 

Let me take a shot at that one. I think that's a great question and a great way to start. I think we are all familiar now, culturally, with the numbers: the millions of people—almost over two million—locked up in our jails and prisons, with over 10 million people who come in and out of our jails. The numbers just start to blur with one another. 

The three of us are former public defenders who had day-to-day contact with the people who are most impacted by this vast system, who are locked up, who were taken from their homes, who were interrogated, and who were then facing impossible choices. We met with their families. We met with their children. I think you can't be part of that system without having it affect you. 

And so, in terms of how and why it's an outrage, it's almost impossible to think of any system in the United States that isn't directly impacted by this massive prison-jail-surveillance state and that doesn't directly affect the outcome of all of our other systems. And I'll just be more specific: with education, I think of some of my clients who were in jail,  taken in and out of their schools as young kids, 13–15 years old, who faced essentially a lifetime of being under-educated, mostly as a result of being in and out of juvie, detention, or jails. If you think about our public healthcare system and lifespan, mass incarceration deeply cuts into that. 

I have a memory of my very first time going into Angola [Louisiana State Penitentiary], where you are, Nathan, and meeting with an 18-year-old on death row, and that started my career trajectory. Looking out and seeing what was happening, I found that it was impossible to avoid confronting the fact that the system hurts people, particularly young Black kids and men, and it disproportionately impacts brown people. But it affects all of us. 

I was surprised to think about and reflect as we were writing this book the simple fact that 70 to 100 million people have some sort of conviction, ultimately, over the course of their lifetimes, and when they're looking for jobs that impacts them. 

And so, why is it an outrage? On a personal level, if you've done this work, it's an outrage because you meet people whose lives will be impacted by it forever. And on a lawyer level, you see how it impacts other systems.

james Forman jr.

I guess for me, I would offer two reasons. First, there was a senator, a kind of centrist Democrat, Mark Warner, some two decades ago, I think, who said something that has always stuck with me. He pointed out that we have the largest prison system in the world, and he said, either the United States has the worst people in the world, or something is terribly wrong in our criminal justice system, and I don't think we have the worst people in the world. So that's number one for me. 

The second reason for me that I think of it as an outrage is connected to something Maria said when she talked about the racial implications. My parents were civil rights workers. They met in SNCC—Student Nonviolent Coordinating Committee—in the 1960s. And as a Black man graduating from law school in the early 1990s, I could see that on virtually every dimension, there had been some improvement in all the data regarding the lives of Black people. It wasn't enough improvement, but there was improvement. But the one place where we have gone backwards since the Civil Rights Movement—the one place where since the death of Jim Crow, since the passage of the Civil Rights Act, Voting Rights Act, Fair Housing Act—where the numbers have gotten worse for Black people, is the criminal system. So to me, the idea that a system would be more racist 30 years after Brown vs. Board of Education and all of those other victories really proves the point that something has gone desperately wrong.

Robinson 

I assume you'd all agree also that the stated justification for the existence of this system, which is the protection of public safety, is not well served by the system. That is, you don't need something that destroys this many lives in order to keep the public safe from violent crime.

premal Dharia 

Yes. The system is so deeply harmful, yet the stated proposition for its utility is for some sort of public safety. I think that not only does it not meet its stated, purported goal, it counteracts it by the way it creates its own violence. It is state violence. It creates harm. It harms innumerable people on a daily basis, and that's harm that doesn't get talked about when we talk about safety. Who are we talking about when we talk about who's safe? And what does it mean to be safe? Doesn't that also mean safety from state violence?

Robinson 

With the premise established that this system is cruel on a vast scale and that it does not accomplish its stated goal, we don't even have to have the conversation about whether that cruelty is justified as a means to an end, because it doesn't accomplish the end, which is to create public safety. With that established, if we treat that as a given, then we get to the question, what do we do now that this vast, sprawling apparatus has been built? That's the question that your book is centrally concerned with. And as I take it, unfortunately, one of the answers seems to be that it isn't terribly easy to know where to start. Is that right?

Dharia 

I think that's right. We wanted to start by talking about how to change it. There are incredible books written about how we got to where we are.

Robinson 

For example, Forman's book Locking Up Our Own.

Hawilo

Locking Up Our Own is definitely among them. And there are articles and books also written about the consequences of this system, but we really wanted to focus on what to do about it, in part because we each came to it from a slightly different place. But these were the questions being asked. When I teach law students, this is what they're asking: how can we change it? 

And so that's what the book is focused on, Nathan. But as you said, and as you see, there's real tension not only about where to start but about how to make those changes. 

