Against the Violent/Nonviolent Binary:

A Critical Examination of Reformist Conceptions of Criminality and Violence

Sophie Nicole Dowdy

Submitted in Partial Fulfillment of the Prerequisite for Honours in Political Science under the

advisement of Laura Grattan

May 2021

© Sophie Nicole Dowdy 2021 1

Contents

Acknowledgements 2 Preface 3 Chapter I - The Violent/Nonviolent Binary and the Limits of Reformism 10 Chapter II - “Tinkering Towards Imperfection”: Sentencing Reform, Selective Incapacitation, and the Presumed Inevitability of Violence 30 Chapter III - Encoding Violence: California Senate Bill 10 and the Dangers of Algorithmic Risk Assessment 42 Conclusion - Alternatives to Violence: Reimagining Public Safety through Abolitionist Organising and Mutual Aid 57 Bibliography 64 2

Acknowledgements

Everything that is worthwhile is done with other people.1

- Mariame Kaba

I dedicate this thesis to the many needlessly left to die in carceral settings around the country over the past year. Nobody deserves what they have been subjected to. There is no justice in a world that could do this to them, but I wish peace upon them and their families.

I would also like to acknowledge the many abolitionist activists, organisers, and theorists doing the work. This thesis would not be possible without them, and much of the academic work I engaged with would not exist without their dedication and labour. Although I have named some, there are so many more who go unrecognised, but whose work is immensely important to their communities as well as to the world beyond them. I am deeply indebted to them.

I am exceedingly grateful for my thesis advisor, Professor Laura Grattan, without whom none of this would have been possible. Words cannot express how grateful I am for your wisdom, compassion, and kindness. Without your comment, edits, and suggestions this year and last, I would never be the writer or thinker I am today. Thank you so much for letting me learn from and with you.

Thank you to Professors Valdez, Musto, Maurisette, Martorelli, Nolden, Arora, and all of the other faculty who have guided and mentored me through my time at Wellesley. Your instruction and support have been invaluable to me.

My deepest gratitude to my sister, Kate, who somehow always knows what question to ask to help me find the answers I already know. I love you, and the person you’ve helped me to become.

Finally, to my friends— Mel, who I couldn’t imagine life without, Katie, who understands me to my core, Sanjana, who keeps me grounded when I need it most, Naome, who reminds me to be kind yet uncompromising, Rhiannon, who lives and writes so beautifully, and finally, Natalia, to whom I owe more than I can express. Each and every one of you makes me believe a better world is possible, and want to fight for it. I wrote this thesis for you.

1 Mariame Kaba, We Do This ‘Til We Free Us: Abolitionist Organising and Transforming Justice (Chicago: Haymarket Books, 2021), 178. 3

Preface

I have no interest—and I want to make this crystal clear—in releasing violent criminals from our system.2

- Gavin Newsom, Governor of California

I wasn’t always going to write a thesis. In February of 2020 I was working full-time at the American Civil Liberties Union’s National Prison Project, using what little time I had at the end of each day after my painfully long bus ride home to cook dinner and lunch for the next day, meticulously clean my apartment, and do some reading while I wound down for bed. All of a sudden, however, all I had was time. On March 10th, 2020, I left work at the end of the day worrying about the virus we understood so little about back then. I still haven’t been back to the office. I am beginning to suspect the plant I left at my desk is dead.

With a remarkable lack of purpose and an abundance of time (and a conveniently extended thesis proposal deadline), I started to once again seriously consider thesising. At this point, I had been fascinated with the tension between abolition and reform for years, and knew for a fact I’d want to write about it in some form. As the pandemic drew on, I began to notice that, even in expressing concerns about the pandemic’s impact on the wellbeing and health of incarcerated individuals, nobody seemed to care about people deemed to have committed violent crimes, or who were otherwise constructed as irredeemable and incorrigible, who had been left to rot and now faced a drastically increased risk of death. Nobody else at work (nor at any of my previous internships, as far as I know) considered themself an abolitionist, or even took the idea seriously. They all wanted the best for the people they represented, but failed to see beyond the

2 John Pfaff, “Perspective | Freeing Inmates Won’t Thwart the Virus If We Exclude Those Locked up for Violence”, The Washington Post, April 10, 2020, https://www.washingtonpost.com/outlook/2020/04/10/prison-violent-offender-jail-coronavirus/ 4 structures they had dedicated their lives to working within, and as such couldn’t help but buy into ideas about certain people needing to be incarcerated indefinitely.

Before long, I came across Micah Herskind’s article “Three Reasons Advocates Must

Move Beyond Demanding Release for ‘Nonviolent Offenders’” on Twitter. Reading it, everything fell into place. For the next few weeks, I saw the words “violent” and “nonviolent” everywhere I turned. The organisations I followed were including it in their infographics—“free the nonviolent drug offenders”—the lawyers I worked with were dropping it in their conversations, politicians were refusing to even consider releasing “violent criminals.”3 In the face of a pandemic of unprecedented scale, most states’ efforts were exclusively geared towards those deemed nonviolent (if anyone at all.) California Governor Gavin Newson insisted that he would not even consider releasing “violent” individuals from prison, despite the fact that any meaningful attempt to control the spread of coronavirus in prison and jails—and in the surrounding communities—by reducing capacity would necessarily have to include such individuals.4 As of April 27th, 2021, there have been 2,575 reported deaths from coronavirus in prisons and jails, out of at least 396,265 people cases. Policymakers have made it abundantly clear that they are comfortable with letting people die rather than be released to their communities. The devastatingly high stakes of this refusal to conceive of incarcerated people as deserving of life demonstrate how deeply entrenched the violent/nonviolent binary is in mainstream liberal conceptions of criminality and safety.

Although activists have been criticising the violent/nonviolent binary for years, primarily in the context of prison reform, this critique is yet to permeate the mainstream.5 Some scholars

3 Ibid. 4 Pfaff, “ Freeing Inmates Won’t Thwart the Virus If We Exclude Those Locked up for Violence.” 5 Clint Smith, “YOU CANT END MASS INCARCERATION BY ONLY RELEASING NONVIOLENT DRUG OFFENDERS ALSO THE FALSE BINARY BTWN VIOLENT & NONVIOLENT IS VERY MISLEADING”, Twitter, July 23, 2018. https://twitter.com/ClintSmithIII/status/102144609010787532; Micah Herskind, “An idea that's prevalent even among some who call to defund the police is that "defund" means partially 5 have begun to challenge reformists’ reliance on the violent/nonviolent binary, but for the most part, they have yet to do so in a systematic way.6 In this thesis, I will address this deficit in the existing literature by examining 1) scholarly critiques of the role similar binaries have played in entrenching and expanding the carceral system, 2) scholarly and activist critiques of the violent/nonviolent binary in particular, and 3) contemporary cases in which reformers rely on this binary, specifically bail and sentencing reform on both the state and federal level.

