Just Mercy: Reforming or Overthrowing the Criminal Injustice System?

by Karyn Pomerantz, 3-15-2020

There is broad interest in the United States over policing and imprisonment as a racist attack directed primarily against black and Latin workers. The US leads the world in imprisonment with over two million people in prison and more under the control of the criminal “justice” system. Detention centers for immigrants add to the toll with approximately 50,000 people held in custody every day (AP, 2019) and thousands of children isolated in camps apart from their parents, a strategy to deter and terrorize immigrants fleeing even more terrifying situations in their home countries. 

Reformers call for adjusting sentencing and parole for crimes, reducing overcrowding, supporting rehabilitation and reentry, releasing older and sicker prisoners, decreasing the number of black and brown men being arrested and incarcerated, ending solitary confinement, and improving prison health and access to educational programs. Juvenile justice proponents argue for the presence of lawyers during questioning and alternatives to prison. 

This article argues that reforms do not achieve sustainable improvements because incarceration and legal processes (bail, plea deals, inadequate legal aid) serve to control rebellion and dissent. Replacing capitalism with an egalitarian social system can alter the environment that causes crime and transform offenders through restorative justice and other alternatives to policing and prison. 

State Power and Social Control

Policing and imprisonment serve a critical function in capitalist societies worldwide. Their primary function is social control by preventing dissent or ending it. The owners of capital who control corporations, human labor, and  financial institutions also control the government, military, and police to maintain their wealth. This control of the government’s courts and prisons, the media, armed forces, and police by the ruling class is known as state power. These institutions protect the capitalists in wars, labor struggles, and urban rebellions. We see state power when police tanks rolled down the streets of Ferguson, when border control guards detain migrants, and when police arrested striking auto workers and inauguration day protestors. 

Police forces in the United States originated during enslavement when plantation owners hired white workers as slave patrols and overseers to control their “property.”  During Reconstruction after the Civil War, law enforcement officers and judges joined the Ku Klux Klan to instill fear in black communities, often riding through, shooting up, or torching neighborhoods. As the US industrialized, the police and related law enforcement organizations, like the Pinkertons, developed to destroy labor rebellions by workers in the factories, on the railroads, and underground in the mines. They used threats, murder, and violence against strikers and their supporters. During the 1990s, President Clinton issued the “three strikes and you’re out” laws that increased the number of people imprisoned and the number of crimes punishable by death from one in 1974 to 66 in 1994. 

Racism and Xenophobia Justifies Imprisonment

Along with outright violence and terror, the ruling clsss flexes its power through culture, law, and ideology. The most powerful is racism, ideas that marginalize people and practices that deny decent jobs, housing and education to primarily black and Latin workers in the US. Racism exists to create profits for business by paying black, Latin, and native workers less. Corporations can maintain higher rates of profits with lower pay, higher unemployment, poorer benefits and speed up. Lower pay and benefits for the most oppressed groups also lowers the bar for the entire working class, creating the conditions for unity and common struggles.

The media depict these workers, along with immigrants, as the cause of economic or social problems, blaming the victims for the crimes inflicted on them. By portraying these workers as unintelligent, lazy, or criminal, the ruling class easily divides and segregates the working class. 

The criminal “justice” system serves these elites by locking up poor people most likely to rebel against or threaten the system as black soldiers did during the Vietnam War and as civil rights activists did during the anti-racism/black power movements of the 1950s-60s. 

Capitalism Causes Crime

The conditions of capitalism itself can cause illegal activity. High unemployment and poverty rates create the conditions for the informal economy, such as drug dealing and the violence over territory that often accompanies it. Growing extremes in wealth increase anger among oppressed people, often expressed against fellow workers.  Feeling mistreated by the government, police, and the media, people often react aggressively against any perceptions of disrespect. Women and children who have less power become the objects of outrage. Blaming the most exploited workers for social and economic problems fuels right-wing racist movements that target immigrants, and black, brown, Jewish,  native, and LGBT people.

Of course, larceny and violence are totally legal for the capitalists.  Big business steals money from workers every day, and imperialist wars murder millions without punishment.

Reforming the Carceral System

Unfortunately, most of our efforts focus on reforms. While reforms are much more preferable than imprisonment, they do not eliminate the problem.

There is a wide range of strategies. They range from collecting books for prisoners to changing sentencing laws. There is a strong push to identify prosecutors as the link in the criminal justice system most responsible for convictions, plea deals and incarceration. Accordingly, the emphasis has been to pressure the local State’s Attorneys to drop charges, decriminalize minor offenses, develop alternatives to prison, such as drug and mental health treatment, diversions to community service, drug courts and mental health services, etc.  Advocates also urge prosecutors to limit the number of people with bail payment or prison detention prior to trials. Finding more progressive prosecutors as a priority would encourage residents to make campaigning and voting for prosecutors and judges. It means relying on liberal individuals to change a system purposely designed to intimidate and punish poor people and dissenters. 

