The Initiative for a Just Society

Preface

The crises we face today are larger simply than overincarceration or climate change. They form part of a broader problem: liberal-democratic forms of governance have given way in the West to unrestrained extractive economic logics, practices, and institutions that enable concerted forms of wealth accumulation and power concentrations to corrode society, to entrench White Supremacy, and the undo the human and ethical fabric of society.

The same kind of inequalities and injustices that the great democratic revolutions were intended to eliminate are now pervasive. Worse, they are now protected by the illusion of democratic governance and free markets. They are now facilitated by other means than autocracy or imposition.

In the United States, earlier practices of native genocide, chattel slavery, and racial segregation have metamorphosed into a contemporary police state marked by profound inequalities, racialized mass incarceration, and two-tier citizenship. Today, three white men have more wealth than the combined wealth of half of the total U.S. population. The 100 richest Americans hold as much wealth as all the country’s 42 million African Americans. With over 2.2 million people incarcerated, another 5 million under criminal supervision, and over 70 million people with criminal records in the FBI’s database—predominantly persons of color—the U.S. incarcerates more of its citizens than any civilization in history. Elected office has become a trophy for millionaires and billionaires. Only a little more than half of the eligible American voters feel sufficiently empowered to cast a ballot in the country’s most significant national elections. The political situation today in the U.S. is hardly better than in the autocratic, hereditary, monarchical regimes that preceded it.

Reformers are now struggling to cut mass incarceration, to limit cruel and unusual punishments, to curb police violence. But as long as these efforts are not understood as part of a larger effort to abolish our punitive society and the logics of capital accumulation and wealth concentration, the reform efforts will merely lead to other forms of oppression. Chattel slavery was replaced in this country by a heinous system of convict leasing precisely because the same ambition of wealth accumulation persisted. The task of redressing these social ills requires a far more ambitious and holistic project.

To get beyond the crises we face, we will need to abolish barbaric punishments like the death penalty and solitary confinement, but we will also need to do more.

We will need to abolish prisons, but beyond that, we will need to abolish the punitive paradigm that governs the criminal justice field.

We will need to abolish, more ambitiously, the punitive society that produces these recurring injustices, but beyond that, Western liberal-democratic advanced-capitalist society as we know it today.

Not in order to return to autocratic or totalitarian forms of governance like those it displaced in the eighteenth century or conquered in the twentieth century.

But to move forward to a new period in human history marked by an entirely different logic of governing: not wealth and power accumulation, but equal human fulfillment.

The aim of the Initiative for a Just Society is to push history and humanity forward.

History

The concentration of wealth and power that characterized monarchy during the ancien régime was maintained through centralized control of economic exchange and fiscal policy. Those concentrations were somewhat equalized among white men, initially, by the revolutionary processes that birthed democracies; and then, again among whites, by the exigencies of imperialist competition and the threat of communism—both of which gave rise to a welfare state at mid-twentieth century. Tragically, for indigenous peoples and other persons of color, the birth of democracy in this country was immediately accompanied by genocide and institutionalized slavery, the worst forms of inequality and injustice.

Gradually, over time, democratic governance enabled a form of advanced capitalism that has concentrated wealth and power among small elites who now control economy and society with at least the same firm grip as the aristocrats of the ancien régime. The oppressive forms of social control (genocide and slavery) were transformed, for indigenous peoples, into destitution on remote reservations, and, for persons of color, into a series of institutions (Jim Crow segregation, the ghetto) now culminating in racialized mass incarceration for African-Americans and Latinx individuals.

The logic of advanced capitalism has also fueled a competitive grab for the commons that has not only produced intolerable inequalities, but now threatens the Earth itself. The long-standing patterns of selfishness and wealth accumulation are making it increasingly possible for those with power to protect themselves and their property while doing nothing for humanity. The practices of wealth accretion undermine the possibility of addressing climate change.

Challenge

It is time, in the West, to get beyond liberal democratic forms of governance that are wedded and captive to advanced extractive logics of wealth accumulation, concentration, and monopolization. It is time to dismantle the logics and institutions of advanced capitalist accumulation that empower our punitive society. The challenge is to figure out how and what to imagine for the next period in human history.

Some dimensions are more evident than others, but even they raise challenges of implementation and practice. So, for instance, to destroy the logic of the punitive society, we must abolish the death penalty and mass incarceration in this country—not just mass incarceration, but all incarceration. We must replace the punitive paradigm with a different one.

But even the most identifiable and discrete tasks, such as abolishing capital punishment, raise the challenge of how best to achieve that end (in itself a complicated strategic question) and how to achieve it without replicating the punitiveness of society (for instance, how to achieve it without putting in place another monstrous “life row” of persons sentenced to life imprisonment for the rest of their natural lives without the possibility of parole).