The goal of my research is to understand whether the violent/nonviolent binary unjustly reinforces moral categories of personhood and citizenship, and if so, how it may contribute to the entrenchment and expansion of the carceral system. I believe that this is important precisely because the violent/nonviolent binary has largely gone unquestioned. As such, it is my aim not only to demonstrate why the violent/nonviolent binary is harmful, but to work to undo its seeming self-evidence, in order to weaken it and its deleterious effects. I have seen firsthand exactly how harmful the state can be precisely when it feigns benevolence. While volunteering at the South Middlesex Correctional Center (SMCC) as a member of a book club over the past few years, I witnessed how even the “kindest” version of a prison was still a fundamentally cruel and dehumanising institution. By continuing as a member of my book club, while taking classes including “Gender, Race, and the Carceral State” and “Prison Nation: The Carceral State in

America”, interning at organisations including the Legal Services Center (LSC) of Harvard Law

School and the Drug Policy Alliance, and following abolitionist organisers on social media, I defund––that we want the police to stop the “bad policing” of “low level offenses” and instead just focus on “violent crime.” But BOTH are anti-Black and counterproductive”, Twitter, September 16, 2020, https://twitter.com/micahherskind/status/1306253864472109056?s=20 . 6 Christopher Seeds, “Bifurcation Nation: American Penal Policy in Late Mass Incarceration”, Punishment & Society 19, no. 5 (December 2017); Katherine Beckett, Anna Reosti, and Emily Knaphus, “The End of an Era? Understanding the Contradictions of Criminal Justice Reform”, The ANNALS of the American Academy of Political and Social Science 664, no. 1 (March 2016), https://doi.org/10.1177/0002716215598973; Jackie Wang, Carceral Capitalism (South Pasadena: Semiotext(e), 2018); Ruth Wilson Gilmore, “Abolition Geography and the Problem of Innocence” in Futures of Black Radicalism, ed. Gaye Theresa Johnson and Alex Lubin (Brooklyn, NY: Verso, 2017). 6 have spent the last three years connecting my theoretical engagement with incarceration with the object of its critiques. As such, I was able to take a more critical view to SMCC (and my own role therein). I often felt conflicted, knowing that the Department of Corrections (DOC) used programs like ours to improve their image, as well as to incentivise “good” behaviour. I nonetheless maintain that this work was worthwhile. The afternoons I spent at book club with the women at SMCC were some of the most beautiful, heartbreaking, and joyful of my life. The community that we built together is one for which I will be eternally grateful. This is all to say that I understand the complexity that is wanting to provide solidarity and (material and non-material) relief for those currently incarcerated, while remaining conscious that your involvement in the system nonetheless entails some degree of complicity.

Although I have spent several years now learning about and working against the harms imposed by incarceration, as far as I know, neither I nor anyone in my family are incarcerated. I am conscious that, as a cisgender, middle-class, educated white woman, I am less likely subject to the violence of the state, and as such may have a more limited or different perspective than those who are. I do not intend to speak as an authority on abolition or the system of racialised criminalisation to which it responds. Rather, my hope is to connect existing activist critique with academic scholarship in order to better understand the implications of the violent/nonviolent binary and the policy it influences, thus joining the conversation about the limits of liberal reform. I ground this in my understanding of the past (and present) of co-optation of abolitionist ideas and language by liberal reformist actors, and in doing so hope to lend the privileges conferred to me by my whiteness toward the achievement of abolitionist goals.

In summary, I am cognisant that my whiteness colours my experience, and I must be careful not to be blinded by it. However, I try to approach this work first and foremost with an 7 abolitionist perspective, which takes seriously the possibility that prisons may be an inadequate form of punishment, and questions not only whether the state should be engaged in punishment, but if punishment should be used to deal with harm at all.7 I chose to explore this topic in part because abolitionists have yet to fully answer the question of what to do about individuals who commit violence and harm in a world beyond prisons. In other words, I recognise that there are no easy answers or alternatives to the questions I am posing. That said, in this thesis, I argue that the violent/nonviolent binary does more harm than good. Specifically, I propose that the violent/nonviolent binary induces an entrenchment and even expansion of the carceral system, in so much as it represents a racialised carceral ideology that naturalises and legitimises incarceration, but also because it often serves to encourage alternative forms of incarceration including electronic monitoring and parole to facilitate the “release” of those deemed nonviolent.

Road Map

The methodology of this thesis will combine theoretical critique with empirical analysis.

In my first chapter, I will demonstrate that liberal reformism has historically reinforced and reinvented constructions of racialised criminality, resulting in legitimisation and, at times, expansion of the carceral system. This is the case because these reforms rely on ideas of criminality that are racially constructed as a part of a liberal regime whose institutions have always exploited and controlled marginalised populations. With this in mind, I argue that the violent/nonviolent binary is arbitrary and limited as an object of reform. Furthermore, it represents a reinvented construct of racialised criminality that does not challenge the moral underpinnings of the carceral system. As such, it informs reforms that will serve to legitimise and potentially even expand carcerality. In summary, seeking reprieve only for “nonviolent

7 Dan Berger, Mariane Kaba, and David Stein “What Abolitionists Do”, Jacobin, August 24, 2017. 8 offenders” as a tactic of reform might reinforce and reinvent categories of criminality that are racialised, and will thus increase the legitimacy (and perhaps also the scale) of the carceral system. This chapter sets the stage for an analysis of contemporary cases, which I will undertake in the remainder of my thesis.

In my second chapter, I will engage in a case study of sentencing reform, specifically the

Sentencing Reform and Corrections Act of 2015 (S.2123/ H.R.3713.) Sentencing reform provides the most conspicuous demonstration of the violent/nonviolent binary in action, with contemporary legislation almost always explicitly aiming to lower costs by reducing sentences for “nonviolent offenders,” while keeping the dangerous “violent offenders” locked up in perpetuity. While the Sentencing Reform Act reduces the mandatory minimum sentencing for certain nonviolent and drug offenses, it increases it for some violent offenses, including domestic violence charges. By analysing the Sentencing Reform and Corrections Act, I will demonstrate that the violent/nonviolent binary reinscribes racialised conceptions of violence; as such, it fails to challenge the punitive nature of the carceral state.

In my third chapter, I will analyse California’s Senate Bill 10, and its subsequent repealment by Proposition 25. Cash bail is a slightly newer object of reform, and is currently a significant facet of mainstream conversations, reformist and activist alike. California Senate Bill

10 conveys the attention to risk assessment common to reformist efforts to abolish cash bail.

