Abstract
Excerpted From: Allegra McLeod, Abolition and Environmental Justice, 69 UCLA Law Review 1536 (September, 2023) (154 Footnotes) (Full Document)
In 2020, during the first year of the coronavirus pandemic, an estimated three million people died of COVID-19, and some fifteen to twenty-six million people took to the streets calling for an end to police violence. For months after George Floyd was killed by officer Derek Chauvin's knee on his neck, unable to breathe, police used tear gas on human beings demanding change--seeking to put an end to the uprisings for racial justice by subjecting participants to the pain caused by toxic gas.
Tear gas is a potent aerosolized chemical agent, which causes extreme coughing and retching. The Geneva Conventions designated it a chemical warfare agent after World War I, and in 1993, the nations who signed those treaties banned the use of tear gas during war. Yet, tear gas continues to be manufactured in large quantities by a multi-billion dollar U.S. weapons industry that pays factory workers in towns low wages, while placing their health at risk, and polluting economically precarious surrounding areas. The toxic gas is then shipped to police and security forces across the United States and around the world where it is frequently deployed in response to protests, having migrated from theaters of conventional warfare to widespread use as a domestic control agent against those seeking racial, economic, and environmental justice.
“I can't breathe”--a phrase that has become a rallying cry of the contemporary movements for abolition and racial justice--brings together police violence, penal abolition, and environmental justice. Recalling the final pleas of George Floyd and Eric Garner, these words implicate interdependent systems of penal and ecological harm. These words also summon the urgent need for alternative frameworks for collective life that displace these interlocking oppressive regimes with sustainable, just alternatives. The deep connections between carceral and environmental catastrophes require multidimensional responses, not ones that treat penal and ecological problems as siloed, but that address with appropriate urgency our interlinked crises, embracing a holistic vision for social and economic transformation.
Teressa Raiford, founder of Don't Shoot Portland and a Black feminist former mayoral candidate, decried the use of tear gas in her city: “We're out ... for justice for Black people and asking the state to stop its violence against us,” Raiford said, “and the city responds by using tear gas when we're in the middle of a pandemic of respiratory disease.” The use of tear gas makes those subject to it more vulnerable to COVID-19 and other respiratory illnesses. It was not until September 11, 2020, with a thick blanket of smoke settling over the city of Portland, as wildfires worsened by climate change engulfed the state of Oregon and much of the western United States, that Portland Mayor Ted Wheeler ordered the city's police to cease using tear gas on protestors.
At the same time, an emergency was unfolding inside prisons in Oregon and other western U.S. states affected by the wildfires. Incarcerated people were evacuated and crowded in smoke-filled dormitories and in cage vans and transfer prisons, forced together at heightened risk of exposure to COVID-19, often without adequate food or water. Incarcerated people were forced to throw up or urinate in their socks as many were ill from the smoke and unable to access toilets. When fights broke out in the face of these stressful circumstances, guards used pepper spray on prisoners, making it more difficult still to breathe. It is worth recalling that the people imprisoned in Oregon are disproportionately Indigenous, Latinx, and Black, the result of a long history of white colonization and white settlement of the northwestern United States, during which Oregon literally forbade Black people from residing in the state of Oregon after the land there was forcefully taken from Indigenous tribes and given to white settlers.
These same western states have relied heavily on incarcerated firefighters to quell worsening wildfires. Incarcerated firefighters risk their lives for very little pay--between two and five dollars per day-- both because they are exempt from minimum wage laws and legally prevented from unionizing. In the summer of 2020, these firefighters returned at night to smoke-filled, overcrowded prisons, struggling to breathe.
Prisons, much like those rural areas adjacent to domestic weapons plants, have long been toxic spaces that have devastated the health of those forced inside while posing environmental harm to surrounding areas. Exacerbating these perils, climate change presents especially grave dangers for incarcerated people and the dispossessed communities from which imprisoned people overwhelmingly come. For example, extreme heat events are most damaging to people, such as prisoners, who are living in cramped and crowded conditions, without air conditioning, with preexisting health challenges, and with few resources and little control over their surroundings.
As wildfires burned in the western United States and the coronavirus pandemic ravaged communities around the country and throughout the world, powerful petrochemical companies quietly advanced antiprotest legislation, ensnaring protestors calling for racial justice and an end to police violence, though these policies were aimed primarily at increasing criminal penalties for demonstrators seeking climate justice and divestment from fossil fuels. Oregon considered, though ultimately did not pass a law that would create new criminal penalties for peaceful protestors blocking traffic, making this a felony offense punishable by five years in prison and $125,000. Numerous jurisdictions, encouraged by the conservative lobbying group, the American Legislative Exchange Council or ALEC, did pass “critical infrastructure” criminal measures, applying felony penalties to people who engage in protest actions targeting oil and gas facilities.
