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Saturday, December 21, 2019

Some Questions About the Harvard Law Review and its Scholarly Treatment of Prison Issues

This is a long post. I say so below, in the body of the post, but want to emphasize it here at the start in a kind of preface. I wanted to write what is ultimately a questioning and critical post in a way that was fair, and that aimed at the questions that inspired it without being dismissive of the work I'm questioning. I think the questions I raise are valid and important ones, concerning the nature of legal scholarship and the state of what is supposed to be one of the leading journals of legal scholarship, the Harvard Law Review. They deserve to be aired fully, both to put it on the record, so to speak, and so that those who care about these things can confront them properly and in an informed fashion. I'm sure there are many ways to write the same post more briefly. Some of them would involve stinting on details that I think matter, however, and most of them would involve spending more time than I have. As it is, medical issues delayed the publication of this post, which I started writing in November and ought to have published a few weeks ago. That's a benefit of sorts, since it gave me more time to see whether my concerns would be addressed in a timely fashion in the Harvard Law Review Forum. I can't say I apologize for the length, but I wouldn't object if many readers chose to give the post a miss. Where concerns about scholarship and our discipline are concerned, I think it's important to put things on the record, even if that record is too lengthy.   

For those who are still interested, bear with me. For what it's worth, my main area of interest and reason for writing this--not to dismiss the articles I discuss here, but to ask about how they relate to the basic scholarly mission of the Harvard Law Review and what is largely missing so far from its work on the topic of "prison abolition"--can be found in the final section of the post.  

* * * 

This year's Supreme Court issue of the Harvard Law Review is out. I always enjoy it, both in itself and as an object of professional and institutional inquiry. The Foreword this year, by University of Pennsylvania professor Dorothy Roberts, is titled Abolition Constitutionalism. Its take-off point is "prison abolition." In Professor Roberts's words and those of the writers she quotes, "Many individuals have...concluded that the answer to persistent injustice in criminal law enforcement is not reform; it is prison abolition." The movement wants to "'make "abolition" a practical theory of change.'" Roberts's Foreword seeks to "make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists...[and] to examine prison abolitionist theory and organizing as it relates to the U.S. Constitution in particular." The ultimate goal is to "construct a new abolition constitutionalism on the path to building a society without prisons."

This is the second occasion in a very short period of time on which the Harvard Law Review has devoted substantial space and resources to this topic. An unusual "Developments in the Law" issue of the HLR in April 2019 also focused on prison abolition. I say "unusual" because, at least as long as I can remember as a reader of the HLR, the Developments issue has been student-written. This Developments issue was, apart from an introduction, written instead by two professors, an activist who is also an adjunct professor, and a Miami Law student who served a prison sentence and now also works for restoring voting rights to former prisoners. I found the departure from the norm noteworthy as such, and--or "but"--admired the inclusion of a number of individuals, especially a non-"top ten" law student, who do not fit the usual pattern of iron-cage credentialism that generally characterizes the leading law journals. But it was unusual. I have more to say about Roberts's extensive (about 120 pages) Foreword below, but I'll just say for now that I read it and admire various things about it, some of which I identify and single out for praise.   

On the one hand, the focus on the single topic of "prison abolition" in two nearly-contemporaneous issues, surely involving at least some overlap of editors, could be taken as indicating that the HLR, or its current staff, take the subject very seriously indeed. And one might say by extension that its staff takes very seriously the "'concrete reforms" (to quote the introduction to the Developments issue) that might be made with respect to a congeries of issues: the number of prisoners in the United States, the number of African-American prisoners in particular, capital punishment, bail, court fees and fines, the effect of criminal records, and police violence, to name a few identified in the same introduction. On the other, I can't help but feel that the Foreword and the Developments issue taken together present some intellectual, political, and institutional questions that raise genuine questions about the journal's ultimate seriousness about these issues, about reform with respect to these topics, and about its willingness to engage in serious intellectual inquiry about them and about "prison abolition" as a movement and a theory.

Of course this is the usual long post, for a couple of reasons other than the usual didn't-have-enough-time-to-write-a-short-post one: 1) I want to give due credit to the Foreword and its author and to the review and its editors for positive or creditable aspects of these works while still raising some questions and potential criticisms, and doing both requires a little more nuance and space. That's especially so because it seems to me that we live in a cultural and intellectual moment in which sincere caveats or notes that in a sound academic environment ought not be needed at all--such as that criticism does not mean one is attacking or disagrees completely with an article or a scholar or a viewpoint--are no longer assumed or given sufficient credence. 2) I'm interested in raising questions about how an intellectually serious journal would address the issue or movement or theory of prison abolition, not in taking a position on prison abolitionism itself. That again requires a little nuance. My goal is ultimately to ask what one would expect of a journal that takes these issues seriously and is a serious intellectual and academic enterprise as opposed to something else entirely, not to take on the substantive topic. But I think the questions I ask are legitimate, and could or even should be voiced more vigorously, not least by Harvard's own faculty and administration.   