Reform activists also call for better police practices including more transparent disciplining of officers, body cameras, and bias and de-escalation training. Separating ICE from local police departments is also a popular reform with limited success or implementation. Many advocates call for consent decrees where the federal government investigates excessive force and incarceration, and calls for improvements. Reforms that limit policing, such as financing social programs instead of police departments, are discussed but rarely acted upon. Participatory defense and court watch programs aim to prevent plea deal defaults and pre-trial detentions by involving families and advocates in preparing the defense and supervising pre-trial court proceedings. 

Justifications for Policing 

Public safety and crimes are the main justifications for harsh policing, arrests, and jailings. The coercive arms of the US government use protection of the “homeland” as an excuse for arresting Muslim immigrants, barring them from entering the US, and portraying them as terrorists while creating more distrust and racist animosity among the American public. (Thousands of people rushed to the airports to try to prevent their removal and to demonstrate opposition to this policy). In the context of immigration, policing groups, such as the US Immigration and Customs Enforcement (ICE), claim they are protecting Americans from criminals and addicts while creating terror by rounding up workers at their jobs and in their homes. (See Appendix 1 for policing alternatives).

Of course, there are many examples of police truly protecting people: right wing nationalists, KKK members, and Nazi demonstrators. Two Klan marches and a recent Nazi demonstration received police escorts in DC. In Greensboro, NC and Charlottesville, VA, the police did nothing to protect the anti-racists. Ultimately, the ruling class uses its police and military to protect its wealth, whether it’s suppressing domestic strikes, maintaining sanctions against Iran, Cuba, and Venezuela, or seizing oil fields overseas. 

It is encouraging that many groups recognize the health hazards of incarceration. In March 2019, the San Francisco Health Commission with the SF Health Department declared incarceration a public health issue and instituted measures to reduce imprisonment and extend health services to those suffering from mental illness and addiction.

The American Public Health Association (APHA) passed a resolution written by public health students and young practitioners that identifies law enforcement violence as a public health issue. Three years of persistent advocacy included hearings and demonstrations that contributed to increased consciousness in a mass organization of 30,000 members and partnerships with other groups. The September 2020 Supplement of the American Journal of Public Health (www.apha.org) is entirely devoted to the issue of incarceration, racism, and health. Currently there is an effort to raise a resolution on prison abolition to move the needle further. 

While these reform struggles allow us to meet people and reveal systemic racism, few advocacy groups blame capitalism as the underlying problem. They focus on immediate (and important) demands, such as closing detention camps or removing cash bail requirements. More radical groups call for abolishing prisons and organizing neighborhoods to ensure community safety. In spite of addressing the inherent inequities in incarceration, they don’t organize to replace capitalism with a more just system, and many have a very loose unstructured style of operating. 

Do We Need Punishment-the Police- Prisons? 

A Vision of a Just Society

Nationally there is some enthusiasm for prison abolition with Critical Resistance continuing its decades long efforts to radically change the criminal “justice” system. Prison abolition includes a moratorium on new jails and detention centers, the use of mediation, community service, drug rehab, and psychiatric treatment instead of imprisonment. Restorative justice approaches allow offenders to apologize and take responsibility for their crimes while “victims” confront them to describe the damages they caused. 

However, reforming police practices with community policing, body cameras, civilian reform boards (see Appendix 2 on CRBs), demonstrations, court watch, participatory defense, and antiracist training do not change the basic functions of the police and the practice of mass incarceration. 

Preventing Crimes – Promoting Justice for Workers

What would crime and a justice system look like without capitalism? What will we consider illegal? How would we rehabilitate people without coercion and isolation? 

A just, egalitarian society would eliminate many of the root causes of poverty and inequality; it would strive to unite workers.  The working class itself would collectively own all the resources and use them to benefit the entire international population, not an elite class of owners. Ending precarious economic situations, such as unstable housing and unlivable income, would eliminate the economic causes of criminal activity. Society would work to provide basic needs, such as healthcare, housing and food, and encourage social cohesion and social support. Surplus and scarcity would be experienced equitably although those who have traditionally suffered more deprivation would receive more resources to equalize living conditions. 

More collective means of living would be encouraged so that child care and household chores would be shared, reducing the stresses of child rearing and family relationships. Ideology would create a culture that stresses unity, inclusion, and cooperation with campaigns to reduce racism and the stigma often directed to people with HIV, mental illness, and those who have LGBT or non-binary sexual identities. Gender would not determine family responsibilities, employment, and participation in governing.

These conditions sound utopian and certainly don’t develop overnight, but they are the goals of an egalitarian society. How would they influence a justice system?

The class with state power defines illegal or criminal activity. In the US, crimes that threaten property, such as labor strikes and burglary, are punished with prison terms. Murders and other violent attacks against people command prison terms as well. Drug possession and dealing entrap people in the criminal injustice system. Over policing in poor black neighborhoods increases the arrests for drug possession even though drug use is the same for black and white people. Several states want to criminalize transgender medical care for adolescents. In the past, doctors were arrested for performing abortions. Of course, employers who pay workers less than the value of what they produce are never convicted of theft. 