Robinson 

It seems to me that when you look at the outcome and see the millions of people in prisons, and if you meet people one on one who have been incarcerated, and you realize that such a terrible injustice has been done and nothing has been accomplished, it really deeply disturbs you. But then the analytic side thinks, how did this come about, and how does each little piece of the system contribute to producing what I'm seeing? 

James, could talk about how you've structured the book around judges, prisons, police, prosecutors, and about how all those parts interact to create one system?

Forman

Yes, that was very important to us. We wanted to break the handbook up into different parts, starting with police, and then through the order in which a person might encounter them when they go through the system. So, after the police make arrest, there is a prosecutor who might file charges. Then you might be assigned a defense attorney, a public defender, then you will go before a judge, and that's the chapter on the courts. Then you may end up in prison. And then the final chapter is life after prison, the lifetime consequences that can attach to a criminal conviction. 

We thought it was important to break it apart for two reasons. We have two audiences. One audience is the people in the system themselves. So some of the contributions to this book are by and about people who work in the system. We know that there are a lot of people in different parts of the system who want to make change, but a lot of them are stuck. They don't know how to, and so this book is in part an invitation and exhortation to them to say, listen, if you work in the prison system, here's an example of a warden who has worked very hard to make her prisons less cruel and more humane. And the same thing in the other parts of the system. 

But the other part of our audience, and probably the bigger part of our audience, in terms of numbers, is people outside the system: students who may be assigned to read the book, or regular, ordinary folks who just care about the world that they live in and want to create a fair world. Maybe they read Michelle Alexander's The New Jim Crow, maybe they've read Ta-Nehisi Coates, maybe they've read Bryan Stevenson or seen the movie [Just Mercy], so they know that the system is wrong and want to do something about it. And for those people, when people come to talk to us about what to do, they're often talking about a particular part of the system. They want to make the police less abusive. They want to make prosecutors fairer in their charging decisions. They want to have a public defender that really has the resources to stand up and fight for them. 

And so, you have to break it up into these parts, because these different parts are actually how the system operates on the ground, and it's within these parts that people are going to be able to intervene and change it. You can do something to change and challenge how police operate, how prosecutors operate, how judges operate, how prisons operate, whether there are lifetime punishments or not, and if you work on one or more of those things, you will, over time, make a dent and hopefully one day bring an end to the entire concept of mass incarceration.

Robinson 

One thing that might surprise or challenge people who come in with that basic sense of outrage about mass incarceration is that there are a lot of unresolved debates or difficult questions here. 

I've always taken it for granted that the public defender system is underfunded, and that people need to have good public defenders, and that the failure to give people good representation is a really big part of the injustice. Paul Butler's piece, for instance, challenges the side of it that says we need to just give people their constitutional right to good representation—actually, in some way, public defenders are helping to smooth the processing of people. Of course, the more common debate is about whether a progressive prosecutor is better.

Could you talk about some of the difficult, unresolved debates about whether any given tweak you could make actually makes things better or worse?

Dharia 

I can say that they're unresolved. You've honed in on exactly the kinds of tensions that the three of us grappled with throughout the whole process of putting this book together. It took years. We would come up with a collection of readings, read them, and then we would come together and debate and argue about them and decide on which ones met the bill and which ones didn't, and then go into round two. We kept going, and we went back and forth on so many questions. 

You really zoomed in on the public defender chapter, which is, of course, close to all of our hearts. We all came in with our own years and years of preconceptions and baggage and opinions about this, and it was very challenging for us, even among just the three of us, to grapple with. That's why we included things that are in tension with each other. We think that those conversations are really important to have. 

So the public defender conversation, for example, is, as you noted, not one that's happening much. It's not a conversation that's very common in spaces in which people are talking about criminal justice reform. The conversations are focused on funding and improving public defense, which is, of course, important. But the complications around what it means to try to take apart a really harmful system are nuanced, and they involve thinking about these kinds of questions around both the pros and cons. We thought it was really important to be able to include that and to prompt other folks to have the same kinds of conversations and debates that we were having.

Hawilo 

And if I could also add to what Premal is saying, or maybe amplify it a little bit, I have in mind a student a few years ago, before this book was written, who said to me, I really came to law school to become a good prosecutor. I believe in justice, I grew up in this era where I went to protests, etc. And she said she took mass incarceration and all the courses in law school, and she said, how do I deal with the fact that I'm also putting people in jails and prisons, and how do I deal with the fact that I'm working in a system that I want to change? 

When students come to me with those questions and they've asked a similar question about being a public defender or going into public interest or civil rights work in the criminal field, I don't have a direct answer. That's the tension we really wanted to highlight here.