* * *

I've been a less active scholar in recent years due to some medical issues (and my own flaws), so I apologize for citing work done long ago. Would that I had a more recent book of my own to point to as an example! But when I wrote a pair of books an age or two ago, one about "constitutional agnosticism" and one about "First Amendment institutions," one essential duty was to define those terms with as much clarity as possible. I'm not sure I fully succeeded in either case, although I tried, and critics rightly pointed out the lack. Had I turned in the manuscripts without at least making a serious effort to define my main concept in each book, however, I doubt they would have passed review by the presses or by their internal reviewers--also rightly so. Had I refused to define them on the grounds that it was all about, to quote the legal argument offered in the film The Castle, "the vibe of the thing," the refusal would rightly not have passed muster, or if it had would have been the subject of derisive comment by reviewers. Of course definitions are often imperfect, in themselves or in what they include or exclude. But they're also an essential part of scholarship. Whole fields of scholarship are built around attempting to define the nearly undefinable, and often the fact that an idea cannot be clearly defined is taken by scholars and others as a good reason to harbor doubts about it.  

Early on, Roberts writes, in a passage worth quoting at length, "It is hard to pin down what prison abolition means. Activists engaged in the movement have resisted 'closed definitions of prison abolitionism' and have instead suggested a variety of terms to capture what prison abolitionists think and do--abolition is 'a form of consciousness,' 'a theory of change,' 'a long-term political vision,' and 'a spiritual journey.' Professor Dylan Rodriquez, a founding member of Critical Resistance, lyrically defines abolition as 'a practice, an analytical method, a present-tense visioning, an infrastructure in the making, a creative project, a performance, a counterwar, an ideological struggle, a pedagogy and curriculum, an alleged impossibility that is furtively present.'"

One may sympathize with Professor Roberts insofar as, as a scholarly work, her Foreword is tasked with offering a workable definition of a broad ideological and activist project whose own chief writers seem, on this description, to have a sweeping and/or vague vision of what it actually is. She had much more space, it's true, but she certainly goes further in defining it than the introduction to the Developments issue manages to do. And Roberts does, in a sense, at least narrow her focus, by identifying "three central tenets that are common to formulations of abolitionist philosophy." She devotes considerable space to an interesting and admirable effort to describe those tenets. Still, despite her devotion of almost 40 pages to a "summary of prison abolition theory and . . . its foundational tenets," I found myself grasping after a clearer definition. 

This is not a criticism of Roberts's effort. (If criticism were apt on this point, it would be better coming from someone with a surer grounding in this literature and in criminal law and justice scholarship than I possess.) Perhaps the problem is inherent in the topic--or the movement. But, between a 120-page Foreword and a special issue, and with due regard to what a serious scholarly journal is obliged to do if it is to be a serious scholarly journal, one might expect a journal to find meaningful space for a sustained critical examination of what the inability to clearly define a movement that is at least in part a scholarly and intellectual one means for that movement, both intellectually and practically. It is an obvious line of concern and criticism, and surely a sound and fertile basis for scholarly discussion. Given the many pages the HLR has devoted to prison abolitionism in the past year, the journal seems to fall short on this point. Nor do I think it's sufficient to say that no definition is possible because prison abolitionism, as at least some of its proponents define it, is everything from a "spiritual journey" to an "ideological struggle." Scholars who deal with spiritual or ideological movements begin by defining those movements. Where they escape or defy definition, scholars discuss that fact, and raise the obvious questions and problems that result from a movement that lacks clarity--problems as much for those inside it as for those trying to understand it from the outside.