At a broader level, the challenge of abolishing the punitive society raises complex questions of what paradigm to replace it with (education, rehabilitation, restoration, well-being, etc.). The challenge of dismantling Western liberal-democratic advanced-capitalist society raises equally complex questions about the character and nature of the next historical period.

There are no easy or obvious answers. Clearly, the ambition cannot be to return to earlier autocratic or totalitarian forms of governing, nor to new forms of fascism. Autocracies and centralized forms of governance continue to exist around the globe, and they threaten their citizens with unique dangers. China is a case in point, with its concentration camps for Muslim Chinese, its massive rate of executions, its new “social score” for each citizen that metes out privileges and punishments, and its total surveillance and oppression of its citizens. These forms of centralized totalitarian governance must also be abolished. Like ancien régime monarchies, they too must be eliminated (although this cannot be accomplished by those of us in the West).

Communist and socialist experiments have also failed us. The communist experience in the Soviet Union and in China demonstrated its tendency toward autocracy and the concentration of power and wealth in the hands of central party members. Electing a socialist party, as was done for instance in France with President François Hollande, is no recipe either, but often results instead in compromises with advanced logics of accumulation.

The solution does not lie in a particular regime type—whether it is socialist, communist, or capitalist. It must lie instead in close attention to the actual distributional justness of the governing logics and whether they promote the equal and general welfare of all human beings.

But this, naturally, raises the stakes for critical thought and practice.

Urgency

Courageous women and men put their lives at risk to abolish slavery. They put their lives at risk to abolish racial segregation. They put their lives at risk to abolish totalitarian autocracies.

It is time to show the same courage to abolish Western hyper-extractive liberal-democratic regimes that promote a racialized punitive society. Unless we do that, the injustices will just grow.

In order to achieve this, we cannot engage merely in criminal justice reform that does not take on the broader logics of the punitive society and wealth accumulation. We cannot focus on just one issue—abolishing capital punishment, for instance—without placing that project within the broader framework, because otherwise we only replace one punitive excess with another. We cannot embolden those who want to strengthen the model and logics of capital accumulation because that will merely coopt us and the project of abolition.

These struggles are all tied together. They cannot be severed from each other—otherwise they reproduce the punitiveness and corrosiveness. Piecemeal reform leads only to new forms of oppression—slavery to convict leasing, to Jim Crow, to mass incarceration. The logics of the punitive society will persist unless they themselves are abolished.

The Initiative for a Just Society seeks to dismantle the liberal-democratic extractive economic practices that place profits before people and sustain a society of accumulation rather than equality. The initiative aims to eliminate not only prisons and punishments, but also wealth accumulation and greed, because they reproduce exploitation. Concentration and exploitation drove slavery, Jim Crow, and the ghetto, and now drive racialized mass incarceration. They drive racism. They will drive the next method of subjugation, whatever comes next—unless we stop them in their tracks.

The objective is not to expedite a next system of oppression, but to combat the punitive society that allows it to happen. If we do not keep our eyes on the prize, we will merely replicate and reproduce our current crises. The prize is overcoming and getting beyond our current forms of extractive punitive society that privilege accumulation over the equal well-being of humans.

Strategy

The Initiative calls both for sustained critical analysis on how to get beyond Western liberal-democratic advanced-capitalist society and for ongoing critical practices that seek actually to dismantle it. There is both a critical philosophical dimension and a practice side to this—and a constant conversation between and confrontation of the two. It requires thinking and doing, reflection and action, constantly and endlessly in dialogue.

On the one hand, the project calls for sustained critical thinking about the ambition of abolition and the transformation of political economy. This entails a critical theory seminar along the lines of the CCCCT’s 13/13 seminar series focused on the project of abolition and transformation—what we might call an annual Abolition 13/13 seminar. This forum would explore and study previous campaigns for abolition (e.g., slavery, torture, Apartheid), as well as critical writings on abolition (e.g., Frederick Douglass’s abolition writings, W.E.B. DuBois’s abolition democracy, Angela Davis’s prison abolition), and various manifestos (Wollstonecraft, Marx, Lusaka, Malcolm X). It would also entail sustained critical thinking about transformations of political economy, especially in relation to new digital technologies. Critical thinkers have explored the changes of capitalism and modern society—Hannah Arendt describing the rise of the labor model of human reproduction, Althusser returning to theories of capital, Thomas Piketty rethinking capital for the twenty-first century. These conversations need to be pushed forward in light of the new digital economy and its implications for work and machine learning. Here too, the time is ripe for annual 13/13 seminar series on the transformation of political economy. These encounters would be a vehicle to critically imagine the next stage of history.

