Excerpted From: Brandee McGee, No Apology until Abolition: Redressing the Ongoing Atrocity of Slavery, 60 San Diego Law Review 535 (August-September, 2023) (195 Footnotes) (Full Document)

BrandeeMcGee.jpegThere are currently more Black adults under correctional control than there were enslaved at the height of slavery. Despite Black Americans making up only 12% of the domestic population, states imprison them at more than five times the rate of White Americans. In California, the ratio is even higher: the “Black/white disparity [is] larger than 9:1.” Although many White Americans are also imprisoned, Michelle Alexander in The New JimCrow argues that these White prisoners are “collateral damage” to mask a racialized prison-industrial complex (PIC)--with mass incarceration as the main feature.

In 1865, after decades of activism by the abolitionist movement, the United States ratified the Thirteenth Amendment abolishing slavery “except as a punishment for a crime.” While the PIC [ prison-industrial complex] is not as overtly brutal as slavery nor as conspicuous as JimCrow--in part because it is largely concealed from the public, especially with many prisons, even in California, located in remote, rural areas is arguably a continuation of both atrocities.

Law enforcement has been used as a tool to control Black Americans long before emancipation. The South mythologized Black violence and organized “slave patrols” to catch runaway enslaved people and to terrorize free Black residents. Today, the mythology of Black lawlessness, which politicians have used to stoke fear and rage among White Americans, has led to an unprecedented rate of Black incarceration.

The Interim Report issued by the California Task Force to Study and Develop Reparation Proposals for AfricanAmericans (Task Force) has a section on the criminal system. Unfortunately, the proposed reparations are vague and non-transformative, such as “eliminat[ing] both implicit and explicit bias in the criminal justice system.” These reparations would require more funding for law enforcement, criminal system administrators, and oversight groups, further enriching corporations that already benefit from mass incarceration. While the report notably does request more funding for mental healthcare and community services, it largely ignores the profit and social control motives behind mass incarceration, police militarization, and other conditions that sustain the PIC [ prison-industrial complex]. The criminal system as we know it cannot be reformed; it must be abolished so that we may create something new--a system of care that renders the current punishment system obsolete. Abolition would eliminate police brutality, felony disenfranchisement, and capital punishment. This, in turn, would increase funding for community support initiatives and, ultimately, the opportunity to achieve racial equity for the very first time in this country.

Part II of this Article demonstrates that mass incarceration is JimCrow by another name. It addresses the contention that incarcerated Black Americans are not innocent like the enslaved or the victims of JimCrow. Part III explains how racism gave rise to the PIC [ prison-industrial complex], a system that not only incarcerates Black Americans at disproportionate rates but also exploits prison labor to boost billion-dollar industries that rely on such labor. Many formerly incarcerated individuals--again, disproportionately Black--are stripped of their freedom to vote, receive public benefits, and pursue economic security in the job market--a deprivation of resources that leads to our high rates of recidivism compared to the rest of the world. recidivism is predictably higher than White recidivism in the United States. Many conservatives point to internal factors as the cause of racial disparities like these. However, this claim is undercut by the fact that “post-release employment and level of education were the two most influential predictors to recidivism among ex-prisoners, regardless of race.”

A major principle of reparative discourse is that the atrocity must end before reparations, or any other form of redress, are paid. Part IV explores ending the PIC [ prison-industrial complex] atrocity through abolition. Part IV details what abolition might look like, keeping in mind that there is no single unified vision of abolition. There is no tension between fighting for abolition and not knowing what exactly the result will look like, for each local community has different needs and priorities. As abolitionist icon Angela Davis often emphasizes, abolition requires a complete reframing of our social organization--instead of relying on law enforcement and punitive systems, prioritizing community resources and care. Abolition must end prior to or at the same time reparations are issued. Part V discusses why. Lastly, Part VI illustrates the kinds of reparations that could ultimately lead to racial equity.

[. . .]

Abolition is an essential element of redress for the centuries-old atrocity still being perpetrated against Black Americans by the government. Though the penitentiary was created as a progressive reform and an alternative to corporal punishment, it evolved into a tool of racialized oppression that has perpetuated White hegemony, exploitation of free labor, and a profit-producing White capitalist venture. The PIC [ prison-industrial complex] was an oppressive tool created in response to the formal end of JimCrow laws, just as JimCrow was an oppressive tool created in response to emancipation. Each time the American public pushes for a “reform” to this institution, the government easily evades granting true liberation by finding a legal loophole. This is precisely why prison reform will never end this atrocity--abolition is the only way.

It is essential that compensatory and institutional reparations--in addition to an apology--must be doled out by the government to Black Americans. But under the principles of reparative justice, the atrocity must end before it can be redressed. Redress without a path toward abolition will continue the same pattern of oppression that occurred during the Reconstruction era. It took 100 years following emancipation to provide truly meaningful opportunities for Black Americans to prosper in this country. The government must not waste another century by doling out reparations without properly ending the atrocity this time. The government must abolish slavery in all its forms--mass incarceration included.

Brandee McGee. J.D. Candidate 2024, University of San Diego School of Law.