From my perspective, the most interesting contribution of the Foreword, other than providing a substantial introduction to the concept and literature of prison abolition, is Roberts's discussion of two possible paths in understanding prison abolition in relation to American constitutionalism. (There is also an extensive discussion of the Supreme Court's discussion in Flowers v. Mississippi. While I have nothing to say about it, it's worth lauding, given the number of Forewords in the past few decades that barely glance at the Supreme Court Term that is their reason for existence, or that treat recent decisions at a high level of abstraction without delving into any particular cases.) As she puts it in her conclusion, there is a "tension between two approaches to abolition constitutionalism. On the one hand, there is good reason to renounce the Constitution because constitutional law has been critical to upholding the interests of the racial capitalist regime while advancing legal theories that justify its inhumanity. On the other hand, there is utility in demanding that the Reconstruction Constitution live up to the liberation ideals fought for by abolitionists, revolutionaries, and generations of ordinary black people." According to her account, "some prison abolitionists eschew any reliance on the Reconstruction Constitution" and reject the Constitution more generally; earlier, she writes that one path of abolitionism "is resigned to the futility of employing U.S. constitutional law to dismantle the prison industrial complex and other aspects of the carceral state." A second path, one I think it is fair to say she favors, "finds utility in applying the abolitionist history and logic of the Reconstruction Amendments to today's political conditions in the service of prison abolition." Although she provides a number of arguments in favor of an instrumental use of the Constitution in service of prison abolition, she acknowledges the tension and argues that abolitionists "must engage dynamically with this tension." This is a useful discussion and fitting conclusion. It is equally true for scholars who are simply interested in studying and discussing prison abolitionism, whether they consider themselves members of this movement or not.

A second and related tension she discusses, also usefully, is that between prison abolition and prison reform. Prison abolitionism, on her account, "is defined in contradistinction to reform: reforming prisons is diametrically opposed to abolishing them. Efforts to  improve the fairness of carceral systems and to increase their efficiency or legitimacy only strengthen those systems and divert attention from eradicating them." This raises an obvious question: "How can abolitionists take incremental steps toward dismantling prisons without falling into reformist traps?" Abolitionists have "resolved this quandary," she writes, by adopting "the concept of 'non-reformist reforms--those measures that reduce the power of an oppressive system while illuminating the system's inability to solve the crises it creates.'" I'm not at all sure she convinces me that "non-reformist reforms" avoid the "reformist traps" she describes as a concern of the abolitionists. It seems to me that as with the former point, she could conclude more forcefully that this is an ongoing and perhaps an ineluctable tension. But I appreciated her raising and grappling with the question.

* * *    

I have given a lengthy description of Professor Roberts's Foreword, and noted some of what I found most instructive in it, because I have no interest in simply dismissing it, nor in dismissing "prison abolitionism" as such. Criticisms of legal scholarship based solely on the politics or aims of the scholar or scholarship, even if and when they're justified, tend to be accepted or rejected along the usual polarized political lines, and as such rarely move discussion forward. And I care more whether a particular article is good than what its politics are. An explicitly "political" or normative article that is open about the flaws, dangers, tensions, and unanswered questions of its argument, and that is open about how its logic could be used in ways that make it useful to one's political opponents or politically unsaleable for one's allies, can be a fine piece of scholarship. An ostensibly disinterested scholarly work that fails to do these things is not.

But it does seem to me that this rather large collection of pieces, appearing in a short time in the same journal, does raise some obvious but important questions about the state of the scholarly mission of the journal and about what it does not do, and perhaps about its institutional functioning. The latter point is perhaps most evident in the unusual nature of the Developments issue itself. Was the decision to depart from the journal's usual practice of making the Developments issue a student-written issue supported overwhelmingly by its editorial staff? Was the decision to devote that issue only to the writings of prison abolitionists, and not to include critics of prison abolitionism or supporters of, so to speak, "reformist reform" also supported by everyone? Were there no editors who harbored intellectual or practical doubts about prison abolitionism? Even more to the point, were there no editors who support prison abolitionism but thought that, as a scholarly journal, the Law Review should have included serious skeptical or critical treatments as part of its unusual Developments issue? 

One might ask similar questions, not about Roberts's Foreword, but about the journal's institutional treatment of that Foreword. One of the useful aspects of the HLR's online Forum is that it allows for critical scholarly responses to the journal's main articles. "Critical" doesn't have to mean "opposed"; just critical. No article is perfect and no interesting topic does not have ample room for varied approaches and hard questions. Often, as far as I can tell from the outside, the journal commissions Forum pieces precisely for that reason, and does so around the same time that it commissions the articles to which the Forum pieces are a response. Most recent Forewords have been accompanied, often contemporaneously, by responsive Forum pieces. So far there is none for Roberts's Foreword. It is certainly possible that one or more such pieces are on their way, and that they will raise some of the questions that any scholar might raise about the Foreword or about prison abolitionism itself. I hope that's the case. But given that the Developments issue came out in April and surely was some time in the making, there has certainly been a long delay, even leaving aside a Forum response to Roberts's Foreword. From both a scholarly and an institutional (assuming that at least a couple of editors think there ought to be critical as well as supportive treatments of the issue, whether for purely scholarly and intellectual reasons, or for institutional reasons, or because they are personally skeptical of prison abolition) perspective, I find it hard to imagine any justification for not doing so.