California’s Senate Bill intended to replace cash bail with a risk assessment algorithm that would calculate an individual’s risk of escaping and/or reoffending, and use this to decide whether to release or incarcerate them pretrial. Algorithms like these encode racist categorisations of violent and nonviolent that ultimately increase disparities in pretrial detention, cutting more clearly across lines of race and class even than cash bail, and further amplifying racialised assumptions 9 of criminal threat. This case also provides insight into the implementation and rollback of state laws based on public reception to such reforms.

In my conclusion, I will explore abolitionist alternatives to these policies and practices that insist on the redeemability of all people, no matter what they have done, and in doing so reassert the deservingness of marginalised populations. The violent/nonviolent binary may currently prevail in liberal reform circles, but there are many who reject it and its tacit acceptance of the carceral logics underpinning the prison. By looking at activist efforts including

#FreeThemAllForPublicHealth, participatory defense campaigns, and other abolitionist organising, I will demonstrate that it is possible to successfully subvert carceral logics, and work towards a world without prisons. 10

Chapter I - The Violent/Nonviolent Binary and the Limits of Reformism

One should recall that the movement for reforming the prisons, for controlling their functioning, is not a recent phenomenon. It does not even seem to have originated in a recognition of failure.

Prison ‘reform’ is virtually contemporary with the prison itself: it constitutes, as it were, its program.8

- Michel Foucault

It should not come as a surprise that reforms can be ineffective, and even counterproductive. As Angela Davis reminds us: “It is ironic that the prison itself was a product of concerted efforts by reformers to create a better system of punishment. If the words ‘prison reform’ so easily slip from our lips, it is because ‘prison’ and ‘reform’ have been inextricably linked since the beginning of the use of imprisonment as the main means of punishing those who violate social norms.”9 Michel Foucault famously demonstrated that the prison is itself a reform of the “barbaric” and “inhumane” system of corporal punishment, intending to redirect the object of punishment from the body to the mind, and in doing so serve a “corrective” function.10 What

Foucault, Davis, and many others have demonstrated over the years is that the relationship between prison and reform is not incidental; as I’ll discuss in this section, the two are very much intertwined, and have been since their inception.

Scholars have demonstrated that liberal reform efforts have at times widened the carceral system—by which I refer to prisons, jails, and other sites of punishment as well as the institutions, laws, and discourses that make their existence possible. By liberal reform efforts, I refer to attempts to correct the injustices of the criminal legal system by working within the

8 Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1995), 234. 9 Angela Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003), 40. 10 Foucault, Discipline and Punish, 8. 11 framework of existing institutions, laws, and discourses that gave rise to the carceral system.

Many scholars and activists differentiate between “reformist” and “nonreformist” reform, drawing from social theorist André Gorz, who defines a reformist reform as “one which subordinates its objectives to the criteria of rationality and practicality of a given system and policy.”11 Dylan Rodriguez, similarly, defines reformism as “the ideological and political position that fixates on reform as the primary if not exclusive engine of social change/justice.”12 In the context of the carceral system, we can therefore understand reformism as an approach to decarceration that fails to question the underlying logics of the prison.

Criminality as a Racist Construct (Aimed at Racial Control)

The construction of criminality is central to the ways in which liberal reforms have, in the past and present, served to reinforce the carceral system and expand its capacity for punishment.

Foucault argued that discourses of deviance and criminality were fundamental to the birth of the carceral system, and that society defines crime in terms of its own interests.13 As Jen Manion illustrates, “the penitentiary was designed to facilitate a strict ordering and classification of people along lines of difference.”14 Even after the abolition of slavery in 1865, “brutal forms of corporal and capital punishment were inflicted on African Americans as a result of the [B]lack codes of the 1860s, the convict lease system (1865–1928), the vast prison farms that sprang up across the South, and the extralegal but socially supported violence of lynching and other forms of racial terror,” leading many to argue that slavery was not in fact abolished, but rather relocated

11 André Gorz, Strategy for Labor: A Radical Proposal (Boston: Beacon, 1967), 7-8. 12 Dylan Rodriguez, “Reformism Isn’t Liberation, It’s Counterinsurgency”, Medium, October 20, 2020, https://level.medium.com/reformism-isnt-liberation-it-s-counterinsurgency-7ea0a1ce11eb. 13 Foucault, Discipline and Punish. 14 Jen Manion, Liberty's Prisoners: Carceral Culture in Early America (Philadelphia: University of Pennsylvania Press, 2015), 1-3. 12 from the plantation to the prison.15 Post-slavery, the conflation of Blackness and criminality was used to maintain racial order, as well as to assuage white anxieties by providing a “legitimate” outlet for white supremacist fervor. Albeit sloppily at first, the process of criminal classification, categorisation, and separation has been used in this country to reassert race, class, and gender hierarchy and order since the establishment of colonial rule.

Drawing on Foucault, Andrew Dilts argues that there is no essential character of the criminal; rather, it is a construct that serves as a “proxy for some… group of individuals in the popular imagination.”16 In other words, there is no natural category of “criminal,” it is a construct onto which we project widely-accepted societal assumptions about who is deserving of punishment. Further, there is no such natural or inherent thing as innocent or guilty, violent or nonviolent, deserving or undeserving; these are constructed labels that were born out of institutions designed to control and oppress. As such, scholar Naomi Murakawa asserts that crime is not and has never been a neutral category, but that crime and punishment are politically constructed, contingent on ideologies and institutions that change over time. Concepts of what constitutes a crime and how it ought to be punished are continually reconstituted on racialised terms.17

Charles Mills underscores the significance of criminality as a racial construct, arguing that it serves the purpose of justifying and reinforcing institutions (including the prison, and the carceral system more broadly) that control and exploit Black people. Mills views the carceral system (along with the other coercive arms of the state) as the enforcer of a Racial Contract that differentiates “white” from “nonwhite” and categorises the latter group as morally and civilly

15 Lisa Guenther, Solitary Confinement: Social Death and Its Afterlives (Minneapolis; London: University of Minnesota Press, 2013), 41; 61. 16 Andrew Dilts, Punishment and Inclusion: Race, Membership, and the Limits of American Liberalism (New York: Fordham University Press, 2014), 27-8. 17 Murakawa, The First Civil Right, 20. 13 inferior.18 The Racial Contract constructs moral and civil personhood around whiteness, thus making them unattainable to those coded as nonwhite. Therefore, in the context of a carceral system intended to uphold the existing racial order, criminality is designed as a racial construct to subordinate those deemed nonwhite in order to enable “the exploitation of their bodies, land, and resources.”19 If we make the mistake of assuming crime to be a neutral category, we cannot help but naturalise and reinforce the modes of racial control, domination, and exploitation it creates and justifies.