Robinson 

There's that question of, if I become a prosecutor, I am going to be putting people in prison. Is that justifiable or worth it if I can accomplish a certain amount of good? And then there's also the question of, what kinds of good can you accomplish in any given position to begin with? A line that I think is from Paul Butler's other contribution, which I think will stay with people, is that becoming a prosecutor to help resolve unfairness in the criminal justice system is like enlisting in the army because you're opposed to the current war, which suggests it's kind of an absurdity. Although there I think he makes a distinction. There are not just prosecutors, there are different levels: you can run to be the district attorney of your city, and that's different from joining the office. And so, where you're placed in the hierarchy will affect the choices you have and your ability to actually do anything. 

What make a difference? Where have seen really good progress in dismantling some piece of mass incarceration?

Forman 

When you look at the last chapter of the book on what we call lifetime punishments or collateral consequences, which are restrictions on a person's ability to get a job, find housing, get health care, or get student loans because of their criminal conviction, I think basically everybody, or as close to everybody as you will get on any issue, would say getting rid of those things is good. That is not controversial. It's not complicated. Now, you might get a disagreement from people on how much they would prioritize that versus something else, but almost everybody, I think, is going to say, getting rid of those restrictions is unambiguously good, I'm on that team. 

Now, things get harder. There is a disagreement between people who identify as abolitionists and people who identify as reformers. And again, they're going to be examples where those folks are all aligned on things, but in general, changes within the system that involve in some way investing in the system—adding more prosecutors in a progressive prosecutor's office, adding more public defenders in a public defender's office, even creating education programs in prisons, which require increasing the funding that goes to the prison system to make those programs—these are the kinds of things that some people are going to think generally are good ideas. I'm one of those people.

But other people will disagree. And that doesn't mean that you won't be able to work out the particulars and get general alignment on, for example, this particular idea for prison education. But it just means that going into the conversation, there are going to be some people who are just more drawn to the idea because they see some form of harm reduction, some form of bettering the lives of the individuals right now. Then there are going to be other people who have their suspicions, because it is, in some ways, necessarily investing in this system which is so corrupt, so awful, so harmful, and so racist.

Robinson

People who use the term "abolitionist" use it very consciously to recall the abolition of slavery and sometimes use words like Jim Crow to describe it. They can react very badly to things that can seem almost unobjectionable. You have this piece about a prison in North Dakota, where they go to Norway and look at humane imprisonment in there, and they come back and try to implement some of these things because they have a very small prison population and can make it a little more humane. From one perspective, that is unambiguously good. You look at how it was before, versus how is it his now, and it's better, but from the perspective of a prison abolitionist, who sees this system as a horror, then it looks like gilding the cage. And the other word that comes up repeatedly is legitimizing, that by making these kinds of improvements, you normalize imprisonment. So perhaps the abolitionist critique that you highlight repeatedly in the book could be explained here, if one of you wants to elucidate it.

Forman 

We have the perfect person for you, Nathan.

Dharia 

You're echoing internal conversations that the three of us had for a long time, as you can see. In every chapter in the book, there are pieces that are explicitly abolitionist, or there are approaches that are explicitly abolitionist, and there are some that are not that may well involve reforms that abolitionists would undertake, but also might not.

And so, for example, in the prosecutor chapter, since we were just talking about prosecutors, what does it mean to invest in improving system actors, and to what end? We included Community Justice Exchange’s guide to abolitionist organizing around prosecutors. And what does it mean to have an abolitionist critique of prosecutors? What does it mean to think about this moment when there is so much investment in these system actors as a means to potentially make change, and what do folks who don't believe that is the right path toward meaningful change do with that? There's work there. There's really important organizing that can come from that, and there's leverage and points of tension that can be maximized to advance goals across the spectrum. 

We did include those perspectives in the different chapters. In the prisons chapter, for example, there are multiple examples of abolitionist writing, and the same with the police chapter. We opened with Derecka Purnell talking about becoming an abolitionist. So yes, I think that was the idea was to incorporate all of the above. 

Robinson 

At a more basic level, for our listeners and readers who may not be committed prison abolitionists, or to whom the perspective may be new or alien, when people present prison abolitionism or police abolitionism to them, the first question is, why would anyone come to that perspective? Derecka Purnell’s book, Becoming Abolitionist, is fantastic at explaining the answer to why anyone would be, but perhaps you could tell us a little bit more. I think the reaction of many people is, I understand that the prison system has all of its problems, but how could anyone ever think that we could entirely get rid of prisons and policing? So maybe you explain why some people do really feel that way.