One might respond that there is no need to do so if those criticisms have been well aired elsewhere. I doubt that holds up as a scholarly justification: that might be true of one or two isolated articles, but when a journal devotes an entire issue and a major separate piece to what is largely a single perspective, that response becomes quite weak. The more it says from a single perspective, surely the more obvious it becomes that there are unanswered questions that ought to be addressed. Nor is it a good justification to say that the journal is uninterested in such perspectives because there is nothing to be said on the other side. At least on this issue, the Foreword itself notes several tensions in the movement, and both the Foreword and the Developments introduction note the difficulty in defining the movement at all. Obviously there are things to be said on the other side.                                 

Finally, I don't see how it would be a good response to say that the journal is only interested in one perspective because it has taken an institutional stand in favor of one position. The most obvious response, and one I endorse, is that this is not how a scholarly journal is supposed to work. It is especially true in the case of a massively staffed student-run journal, because it seems unlikely that there is unanimity on the part of all the editors on that position and, even if there were, it is unlikelier still that all of those editors are both fans of prison abolition and opposed to the basic scholarly norms that would counsel in favor of including critical as well as supportive treatments of that movement. Even if every editor subscribed to both propositions and was interested only in advocating for and selling prison abolition, and even if that were a legitimate approach for a flagship law journal, from a strategic point of view there is good reason to think that a univocal approach, one that doesn't include the usual scholarly apparatus of serious doubt and criticism, will only convince those who are already convinced and will ultimately do more to engender skepticism about the whole project than to advance its serious treatment by others.

In fact, and with due acknowledgment that this isn't my field, it seems to me, based on some searches and inquiries to criminal law scholars, that it is not the case that criticism or skepticism of prison abolition has been well aired elsewhere, and especially not in legal scholarship. Even though the movement has been around for some time, it has only gained wider public attention relatively recently, so perhaps that's unsurprising. A number of the journalistic treatments that have been offered on the subject, which one might expect to include some effort to air criticisms or skepticism, have failed to do so in any serious way--an unfortunate side effect, it seems to me, of changes in journalism since my own brief stint as a journalist. The New York Times Magazine's main discussion of this topic, to give a prominent example, is written by a novelist who is a prison abolitionist. There are a couple of well-known law review articles discussing prison abolitionism, now including Roberts's Foreword, but Roberts writes that "[a]bolitionist theorizing and activism have largely occurred separately from lawyers and the legal academy," and the Developments introduction, which she cites, similarly asserts that prison abolition "is so often missing from legal journals and education." If legal scholarship hasn't much discussed prison abolition at all, it surely has left a gap for critical discussion of the subject. One would think legal scholars, including those who support abolition, would naturally support efforts to encourage such a literature.

As I've made clear, this isn't my field. I wouldn't write such an article. But I would certainly be interested to hear what criminal law and justice scholars might say if they turned a critical eye on the topic. People tend to like publishing in the Harvard Law Review and its Forum, and I imagine it would not find it impossible to find smart and qualified legal scholars to raise critical questions about it from a variety of perspectives. I imagine it could find even more from other disciplines (such as criminology) in which there has already been more discussion of prison abolition, including critical discussions by those who are sympathetic to the movement.

The editors could start, both in identifying questions and in identifying authors, with this article by two criminologists, Nicolas Carrier and Justin Piché, on "Blind Spots of Abolitionist Thought in Academia." They argue in this 2015 article that while abolitionism has been subjected to "harsh and ill-informed critiques, . . . not all critiques directed at abolitionism are misguided....[T]he marginality of abolitionism, in the realm of scholarship and elsewhere, is at least partly the result of failures to adequately confront a set of longstanding and emerging challenges, compromising its very tenability." They note what they consider, at the time, a paucity of "comprehensive critical self-assessment[s] of abolitionism," and identify an article from 2000 that they think does fit the bill. In the 15 years since the publication of that article, they write, "abolitionists [still] have not satisfactorily confronted some critiques that have been [made of] prison and penal abolitionism." And they note, importantly although I would have thought it obvious, that "[i]f academia offers the privilege of indulging in abolitionist communications, then an academic discussion of some of its  problems and unsolved dimensions ought not  to be interpreted as a negation of its possibility."