Liberal Reformism Reinforces Racialized Criminality

Khalil Gibran Muhammad traces ideas about Black criminality from the 1890s onwards, arguing that liberals shifted the discourse from inherent inferiority to cultural pathology in ways that did not challenge racist assumptions of criminality and that therefore reinforced and refurbished them.20 According to Muhammad, “although racist notions of (permanent) biological inferiority gave way to liberal notions of (temporary) cultural inferiority, racial liberals continued to distinguish [B]lack criminality from white and ethnic criminality.”21 While white criminality was dismissed as stemming from poverty and individual failure, Black criminality was universally attributed to cultural inferiority, with criminalised behaviour supposedly representing a “social, psychological, and familial adaptation to white racism.”22 By using a theory of cultural inferiority to reject ideas of biological inferiority, progressive-era liberals reinforced notions of a pathological culture of Black criminality. As such, Black criminality was seen as unfit for the kinds of social and economic interventions used to address to white and white ethnic criminality

18 Charles Mills, The Racial Contract (Ithaca: Cornell University Press, 1997), 11, 84-5. 19 Ibid., 11. 20 Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (Cambridge: Harvard University Press, 2019), 9. 21 Ibid., 9. 22 Murakawa, The First Civil Right, 9. 14

(which were informed by racial ideology linking class oppression with whiteness.)23 During the

Progressive Era, concerns about white ethnic criminality faded, and by the early 1940s, the

“Foreign Born” category was removed from the federal government’s Uniform Crime Reports, leaving “Black” standing as the sole remaining “unmitigated signifier of deviation (and deviance) from the normative category of “White.”24 This categorisation was in turn informed by and consolidated the stigmatisation of crime as Black. The “statistical language of Black criminality” thus became the “glue that binds race to crime today as in the past,” presented as it almost always is as an objective measure of harm done, rather than a product of racist lawmaking, policing, and prosecution.25

It is exactly this assumption of Black criminality that Murakawa and Elizabeth Hinton critique in Johnson Era reforms. According to Murakawa, Johnson Democrats bought into the ideology of cultural Black criminality, with the 1967 Commission on Law Enforcement and

Administration of Justice even going so far as to argue that “a civil rights law is a law against crime.”26 This assumption of pathological Black criminality went hand in hand with the perception of racism as an individual prejudice—known as “the perpetrator perspective”—wherein the system constructs criminality as Black but denies doing so, instead attributing racial disparities in sentencing to “bad apples” who allow personal racial bias to affect their decision-making. As such, Johnson Democrats were confident that they could insulate the system from this seemingly arbitrary and irrational bias by “modernising” carceral machinery—an ambiguous goal that encompassed improvements to criminal legal administration, reorganisation of the criminal code, efforts to “professionalise” police forces, and

23 Ibid., 13. 24 Ibid. 25 Ibid., 1. 26 Ibid., 9. 15 reduction of judicial discretion in sentencing. This modernising effort culminated in the Safe

Streets Act of 1968, which invested $400 million in the War on Crime, and created the Law

Enforcement Assistance Administration (LEAA) to disburse this money. 27 By the time it was disbanded in 1981, the LEAA had paid out the equivalent of $25 billion in today’s dollars to police operations.28 By relying on the assumption of Black criminality, and trusting in the system to root out individual bias, the Safe Streets Act poured money into reinforcing, rather than uprooting, a system of racial control. In doing so, the Safe Streets Act, among other Johnson-era reforms, greatly increased carceral capacity (“the resources dedicated to detecting, apprehending, processing, and punishing people deemed criminal,”) thus expanding the system’s ability to do harm.29

In this and other examples, Hinton and Murakawa question the common narrative that carceral expansion was solely an achievement of the law and order discourse and policies of the conservative Nixon and Reagan eras. There are many examples of “well-intentioned” reforms, crafted, supported, and/or influenced by liberals, that ended up resulting in carceral expansion and the exacerbation of racial disparities; carceral expansion was, whether we realise it or not, a bipartisan endeavour. For example, although 1984’s Sentencing Reform Act was a Reagan Era reform, it undeniably arose out of Johnson-era liberal law and order rhetoric and its assumption that racism in the criminal legal system was an issue of individual prejudice (and therefore that judicial discretion represented a dangerous form of individualised justice.”)30 Even though it was ostensibly intended to eliminate “widespread racialised disparities in indeterminate sentencing that kept many people in prison for unjustifiable lengths of time” by (among other things) setting

27 Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, Massachusetts: Harvard University Press, 2016), 2. 28 Ibid. 29 Heather Schoenfeld, Building the Prison state: Race and the Politics of Mass Incarceration, (Chicago: University of Chicago Press, 2018), 62. 30 Murakawa, The First Civil Right, 153-4. 16 mandatory minimums for some federal crimes, it instead worsened the problem.31 Mandatory minimums prevented leniency, requiring judges to give out long, harsh sentences regardless of context. As such, the 1984 Sentencing Reform Act enabled and empowered the draconian sentencing that grew the carceral state in the 80s and 90s. In part because of racist codification of said minimums (a classic example being the 100:1 crack/powder cocaine sentencing discrepancy,) but also because of racist lawyering, prosecution, and judgement, Black people are significantly more likely than white people to be convicted under mandatory minimum provisions, and tend to receive longer sentences than white people convicted of the same crimes.

Nowadays, mandatory minimums are cited as a prime target for reform, and some reformers are now calling for more judicial discretion, “praising that which they previously reprimanded—justice customised to each individual defendant.”32

Reformist reform, by purporting to change the system without actually questioning the racist carceral logics that underlie the prison, often succeeds in refurbishing them by making them more acceptable to the general public without changing their fundamental character.

According to Christopher Seeds, reforms often “act as forums in which the nature of criminality is addressed and perspectives on it are refurbished.”33 Not only do reforms reinforce and at times even increase carceral capacity, they do so while distracting from and often demobilising demands for real change by providing the illusion of change. As Dean Spade reminds us,

“reforms emerge in the face of disruptive movements demanding justice but for the most part are designed to demobilise by asserting that the problem has been taken care of, meanwhile making

31Kay Whitlock, “Endgame: How ‘Bipartisan Criminal Justice Reform’ Institutionalizes a Right-Wing, Neoliberal Agenda”, Political Research Associates, June 6, 2016, https://www.politicalresearch.org/2017/06/06/endgame-how-bipartisan-criminal-justice-reform-institutionalizes-a-ri ght-wing-neoliberal-agenda. 32 Ibid. 33 Christopher Seeds, “Bifurcation Nation: American Penal Policy in Late Mass Incarceration”, Punishment & Society 19, no. 5 (December 2017), 592. 17 as little material change as possible.”34 The importance of reform is often not so much in changing the system as in achieving the appearance of change, in order to ameliorate critique of the system as is. Reformist reform improves circumstances for a select few or on the surface level to distract from the reality that white supremacy is inherent to the prison and cannot be reformed out of existence. In sum, reforms reify and refurbish carceral logics, increase carceral capacity, and legitimise the prison, distracting from the reality that the abuses of the prison are inherent to it.