Dharia 

Sure, I think that there are different ways of looking at our criminal legal system. Many people think it's broken, and many other people think that it's working the way that it's intended to work, which is to create harm, punish people, and to coerce certain kinds of behavior and social order. Depending on how you begin to think about those questions, whether you thought about them before or not, or if you have and where you land, I think you might take a really different approach to how things should change. If you're fixing something that's broken, that's a really different thing than not. And so, to answer your question of, how could anyone think that this should end? I think there are people who think it's built for harm and destruction.

Forman 

And Nathan, I would just jump in there as well to say, I'm not somebody who identifies as an abolitionist, but there is a lot in abolitionism that I like. So I think I'll just identify, for me, what is the main attraction, and this is also a point that you make in your piece as well, so it won't be unfamiliar to you. Maybe this will be an invitation for somebody to go look at your contribution and some of the other contributions. 

The thing that I like most about abolition thinking is the way that it sets a vision for the world that we all want to live in. It is really, I think, kind of uniquely and specifically relentless in not allowing people to do what so many people are quite eager to do, which is to accept a little bitty piecemeal change and go and celebrate and say, okay, great job. I can now move on to something else and go tackle some other issue. And what abolition says is, no, we have this horizon that is longer, broader, and is ultimately more meaningful, this goal that we are trying to create. Purnell talks about this as well, that we might not see it in our lifetime—I probably won't see it in my lifetime—but the only way to get really far is to set the goal really, really far. Because otherwise you just go two, three yards, and you're like, alright, I'm good. 

So I really like that about abolition. And I also like the way in which abolitionists, I think, do a really great job of saying, since we're setting the goal to be this far away, we now have to figure out, how could we create a world where that would be possible? What are all the things we would need to change in society to make the impossible become possible? And that, I think, is also a very wonderful invitation that we should all take up, whether we call ourselves abolitionists or not.

Robinson 

Yes, I'm very drawn to abolition for similar reasons. In my piece, I talk about the radicals of 100 years ago who deplored to the very existence of prisons. The idea of a prison was horrifying to them. It was disturbing. Eugene Debs said, while there is a soul in prison, I am not free. And I just mulled over that phrase for a long time. I thought, while there's a soul, any soul—while there's one person in prison, you're not free. What a radical sentiment. But then you think, as long as there is a soul in prison, we've got something going wrong in society because someone's committed a harm, and ultimately, we want to eliminate the harms that result in us thinking we have to put people in prisons. In my essay, you reprinted the picture of the Norwegian prison cell, which looks really comfortable. You say, well, who could object to the Norwegian prison cell? But if we think deeper, we're asking, why is there this cell? Well, this is the cell of the mass murderer Anders Breivik. Ideally—in our ideal world—we wouldn't have created a person like in the first place, so this cell wouldn't exist. We think more deeply about how we should be moving towards the horizon of no prisons at all. 

Let's get back to this subject about consensus. There are a lot of debates in the book of abolition versus reform. But I want to go back to things that we can be pretty confident are good things. James, you mentioned the end of life sentences, essentially implicit life sentences, where you're punished for life due to the fact that you can't get a job afterward. We can all agree that's bad. Another thing that comes up that I want to ask you to elaborate on is bail, because bail seems to be keeping people in jail because they don't have enough money, rather than because they're a risk. There seems to have been an emergent consensus that this is both unfair and also just foolish. From the perspective of wanting to keep people safe, money isn't a relevant criterion.

Hawilo 

That's another one where locking people up because they can't afford to buy their freedom is just wrong as a value proposition. And so that basic sentiment, Nathan, that you just expressed is something I think most people would agree with. The tricky thing is, fixing the cash bail system or eliminating the cash bail system doesn't necessarily resolve the harms underlying that cash bail system. Folks get placed on electronic monitoring instead. They violate a curfew, and they're now locked up on a different charge. And so yes, they're not in jail, and for every client I've represented, not being in jail is preferable to all the other conditions, but now there's an increase in surveillance. And so even when that cash bail system is abolished or eradicated, in many places, it isn't entirely abolished, and what they've done is try to tie it to risk assessment tools.

But as a general principle, I think this idea that we can lock people up unless they can buy their freedom is one that most people can agree needs to be ended or changed, at least for those who think that our jails shouldn't be used as a debtors' prison, which is how they've been used in many places around the country. So I think there's been some consensus towards that. But for the question of how to deal with the perceived risks or the safety issues, there's still debate and attention there, and not everyone agrees about how jurisdictions or places are handling that.