If Carrier and Piché are (still) right, then there is room and need for informed but critical discussion of prison abolitionism. Given the recent volume of pieces the HLR has published on the topic, the ability of that journal to solicit the work of good writers, and the function of the HLR Forum and the space it provides, one would think it would be in a particularly good position to commission such work, and even that as a scholarly journal with an apparent strong interest in the subject it has a duty to do so. Given the vast number of criminal law scholars, one would think that the legal academy would be fertile ground to find such critics. The journal's student editors, having spent so much time working on this subject, would also be well positioned to do such work; surely some of them, while they were editing the contributions on this topic and familiarizing themselves with the abolitionist literature that is copiously cited by Roberts and the authors in the Developments issue, found unanswered questions and room for doubt. As I have noted, Roberts certainly acknowledges and addresses "tensions" and "quandar[ies]" in prison abolitionism; but that is surely not all that can be said. And given the recent emergence of some serious abolitionist scholarship in the law journals, one would also think that there is room not only for sympathetic critique but for more forceful work opposing or raising serious doubts about prison abolitionism--work which could or would now not be "harsh and ill-informed," but thoughtful and informed by the very work that these abolitionist legal scholars have published.

That none of this has yet appeared in the HLR is at least unfortunate. I think it's fair to say it raises some serious institutional questions--for this journal, at a minimum, if not more generally for American legal scholarship. It may be a scholarly duty for a legal academic journal to publish new ideas or topics that have been neglected in legal scholarship. But it is equally a duty for it to publish critical thinking about those new ideas and not just to champion them. And the more a journal publishes on that topic, the more pertinent and pressing that duty becomes. If it were really serious about these issues, one would obviously expect it to be serious enough to seek out and offer good critical work on the topic. It seems to me that merely championing some movement is, in some ways, and especially for a leading scholarly journal, as much an indication of a lack of true seriousness as it is of genuine seriousness about it.

On the one hand, I hesitate to be too critical about the work of law students, and wish to be charitable. On the other, rightly or wrongly, the HLR is considered a leading scholarly journal in our field; and its editors, in my scanty experience dealing with them, are smart, serious, and capable. Their privileged position, the importance of their journal to the discipline, and their talent and intelligence all suggest that it is fair to ask whether they could have done better and, more cautiously, why they have proceeded as they have so far. As I've said, perhaps there are Forum pieces or student notes in the offing that will offer a more critical and disinterested scholarly take on prison abolitionism. But they haven't shown up yet, and there is certainly still time and room to provide such work if none has been planned, and a large number of criminal law scholars who might do it if asked.

Although I understand the HLR to be a more or less independent entity, there are also institutional questions about the law school and its faculty and administration, and their response to the work the journal has been doing of late. Were there any faculty concerns about the unusual nature of the Developments issue, with its departure from the usual practice of being student-writtten? Were there are concerns about whether the student editors were all in agreement with an issue that took an essentially supportive rather than disinterested scholarly position on prison abolitionism, and if not whether those editors were given an opportunity to provide more critical contributions? Are any of the faculty concerned about the absence, so far at least, of any critical response in the HLR Forum to either the Development articles or the Foreword? Have any of the faculty or administration conveyed any such concerns to the journal's editors, in "Grizzer-gram" fashion? If they haven't, I think they ought to--not because they support or oppose prison abolitionism, but because they want the journal to function at its best and in proper fashion as a scholarly journal. I have no inside knowledge about any of this, of course, and perhaps there have indeed been such discussions. There is surely room for them.

I repeat: I have no brief against prison abolitionism, as an intellectual or activist movement; and I think the Foreword, in particular, is a serious and interesting piece. Nor, at least here, am I questioning whether there can ever be advocacy in legal scholarship or by legal journals. My concern is with the unusual way it has been addressed by a leading general (and not subject-specific) scholarly journal, with a particular set of scholarly duties, and with whatever that unusual treatment may have to say about the journal institutionally. For various reasons, good or bad, these kinds of questions tend not to be aired publicly all that much, even if other scholars might have the same concerns. But I think there are reasons to be concerned, and to put those concerns on the record. Ours is, after all, or is supposed to be, a scholarly discipline; and we are ultimately the ones responsible for policing it, publicly as well as privately.

Posted by Paul Horwitz on December 21, 2019 at 12:16 PM in Paul Horwitz | Permalink


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