The Violent/Nonviolent Binary

As anti-carceral activism on issues including sentencing and bail reform has gone mainstream, liberal reformism has started to question what constitutes criminality, with discussions of racialised criminality becoming increasingly popular. Even so, liberal prison reformers, in seeking to create a sympathetic object of reform, continue to differentiate between supposedly dangerous, high risk “violent offenders” and low risk, relatively innocent “nonviolent offenders,” thus intensifying the violent/nonviolent binary. This dichotomy between so-called violent and nonviolent offenders (and violent and nonviolent crimes) has, according to Seeds, come to “define the present moment in American penal policy.”35 Seeds argues that what he calls bifurcation, dividing “low level and nonviolent from serious and violent offending, seeking to punish the former less and the latter more” has become central to contemporary reform; “if the penal policies of the last decades of the 20th century reflected a blanket penal severity that continued largely unabated despite assorted policy efforts to curtail it, present-day developments push in both directions at the same time.”36

34 Dean Spade, Normal Life, 132. 35 Seeds, “Bifurcation Nation: American Penal Policy in Late Mass Incarceration”, 592. 36 Ibid. 18

Although this distinction between violent and nonviolent may seem logical to many, the differentiation is incredibly arbitrary in reality. In many cases the labels do not mean what we might imagine them to. One might assume the “violent” category would include only the most extreme of harms, such as murder and rape. However, this is often far from the case. According to the Justice Policy Institute, “an act may be defined as a violent crime in one place and as a nonviolent crime somewhere else. The law may define something as a nonviolent crime, but a corrections department may define the same behavior differently.”37 What gets charged as a violent offence is highly arbitrary; they are categorised differently by state, depend on context

(such as whether a firearm is present, regardless of whether it is relevant to the charges), and carry different consequences. For example, yelling at a police officer has been charged as a violent offence in Washington, D.C., and until recently in California, “robbing an empty house could be considered a violent act.”38 Crimes for which you can get charged and convicted as a violent criminal also include marijuana possession (Minnesota), trafficking a stolen identity or selling drugs within 1,000 feet of a playground or school (North Carolina), and illegally possessing a gun and bullets (New York.)39 These are only a few examples out of countless confusing and arbitrary designations of violence to behaviours that would likely not be commonly identified as such, and this is to say nothing of the treatment of repeat offenses. With this in mind, it is entirely unsurprising that the life-sentenced population in the United states does not look like we might expect it to. It includes not only those accused of the most serious of harms but also far more banal and innocuous behaviours, like stealing tools from a tool shed, carrying drugs for an abusive boyfriend, taking a wallet from a hotel room, and borrowing a

37 Justice Policy Institute, “Defining Violence: Reducing Incarceration by Rethinking America’s Approach to Violence”, August 2016, 9. 38 Josie Duffy Rice, “My Brother, the Violent Offender”, Slate, August 14, 2017. 39 Eli Hager, “When ‘Violent Offenders’ Commit Nonviolent Crimes”, The Marshall Project, April 3, 2020. 19 co-worker’s truck.40 Additionally, as activist Micah Herskind points out, “the inaccuracy cuts both ways… most convictions resulting from plea bargains, even many of those who plead to

‘nonviolent’ offenses, might have done something we would consider violent.”41

Not only is the nonviolent category as an object of reform wholly arbitrary, it is numerically limited. For reformers who want to significantly reduce the prison population, the category of “nonviolent” offenders encompasses too small a percentage of those incarcerated to make a meaningful numerical difference. According to the Marshall Project, “simple math shows why violent offenders would have to be part of any serious attempt to halve the number of prisoners”; 54% of the 1,315,000 people incarcerated in state prisons in 2015 were convicted of violent crimes.42 In contrast, the Justice Policy Institute estimates that, in order to lower its incarceration rate to that of European countries (assuming that is the goal), the U.S. would have to reduce its incarcerated population by 80 percent; “the data show that the only way to bring down prison and jail populations to a level that looks like the opposite of ‘mass incarceration’ will involve changes to laws, policies, and practices that change how society responds to violent crime.”43

Although these practical and philosophical concerns are clearly important, my interest is discursive and normative. I believe that the violent/nonviolent bifurcation that liberal reform efforts have come to rely upon is a key carceral ideology, the naturalisation of which makes incarceration more credible and might enable it to expand its scale. As I outlined previously, reforms often serve to refurbish existing perspectives on the prison, and to otherwise legitimate

40 The American Civil Liberties Union, “A Living Death: Life without Parole for Nonviolent Offenses”, accessed April 11, 2021, https://www.aclu.org/report/living-death-life-without-parole-nonviolent-offenses. 41 Micah Herskind, “Three Reasons Advocates Must Move Beyond Demanding Release for ‘Nonviolent Offenders’”, Medium, April 19, 2020. 42 Dana Goldstein, “How to Cut the Prison Population by 50 Percent,” The Marshall Project, March 4, 2015. 43 Justice Policy Institute, “Defining Violence”, 3, 30; See John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017.) 20 and expand it. In other words, my concern is that by zeroing in on the violent/nonviolent binary, reformers who hope to challenge our understanding of criminality risk reinforcing it on new terms. By advocating for leniency only towards those deemed nonviolent, they not only reinforce the prevalent existing binary categories of innocence/guilt and citizen/criminal, but popularise another, thus ensuring the enduring legitimacy of the prison even as people start to question and reject the former constructs. The normative stakes of this are the further entrenchment and expansion of the carceral system. Entrenchment might occur because incarceration is justified as a method of controlling “violent” populations; expansion might occur when strategies that allow for the release of those categorised as nonviolent from prisons and jails introduce alternative forms of incarceration, thus creating new terrains of punishment.