On the other hand, the project calls for ongoing action—legal and political interventions—aimed at bringing about the ambition of abolition. This entails a litigation strategy aimed at capital punishment and the punitive state in all its dimensions, including solitary confinement, life imprisonment without parole, and inhumane and intolerable conditions of confinement. It would involve crafting new strategies to eradicate the death penalty. It would also involve educational and clinical venues like the Abolition Practicum at Columbia Law School that take on intolerable practices through litigation and politics.

Action

In order to move the Initiative forward as expeditiously as possible and to actually make it happen—rather than just imagine it—we will draw on all the current resources of the Columbia Center for Contemporary Critical Thought. Over the course of the next few years, we will transform the CCCCT into an institute that will support the Initiative for a Just Society.

The critical thinking component will be organized on the foundation of the CCCCT’s 13/13 seminar series. The CCCCT has now put together a critical series called Abolition 13/13 to explore how to dismantle our current punitive society and imagine the next stage of history. It will create a blog and work with the open-access PEERS press to publish writings.

The practice and litigation component will be organized on the foundation of the CCCCT’s Practical Engagements section. It will manage five interrelated litigation and policy interventions of the Practical Engagements detailed below by Alexis J. Hoag, Practitioner-in-Residence at Columbia’s Eric H. Holder Jr. Initiative for Civil and Political Rights. This component will also run the Abolition Practicum with Alexis Hoag in order to work with and train students.

1. Death Penalty Abolition

Capital punishment is on the decline. Half the states no longer carry out executions. This includes 22 states that have abolished the death penalty, as well as three states with gubernatorial moratoria (California, Oregon, and Pennsylvania). In the 28 states that still operate a system of capital punishment, death notices and death sentences are on the decline. In today’s political climate, state courts are uniquely positioned to go beyond the protections of the federal constitution in enforcing state constitutional law to end capital punishment.

The IJS will plan a state-level strategy challenging capital punishment that will unfold in three phases. The first step is to identify states where such a challenge is viable. We will work with students, advocates and colleagues in communities in the 28 death penalty states to conduct in-depth research, focusing on state supreme court decisions, court membership, prior legal challenges, legislative efforts, recent empirical studies on capital punishment, community organizing, and community sentiment. Next, we will prioritize states to mount a targeted state-specific litigation strategy, narrowing the list of 28 states based on the research in step one. The final step is to select a jurisdiction within that state and a defendant facing a death notice pretrial. Each of these steps will require IJS to collaborate closely with local advocates and practitioners.

            We are now in a unique and critical moment in the future of the death penalty in the United States. The IJS state-by-state campaign will enable advocates to file thoroughly researched, community-supported, and strategically viable legal challenges to help eradicate capital punishment in this nation.

2. Defund, Dismantle, Abolish Police

            The call to defund, dismantle, and abolish policing as we know it is loud, urgent, and unrelenting. The IJS is well situated to answer the call to action and advance these demands with concrete, evidence-based solutions. George Floyd’s death at the hands of Minneapolis police officers, which followed countless other police officer killings of unarmed Black and brown people, demonstrated that policing in this country must undergo transformational change. Derived from slave patrols and other private law enforcement agencies, modern day policing was designed to monitor and control Black people and the poor. It is not a broken system, but rather a highly efficient system that perpetuates inequality, helps populate the prison population, and harms the very people that the state should offer safety and protection.   

            The IJS will research and offer solutions at both the federal and local level that would result in transformational change to policing. Cosmetic reforms, like requiring body worn cameras, short-lived anti-bias training, and banning certain restraint methods have proved ineffective. These measures fail to address the glaring foundational problem: the presumption of dangerousness that police assign to Black and brown bodies. For example, the NYPD banned certain neck restraints in 1993, but officers used a chokehold—a type of neck restraint—on Eric Garner twenty years later. Police observed a Black man and perceived their lives were in danger. Banning a restraint tactic could not save Mr. Garner’s life then, but overhauling how police view Black people may save someone like Mr. Garner in the future. 

Rather than “reform” police departments, local communities, states, and the federal government must engage in a full scale reckoning and reconciliation of the nation’s legacy of slavery. In the meantime, immediate change must come from both the federal government and local jurisdictions. There are over 18,000 police departments, the vast majority of which are under municipal and county control. To start, the federal government must end qualified immunity enabling courts to hold law enforcement officials liable for violating the constitutional rights of individuals; local departments must collect data on use of force by the subject’s race, this information does not currently exist in most departments—without properly identifying the problem, we cannot conceive of appropriate solutions; local jurisdictions must also shift power away from police unions and into the hands of police chiefs to empower chiefs to discipline and decertify officers who abuse the public; the federal government must also cease funneling military equipment to local departments, and local departments must surrender their cache of military equipment. IJS can work to help research and implement these changes.