With the working class in power, racism would be outlawed as the Soviet Union did after the Russian Revolution. Violence against others or stealing would still be unacceptable. However, the response to this would differ from today. People with mental health problems, such as depression, anxiety, and addiction problems, significantly reduced with more economic security, would receive treatment, not isolation.  Restorative justice approaches could be implemented. 

Former capitalists and fascist organizations will try to overthrow the system and build divisions between people. How would we deal with them? After the Chinese Revolution, drug dealers were offered jobs or imprisoned and killed. Sex workers were offered employment as well, and divorce became legal so women could leave abusive marriages. After South Africa ended legal apartheid, the government sponsored Truth and Reconciliation campaigns that forgave the racists who maintained apartheid and murdered thousands. Would we adopt or reject such a reconciliation?

An egalitarian society would also strive to eliminate sexism. Paying women less, excluding women from educational and occupational opportunities, and from participation in political life, and other abuses would be illegal. There would be no need to justify a lower social status by stereotyping women as weak, emotional, and sexually promiscuous.  There would be no rigid sex identities that confine people to roles based on their biology. Even so, this does not happen overnight. How would we treat rape, intimate personal violence, and abuse of gay and transgender people? Are there different responses to civil crimes like rape and theft versus political crimes like apartheid and racially motivated violence? 

These are many decisions to consider now. As we work to bring justice to the working class, it is essential to plan and fight for a society rooted in equity.

Appendix 1. Alternatives to Policing

Reformers have used these interventions to replace the police. (I have no data on their outcomes). 

  • Trained civilians can direct traffic and become crossing guards. 
  • Mental Health First Aid trains neighborhood residents to identify mental health emergencies   
  • Psychological professionals intervene in cases of domestic violence and similar threats.
  • Libraries and health centers staff social workers and lawyers to help people with psychiatric, tenant, employment and immigration problems to help avoid crises that can lead to violence. 
  • CAHOOTS in Eugene, Oregon attends to people experiencing emergency medical problems to descalate aggressive responses by police. 
  • Critical Resistance (CR) in Oakland, California trains people to learn medical interventions, such as CPR, and opioid blockers, such as Narcan, and creates social and health resources to deter people from calling on the police.
  • Neighbors can develop relationships so people can call on each other when they have safety needs rather than calling the police. 
  • People have urged funding community resources, such as housing, jobs, education, and health care, rather than policing.
  • Life After Release (LAR) in Maryland uses participatory defense programs that involve an arrestee’s family in legal procedures to prevent incarceration and plea deals. 
  • Court Watch sends civilians to observe pre-trial court proceedings to make sure prosecutors and judges follow proper protocol so defendants are not railroaded into jail.

Appendix 2. The Case Against Civil Reform Boards

The Civilian Review Board (CRB) is a popular reform effort. Local governments establish them to review and mitigate excessive police force. However, the evidence shows that CRBs:

  • are purposely weakened by the political elite to preserve the status quo.
  • are typically starved of the resources, authority, and autonomy needed to hold officers and departments accountable.
  • give a veneer of citizen participation that acts as a safety valve to release outrage that might otherwise explode into a full-on rebellion.
  • can never be the answer to police misconduct because violence is integral to policing. 
  • falsely implies that police violence can be “tamed” by giving civilians a voice in discipline, fundamentally misconstruing the nature and role of policing.

Further Reading

These resources provide more background on incarceration.  There are many more. 

Alexander M. The New Jim Crow. NY: New Press, 2010 (new edition 2020).

The classic book on the role of policing and the policies behind imprisonment.

American Public Health Association. Addressing Law Enforcement Violence as a Public Health Issue, 2018. Number 201811.  This is the resolution with over 125 references passed at APHA.  https://apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2019/01/29/law-enforcement-violence

Cooper H and Fullilove M. From Enforcers to Guardians. Baltimore, MD: Johns Hopkins University Press,  2020. 

Public health professors Cooper and Fullilove describe the role of the police, the enforcers, but offer reforms to create community-police cooperation.

Critical Resistance. http://criticalresistance.org/

CR leads efforts to abolish prisons and the carceral system.

Doctors for Camp Closure.https://d4cc.squarespace.com/

An example of what health workers can do to close detention camps and provide care, like flu shots, to the kids in custody.

Golash D. The Case Against Punishment. New York: NYU Press, 2005.

D. Golash argues that punishment, such as prison terms and the death policy. does not prevent crime or affect recidivism. She offers reforms that could replace punitivie measures, such as the alternatives to policing listed above.

Hedges C.  Corporate Capitalism Is the Foundation of Police Brutality

and the Prison State. June 2015.

Life After Release. Lifeafterrelease.org

Schenwar M, Macare J, Yu-lan Price A, eds. Who Do You Serve, Who Do You Protect? Police Violence and Resistance in the United States. Chicago, IL: Haymarket Books, 2016.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.