Entrenching the Carceral State

The de-prioritisation of nonviolent and drug-related crimes is often posed as a way to free up resources to ensure that those truly deserving of punishment receive it. This validates that there are those who deserve to be punished in a prison system that relies on long sentences, life without parole, and solitary confinement—let alone that prison, itself, is a just form of punishment. For example, many reform organisations, such as The Innocence Project and the

Equal Justice Initiative, call for the release of individuals incarcerated for charges of which they were falsely convicted. In doing so, they often rely on ideas of innocence and deservingness that often (either explicitly or implicitly) juxtapose them against the “real criminals” who do deserve to be incarcerated. To rely on innocence alone is to validate that there are people who are guilty and who deserve to be punished by incarceration. As such, advocating for the release of incarcerated individuals on the basis of their “innocence” is to assume (and thus reify) the 21 legitimacy of the category of criminality. If we are to argue that some people do not deserve to be incarcerated on the basis of their supposed innocence, then there must also be people who do deserve to be incarcerated on the basis of their supposed guilt. Or, as Gilmore puts it,

It establishes as a hard fact that some people should be in cages, and only against this desirability or inevitability might some change occur. And it does so by distinguishing degrees of innocence such that there are people, inevitably, who will become permanently not innocent, no matter what they do or say.44

Similarly, by advocating for the release only of those deemed nonviolent, often coupled (either implicitly or explicitly) with the promise of more severe punishment for “violent” offenders, reformers reinforce racialised moral categories that threaten to entrench the carceral system.

Recently, activists have started to draw attention to this concern. For example, Herskind insists,

“we must stop legitimising incarceration for one group while advocating against it for another,” drawing attention to the fact that the incarceration of “violent offenders” has been

“near-universally accepted as objective,” despite the fact that the label of “violent offender”

“conjures an always-racialised image of a group of menacing (read: Black) people who will go on a violent rampage as soon as they are released.”45 This “violent offender” that is conjured in the popular imagination is, as Herskind points out, a racialised figure that serves to justify punishment and confinement, in so much that these are the tools presented as necessary to keep the community safe from them.

These individuals are almost always presented as fundamentally incorrigible, as so fundamentally and eternally wicked as to be completely beyond rehabilitation. This ethos informs life sentences without the possibility of parole (LWOP), which condemn an individual to incarceration for the rest of their natural life. As of 2016, 162,000 people in prison were serving a life sentence, with an additional 44,311 serving “virtual life” (sentences of 50 years or more),

44 Gilmore, “Abolition Geography and the Problem of Innocence”, 234. 45 Herskind, “Three Reasons Advocates Must Move Beyond Demanding Release for ‘Nonviolent Offenders.’” 22 together representing 13.9% of the prison population.46 Despite this being a fairly significant population, mainstream reformers tend to be entirely unconcerned with lifers, except when they believe them to have been wrongfully convicted. Life sentencing is often seen as a “more humane” alternative to death sentencing, and as such is often encouraged not only by “tough on crime” conservatives, but also by many death penalty abolitionists.47 This supposed relative benignness ignores the fact that life sentences also entail death, leading many to instead call them

“death in prison” sentences. Political Scientist Nolan Bennett relays the story of a woman sentenced to life in Missouri, who was prompted by her caseworker to choose her plot in the prison cemetery, and came to the horrific realisation that “the state was patiently waiting for [her] to die.”48 For her and many others, LWOP and virtual life sentences represent a permanent removal from their communities, but also “a statement of condemnation against even the mere possibility [they] might, someday in the future, manage to struggle against the odds and become better than their worst moment.”49 This is the ultimate expression of disposability, that some are so entirely unworthy that they do not deserve even the slightest chance of redemption.50

Such expressions of irreformability, irredeemability, and incorrigibility are far from new.

In fact, Andrew Dilts asserts that the liberal state has always been based on punishment via the characterisation of some as incorrigible. He draws on John Locke to establish that liberalism is not only compatible with punishment, but that liberalism fundamentally relies on punishment.

Locke insists that “the law of nature would, as all other laws that concern men in this world, be in vain, if there were nobody that in the state of nature had a power to execute that law, and

46 Ashley Nellis, Still Life: America’s Increasing Use of Life and Long-Term Sentences, The Sentencing Project, May 3, 2017. 47 Nolan Bennett, “‘The State Was Patiently Waiting for Me to Die’: Life without the Possibility of Parole as Punishment:” Political Theory (June 1, 2020), 7. 48 Ibid., 2. 49 Ibid., 13. 50 See Alice Kim, Erica R. Meiners, Audrey Petty, Jill Petty, Beth E. Richie, and Sarah Ross, eds. The Long Term: Resisting Life Sentences, Working Toward Freedom (Chicago: Haymarket Books, 2019.) 23 thereby preserve the innocent and restrain offenders.”51 For Locke, the rules and rights that govern liberal society are useless if not enforced by punishment. So, the right to punish is essential in that “in transgressing the law of nature, the offender declares himself to live by another rule, than that of reason and common equity… and so he becomes dangerous to mankind.”52 Locke describes the criminal as a “noxious creature,” who by violating the law

“becomes degenerate, and declares himself to quit the principles of human nature.”53 The violation is not just of the law, but of the social/racial contract that it implements. Dilts further asserts that, “in the moment of identification as a criminal, an individual simultaneously becomes responsible for a specific transgression and becomes a kind of person who embodies transgression itself.”54 So, the criminal represents a way of being that is antithetical to the liberal order; to punish him is not only to enforce the law of nature (and thus to ensure compliance) but to uphold the liberal order itself. As such, punishment serves as the essence and basis of political power, and is thus inherent to the liberal state.55

The criminal is a threat to the liberal order, but also, the liberal order can only define itself as rational and reasonable in opposition to the criminal, who “carries the burden of danger and irrationality.”56 The citizen, too, is defined in opposition to the criminal. His rights are only secure, as Locke argues, because he has the right to punish anyone who trangresses upon them.

So, the exclusion that punishment entails defines and maintains the boundaries of political membership.57 The punitive prerogative itself relies not only on the existence of the criminal, but on the characterisation of the criminal (or some subsection of criminals) as so deeply and

51 John Locke, Second Treatise of Government: An Essay Concerning the True Original, Extent and End of Civil Government (Somerset: John Wiley & Sons, Incorporated, 1982), 5. 52 Ibid. 53 Ibid., 6. 54 Ibid., 108. 55 Dilts, Punishment and Inclusion, 89. 56 Ibid., 88, 99. 57 Ibid., 86, 99. 24 inherently wicked as to be beyond any form of redemption or reform. Drawing on Locke’s thief,

Dilts uses the figure of the felon to illustrate this point. Dilts distinguishes the felon from

Foucault’s delinquent in that, although both seem to be “permanent criminological fixture[s],” the felon is figured as irreformable. The felon, “both as a category and in individual cases, seems to figure the unredeemable, the unreformable, and the persistent criminal other.”58 The liberal state engages in the discursive production of the criminal in order to rationalise its right to punishment—as well as to rationalise the liberal state as a punitive state.

These figures of the criminal (the felon, the thief, the violent offender) are incredibly prominent in what Caleb Smith terms the “social imaginary” of punishment in the United States,

“the ways of seeing, narrating, knowing by which actors ground criminal justice practices.”59

These fictive characters structure the way that we think about the prison, representing the perceived need for punishment and confinement (to uphold the rights and safety of the liberal subject, as well as the integrity of the liberal order), and thus mobilising support for carcerality.