3. End Qualified Immunity

As detailed above, policing as it exists in this country must undergo wholesale transformation. One of the many reasons prior “reforms” have not worked is because the legal system fails to hold officers accountable for their actions after they have engaged in misconduct or used excessive force against individuals. Police should not be “at war” with the communities they are charged with keeping safe. One of the most disturbing aspects—and there were many—in the video of George Floyd’s murder was that former officer Derek Chauvin was aware that his conduct was being captured on camera, but he did nothing to alter it. Instead, he stared back at the camera because he likely knew he could act with impunity. One of the main legal barriers to accountability is the affirmative defense of qualified immunity, which shields officers from liability.

The IJS is well-positioned to work on dismantling qualified immunity and other barriers to officer accountability. Similar to the state-by-state death penalty abolition campaign, detailed in project #1, there is potential traction among state courts and legislatures to end the state analog of qualified immunity. In fact, Colorado’s legislature recently passed a bill to end it there. National momentum is heading in a direction to bring about an end to the judicially created shield. Moreover, there are underutilized provisions in federal law that would hold police accountable for their misconduct, such as the Law Enforcement Misconduct Statute, which enables the Department of Justice to seek redress on behalf of individuals whose rights have been violated by police. In addition to helping to dismantle qualified immunity, the IJS can engage in public education campaigns regarding police accountability tools.

4. Eradicate Black as Dangerous

Due to the stain of enslavement, this country continues to equate Black and brown people with dangerousness and criminality. Therefore, it is not enough for police departments to ban certain neck restraints or institute fellow officer “duty to intervene” policies. As they operate today, police officers can use lethal force if they reasonably believe their life is in danger. Thus, officers who encounter Black people, like George Floyd or Rayshard Brooks or Tamir Rice or Botham Jean, immediately perceive danger and use lethal force, rarely pausing to consider whether a de-escalation method may be more appropriate. Police do not extend presumptions of innocence to Black people. Further, our legal system is currently designed to shield law enforcement officers from accountability for using excessive force against individuals.  

The IJS is well suited to add to existing literature and research on Black as dangerous studies and to work at eradicating this association from the legal system. In criminal jury trials across the country, prosecutors often use racially coded and dehumanizing language to characterize Black defendants as inherently dangerous and thus deserving of lengthy punishment or even the death penalty. The IJS can study trial transcripts to help identify this problem, as well as assist in post-conviction efforts for cases involving ineffective assistance of counsel, prosecutorial misconduct, and/or trial court error for allowing such language to infect the jury’s decision-making function.

5. Abolish Lengthy Prison Sentences

The United States incarcerates more people than any other country in the world and more than any other civilization in history. With over 2,600 inmates on death row, 2.2 million people behind bars, another 5 million people on probation or parole, and over 70 million people in the FBI’s criminal record database, this country now operates a criminal legal system of unparalleled punitiveness. The burden of this system falls predominantly on poor communities of color and on people who have experienced trauma. In fact, in some striking ways, this country’s criminal legal system and reliance on mass incarceration have replaced chattel slavery. As Bryan Stevenson explains: “Slavery didn’t end in 1865. It just evolved.”

Prison sentences have become longer, and the prison population is growing older, transforming prisons into elder care facilities. States that no longer operate the death penalty, lean heavily on the option to sentence a defendant to life without parole (“LWOP”), moreover, LWOP becomes what capital post-conviction defenders strive for when seeking sentencing relief for their clients. The rising number of people serving LWOP sentences also represent the end result of decades of “tough on crime” policies that did little to address crime, and instead left indelible marks on individuals and communities. Reliance on LWOP represents loss of confidence in the power of redemption and reformation. It also rejects the notion that people who commit crimes in their youth can grow, mature, and develop into law-abiding adults with a drastically reduced risk of danger to society. The IJS can help call for sentence reductions, engage in parole advocacy, and encourage legislative action to end the trend of people being sentenced to die in prison.

Conclusion

Abolition of the death penalty or of racialized mass incarceration—like abolition of slavery or Jim Crow—will lead to other forms of intolerable injustice unless the broader liberal-democratic paradigm of wealth accumulation, concentration, and monopolization is also abolished.

The goal of this project is to coordinate the abolition of unjust practices with the dismantling of the punitive society more broadly. That is the ambition of the Initiative for a Just Society. We hope you will join in this effort.

Bernard E. Harcourt

Columbia University

June 1, 2020