West Virginia Governor Jim Justice signed his state's Critical Infrastructure Protection Act one day after the state's shelter-in-place orders took effect, creating felony charges applicable to those who would challenge two widely- opposed pipelines planned in the state, the Atlantic Coast and Mountain Valley Pipelines. These pipelines would transport gas extracted by fracking through pristine mountain areas and farmlands to Virginia and North Carolina, permitting the petrochemical industry to continue to expand. Even Kentucky's Democratic governor Andy Beshear signed a similar criminal measure, followed shortly thereafter by South Dakota's governor. Arkansas enacted a law that makes trespassing on a pipeline site punishable by six years in prison.
Indigenous-led pipeline protestors have since been subject to draconian criminal charges. These measures are continuous with longstanding support for and linkages between the fossil fuel industry and U.S. criminal law enforcement documented by public accountability research. This research has shown, for example, how oil and gas companies bankroll police foundations, raising private funds for police weapons and surveillance technology that far exceed public budgets.
As people are increasingly harmed by environmental crises, displaced not just within but across national borders, penal measures are often the response, including to climate migrants who are subject to immigration arrests and detention or confined in makeshift camps. This is another instance of imposing what Professor Nadia Ahmad has described as “climate cages,” which “restrict mobility, worsen prison conditions, and increase carcerality” following ecological crises.
In the confluence of these circumstances, multiple overlapping oppressive systems are brought into sharp relief: racialized police violence, militarization, the brutality of imprisonment, and ecological devastation. Reliance on criminal law enforcement has produced the opposite of public safety--threatening people's health and well-being.
This Article explores these and other ways in which ecological upheaval and penal bureaucracy are entwined and how movements for abolition and environmental justice are forging compelling frameworks for necessary transformation. In collaboration, these movements seek divestment both from harmful penal and environmental practices, which together produce and deepen racialized economic inequality. Together these movements are also working to imagine and build an alternative set of systems that better protect and serve human beings and our planet.
Informed and inspired by this work of contemporary abolitionist environmental justice movements, and with the hope of contributing to these emerging frameworks for transformative change, this Article thinks with social movement participants, engaging the strategies, tactics, and ideas generated by abolitionist and environmental justice movements as sources of insight into law's injustice and possible alternatives. In what follows, I argue that efforts that bring together communities affected by conjoined harms--such as environmental and penal practices--promise to mobilize broader collectives necessary to effectuate meaningful political and economic change.
This is not to say that every problem in the criminal process always implicates environmental concerns or that every instance of environmental harm necessarily entails a connection with criminal law enforcement, but that these harmful practices often operate in mutually reinforcing ways that are being powerfully challenged in tandem and should be more frequently addressed together. Moreover, the exigency of our current crises requires this multidimensional approach, which promises to open up a novel array of solidarities and new political, economic, legal, and legislative possibilities.
Part II offers a brief history of two recent collaborations between abolitionists and environmental justice organizers in California and Kentucky. Focusing on the cases Critical Resistance et al v. California Department of Corrections and Barroca v. Bureau of Prisons, Part II examines further the connections between carceral and environmental harms and the promise of shared struggle.
Part III considers other intersections of environmental and penal injustice and their common relationship to racial capitalism. Whereas racial capitalism has long operated to extract, dispossess, and exploit, while producing and maintaining racialized differences and elevating profit and efficiency over other values, abolitionist environmental justice pursues a reorganization of public values, a redistribution of wealth, and alternative frameworks for governance and mutual support.
Part IV begins to reflect on the possibilities for further collective struggle organized around these redistributive goals, particularly by engaging proposed legislation and other abolitionist and environmental justice visioning projects, including the Green Deal, the Red Deal, and local participatory budgeting measures. All of these projects integrate work to end penal and environmental harms in order to build a more just and sustainable future.
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Many resist calls for abolition and environmental justice because in our dysfunctional, uninspired political present, both entail fundamentally changing the status quo, a feat that often seems unattainable or even unfathomable. Major obstacles to environmental justice and abolition include the rise of reactionary politicians stoking anxious regressive public sentiment as well as legions of cowardly neoliberals unwilling to take major action to avert environmental catastrophe or address the urgent need for decarceration. But our survival depends on fundamental change. We must treat this moment--the pandemic, our unfolding ecological catastrophe, the racialized suffering imposed by the carceral state--as a portal. To invoke again Arundhati Roy's words, this moment must be a portal that enables us to imagine and fight for another world, one no longer reliant on fossil fuels, racial capitalism, prisons and policing, and instead committed to restorative economics, eco-social abolition democracy, and sustainable and solidaristic forms of collective life. If these struggles are to have any chance of prevailing, our critical analyses and efforts must be joined to confront interconnected crises together.
Professor, Georgetown University Law Center.