The prison fabricates the criminal, and the criminal justifies the prison.

These ideas are so deeply ingrained that the knee-jerk response to abolitionist ideas is always centered around concerns about what a society without prisons would do about the

“dangerous few,” a “statistically insignificant and socially unpredictable handful of the planet’s humans whose psychopathic actions are the stuff of folktales, tabloids (including the evening news and reality television), and emergency legislation.”60 Despite having never come into contact with such a person, the average individual has such conviction in their existence (and abundance) as to defend a carceral system which they may know to be harmful, ineffective, and

58 Ibid., 49. 59 Caleb Smith, The Prison and the American Imagination (New Haven: Yale University Press, 2009) in Bennett, “The state Was Patiently Waiting For Me to Die”, 13. 60 Ruth Wilson Gilmore, Golden Gulag Prisons: Surplus, Crisis, and Opposition in Globalizing California. (Berkeley: University of California Press, 2007), 15. 25 racist. By relying on a categorisation of some as irreformable, the violent/nonviolent binary reinforces and legitimises the punitive foundations on which the liberal nation state rests.

Some scholars and activists utilise an understanding of the U.S. as a carceral state to demonstrate that not only is punishment foundational to the state, but the state has remade itself through its punitive functions. For Story, this means that “the expansion of prisons and criminalisation mechanisms that lead to imprisonment are politically organised as well as underwritten by the state, which is itself in the process of radical restructuring.”61 The carceral state exerts its power not just through its punitive institutions, but also through the norms and discourses that are created by and justify these institutions. In understanding the U.S. as a carceral state, it becomes clear why we cannot just keep chipping away at the “nonviolent.” By engaging with the system on its own (racialised) terms, we are justifying the very same punitive state that we seek to destroy. Once we acknowledge that we live in a state that is based on punishment and racial control, we have to question whether it is at all possible to have punishment that isn’t racialised. This is a tension that abolitionists acknowledge, and one that raises the question of whether we should engage in punishment at all.

Abolitionists argue that it is not right to define people by one single moment in their life, and reject the assertion that anyone is beyond redemption or mercy. Even if there were easily defined, unbiased, universal “violent offenses” of which people could be unequivocally guilty

(which, as we’ve established, is rather unlikely), that doesn’t mean that there would be “violent offenders.” We have all done harm and been violent in some way or another in our lives, but that does not mean we are defined by it—why should anyone else be? This is not to mention that statistics show that people who commit homicide and other serious harms are incredibly unlikely

61 Story, Prison Land, 16. 26 to do so again.62 Neatly splitting people into nonviolent (ultimately harmless, deserving of mercy) and violent (incorrigible, irredeemable, deserve to be locked up eternally) is a much more complicated and morally fraught decision than it may at first seem. As Josie Duffy Rice so aptly puts it:

Some of the most important questions we can ask about violent criminals have more to do with philosophy than policy. Is violence a permanent and immutable condition? Is violence always physical? What if a person is harmed and hurt and scared but never touched? Is fear a prerequisite for violence? How much does intention matter? Is violence more violent if you wear a certain color or if you’re friends with certain people? If you’re a certain race? Should those who are deemed violent be condemned forever, or are there violent people wasting away in prison cells who deserve our mercy?63

Clearly, categorisations like violent and nonviolent are incredibly simplistic, and flatten incredible complexity into two neat labels that ignore the lived realities of the people they are used to describe. Micah Herskind further argues that “living in the risk assessment era has warped our understanding of humanity”, in so much that we are told that dangerousness is something “that resides within a person”, and which informs someone’s likeliness to be violent or do harm. Instead of attempting to understand or ameliorate the “unsafe conditions, precarious living situations, or highly specific moments” that may produce violence and harm, we demonise the individuals who are subject to these conditions (and to the resulting harm). In other words,

“risk assessment transmutes societal harm into individual threat.”64

With this in mind, I believe that the violent offender has come to serve as the predominant proxy for criminality, whereby Blackness is associated with incorrigibility through violent criminality, in order to justify control of racialised populations. The violent/nonviolent binary, as a falsely dichotomising terminology, reflects an acceptance of the false moral constructions that underpin incarceration. If this is true, then this newly intensified, seemingly

62 Ibid., 6, 14. 63 Duffy Rice, “My Brother, The Violent Offender.” 64 Herskind, “Three Reasons Advocates Must Move Beyond Demanding Release for ‘Nonviolent Offenders.’” 27 neutral and self-evident terminology may serve as an indicator of reformist reform, that will legitimise, entrench, and even expand the existing carceral system. Even as many are challenging other racialised categories of criminality, they nonetheless fall into the trap of relying on the violent/nonviolent binary, thus reaffirming the same carceral logics they seek to reject. As such, the violent/nonviolent binary, and the reforms it engenders “embody and enact a new way of thinking about the role of the prison in society, in effect refurbishing the institution amidst critiques of its overuse.”65 Later in my thesis, I will explore the language and ramifications of specific reforms (including sentencing and bail reform, and responses to COVID-19 in prisons and jails) that rely on the violent/nonviolent binary.

Expanding the Carceral state

Another danger of relying on dichotomising categorisations like the violent/nonviolent binary, as Gilmore so aptly conveys, is that because crime is not an immutable category, no one is safe—not even those who are deemed (relatively) innocent. Even if, in the short term, appeals to innocence can help free a few, there is no guarantee that guilt (or other categories of deservingness, including violent/nonviolent) will not grow to include them, seeing as “the way the system works is to move the line of what counts as criminal to encompass and engulf more and more people into the territory of prison eligibility.”66 For example, Law and Schenwar have argued that many who “otherwise might never be subject to state-sanctioned confinement” are ensnared by the “softer”, more palatable “alternatives to punishment.”67 Because these so-called alternatives may seem less harsh, they go largely unquestioned, despite often closely resembling

65 Seeds, “Bifurcation Nation”, 593. 66 Jenna Loyd and Ruth Wilson Gilmore, “Race, Capitalist Crisis, and Abolitionist Organizing: An Interview with Ruth Wilson Gilmore, February 2010” in Beyond Walls and Cages: Prisons, Borders, and Global Crisis, ed. Jenna Loyd, Matt Mitchelson, and Andrew Burridge (University of Georgia Press, 2012), 43. 67 Victoria Law and Maya Schenwar, Prison by Any Other Name: The Harmful Consequences of Popular Reforms (New York: The New Press, 2020), 30. 28 the structures they purport to displace. For example, Brett Story posits that electronic monitoring represents an extension of, rather than an alternative to incarceration. Not only do ankle monitors render an individual subject to constant surveillance, they also harshly constrict movement and behaviour. Given that people are often charged exorbitant amounts for the monitors they are forced to wear, they are often considered an effective way for the state to cut costs, while still prioritising punishment, incapacitation, and control.68 So, if we really want to shrink the scope of incarceration, “the problem, then, is not to figure out how to determine or prove the innocence of certain individuals or certain classes of people, but to attack the general system through which criminalization proceeds.”69 The bulk of those incarcerated will not benefit from assertions of innocence of a few; rather, the system is able to legitimise the majority of what it does “by eliminating its most obvious contradictions.”70