Robinson 

I'd like to conclude here by discussing what has already changed and the reasons for being hopeful that we can actually dismantle this system. In the collective introduction that the three of you have written to this book, you open with the fact that when you were starting out as public defenders, the discourse around criminal punishment was punitive. This was the 1990s, the era of the “super-predator” discourse and the idea that just building a prison was an inherently good thing. There's been an immense movement on this. We're not where we ought to be, but a lot of people have become awakened to the fact that what is around them is disturbing. In 2020, giant protests in the streets, the largest in American history, were over something that would have passed as just another incident two decades ago. Could you talk about how things have changed and where we can hope things will go next?

Forman 

I think it's exactly as you said. We all started working as public defenders when people across the country really cheered the idea of locking up more people, locking them up for longer, locking them up in harsher conditions. And there was push back. We pushed back. There were lots of folks pushing back, but we weren't winning. And the change that we've seen over the course of our careers on this issue is quite extraordinary. We've had a 90 percent decline in the number of death by execution sentences that have been imposed. In the mid-1990s, the death penalty was imposed about 350 times a year across the country, and last year was about 35. We've had a massive reduction, an 80 percent reduction, in juvenile incarceration rates over the last 20 years. And this happened because of lots of advocacy, with lots of people pushing from outside, and people working and trying to create change from inside as well. 

In addition to the conversation shifting, which is an important part of the story, there have been some real changes in the operation of the system that we can point to. And it should be noted that at the time, in the '90s, before those declines—before the decline in the death penalty, the decline in juvenile incarceration rate—when people stood up to advocate for those positions to say, let's execute fewer people, let's lock up fewer kids, what we heard in response was, if you do that, crime will explode, there'll be chaos, there'll be carnage. We have to have the death penalty as a deterrent. We have to lock up young people because they're super-predators. And what we now know 25 years later, just to continue with those two examples, is that exactly the opposite is true. We've had a 20-year crime decline in this country. There was an increase during the pandemiccovid, which has now gone back—crime has gone back to pre-covid levels almost everywhere in the country, except for a couple cities. 

So back to Premal's point at the very beginning, we know that this system cannot be justified on public safety grounds, not just because of the harms to the people in the system, as she pointed out, but also because it's not keeping the rest of us safe. And so, to me, I would take those two points, and what I would say to somebody right now who wants to work to reduce the number of traffic stops in their community, who wants to work to develop alternate responders so that people have a counselor, social worker, or a mental health expert to call instead of a police officer when they're in crisis, people who want to work to end cash bail, people who want to work to end the restrictions on your ability to vote because you have a criminal conviction—pick your issue—what I want to tell anybody out there is, what you're going to hear from the other side is that if you do that, the criminals will run amok, and what I want you to be prepared to say is that's a lie. We know it's not true. It's been proven not to be true. It was said 25 years ago in these other topics, and we now know it's not true. We can do this as well. 

Hawilo 

I think that nicely and eloquently captured the debates, the discussions, and the challenges we've faced over the last few years of writing the book. And also, I think it really captures the moment. I mean, mass incarceration wasn't a term that I really heard about when I started practicing. And that doesn't mean that we weren't in the midst of that, but it's not the way people really talked about it. And these life sentences, like 30 or 40 years, almost seemed like wasn't even real, in some ways. I was often representing people, and I think this is the case for each of us here, who were facing more time than they had been alive. 

The conversation around whether that even makes any sense from a safety perspective has changed, and it's changed not just for those of us who represented people or worked inside the system, or were deeply impacted by the system. I think that there's been a cultural change, and there are ups and downs. We've seen progressive prosecutors get elected, and we've seen recall elections. There's no escaping the cyclical nature and the political nature of the criminal legal system. But having said that, I talk to more people now who say, it's harmful, or, I know about this, or, who are the judges who matter? What should we do about this other than lock them up forever?

Dharia

So much has changed as has been discussed over the last several decades. The entry into mainstream conversation of abolition has shifted the Overton Window in many ways. It shifted what's possible, and it's shifted how we think about mass incarceration. It shifted how we think about the criminal legal system more broadly, again, whether one is an abolitionist or not. This framework of disentangling the notion of public safety from the criminal legal system, that work itself is the result of years of organizing and advocacy by abolitionists, and that change in our more mainstream, broader framework and conversation has been instrumental to being able to unpack these different parts of the system and tackle them and think about what we're really doing here. And so, I think that that shift has been really important, and I think it's growing as well. There's a lot more to come and a lot more work to do. I'm optimistic about what could lie ahead.

Transcript edited by Patrick Farnsworth.