The reforms that nonviolent offenders are subject to often involve community corrections, “an imprecise but infinitely elastic term referring to placement of people convicted of or cited for offenses under some form of community supervision: halfway houses, work-release programs, “community-based correctional facilities,” home detention and electronic monitoring, drug courts and mandated drug treatment programs, and “offender-funded probation.”71As I outlined previously, “alternatives to incarceration” such as these are often merely alternative forms of incarceration, in so much as they tend to retain the elements of surveillance, monitoring, and control central to incarceration.72 Not only are those convicted of nonviolent offenses diverted from prison to these alternatives forms of incarceration, but,

68 Brett Story, Prison Land: Mapping Carceral Power across Neoliberal America. (Minneapolis: University Of Minnesota Press, 2019), 161-4. 69 Ibid., 43. 70 Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law (Durham, [North Carolina]: Duke University Press, 2015), 48-9. 71 Kay Whitlock, “Community Corrections: Profiteering, Corruption and Widening the Net”, Truthout, November 20, 2014. 72 Wang, Carceral Capitalism, 39-40. 29 increasingly, many who have never been convicted (or even arrested) are forced into them, or else risk being formally charged, with “even worse consequences accompanying possible conviction.”73 Even if they comply, many will end up incarcerated anyway, for violating one of many unreasonable conditions, such as failing to pay fees associated with electronic monitoring, despite never having been formally convicted.74 Reforms that entail these alternative forms of incarceration have the potential to increase carceral capacity, not only in the literal sense, but in terms of the capacity for harm, often while decreasing the cost to the state of detaining an individual.

73 Kay Whitlock, “Endgame: How ‘Bipartisan Criminal Justice Reform’ Institutionalizes a Right-Wing, Neoliberal Agenda”, Political Research Associates, June 6, 2016. 74 Ibid. 30

Chapter II - “Tinkering Towards Imperfection”: Sentencing Reform, Selective

Incapacitation, and the Presumed Inevitability of Violence

If the starting point is that prisons are intrinsically evil and should be abolished, then the first principle of reform should be to have as few people as possible confined, for as short a time as possible.75

- Jessica Mitford

Rahsaan Thomas, known to his friends as “New York,” has been in prison for 20 years.76

He is serving a 55-to-life sentence (with a 35-year enhancement for using a firearm) for second-degree murder that he committed when he was only 19 years old. Still, 20 years on, he is far from escaping the stigma of his designation as a “violent” offender. Because of the supposedly violent nature of his crime of conviction, he was denied COVID-related release.

Later, while recovering from coronavirus, which was brought into San Quentin, where Rahsaan is incarcerated, by a transfer from California Institution for Men in Chino (which had 450 active cases at the time), his appeal to overrule his conviction was denied “without prejudice.”77 Unable to properly access the law library or telephone due to quarantine restrictions (which were ostensibly not working all that well), he decided to hire a lawyer and started to raise money on

GoFundMe with the help of a friend on the outside. After having raised over $14,000, his

GoFundMe was suddenly cancelled, and all the money was refunded. Rahsaan and his friend had no idea what happened. They later discovered that GoFundMe doesn’t allow legal campaign

75 Mariame Kaba, “Prison Reform’s in Vogue and Other Strange Things”, Truthout, March 21, 2014, https://truthout.org/articles/prison-reforms-in-vogue-and-other-strange-things/. 76 Rahsaan Thomas, “A Question of Violence”, The Marshall Project, December 18, 2020, https://www.themarshallproject.org/2020/12/18/a-question-of-violence 77 “Without prejudice” means you can refile the same issue in that same court—something that does not usually happen. This was not exactly the decision I wanted, but at least they left the door open for me to resubmit the appeal I had filed in February, which included new evidence”, ibid. 31 fundraising for crimes that involve violence. Frustrated by his inability to escape the stigma associated with his conviction, Rahsaan lamented, “without regard for the circumstances of my case or who I am today, I was once again being judged for something I did 20 years ago—something I wish to God that I could change but can’t, no matter how many other changes

I have made.”78 Cases like Rahsaan’s have generated calls for sentencing reform from actors as varied as the Koch Brothers, Cory Booker, and abolitionist organisers. Ironically, however, many of the reforms borne out of circumstances like Rahsaan’s leave him (and people like him) out.

Abolitionists and prison reformers have been organising and advocating for sentencing reform for decades. In the early 2000s, however, sentencing reform stepped into the mainstream.

Although sentencing reform was initially a niche and unpopular project, proponents now include many of the same politicians and organisations that led the initial drive to mass incarceration.79

Scholars and activists have argued that mainstream sentencing reforms, which rely on the violent/nonviolent binary, will not lead to decarceration. The majority of the prison population

(and subsequently, prison growth) can be attributed to an increase in the length and proportion of long and life sentences in state prisons. Because those deemed violent, who make up most of those serving long and life sentences, are exempted from reform efforts, those reforms won't affect the sentences that contribute to high prison numbers—and therefore, they will not achieve decarceration on any meaningful scale. Further, bifurcated sentencing reform will not reduce racial disparities in sentencing, because these disparities are exaggerated in populations serving the same longer sentences that reformers want to maintain—and even lengthen. More importantly, however, I argue that sentencing reform that relies on the violent/nonviolent binary reinscribes racialised conceptions of violence that legitimise the carceral state—which is, in

78 Ibid. 79 Shane Bauer,“How Conservatives Learned to Love Prison Reform”, Mother Jones, March-April, 2014, accessed May 6, 2021, https://www.motherjones.com/politics/2014/02/conservatives-prison-reform-right-on-crime/. 32 itself, a purveyor of violence.

I develop my argument through an engagement with the Sentencing Reform and

Corrections Act of 2015 (S.2123/ H.R.3713). This legislation not only demonstrates the tendency to differentiate between “violent” and “nonviolent” in the sentencing policy it proposes, but also represents a piece of bipartisan reform that (as a result of this differentiation) panders to racialised constructions of criminality. The Sentencing and Reform and Corrections Act and the discourse surrounding it assume that violence is immutable and inevitable, and that it must be responded to harshly and punitively. In sum, by relying upon the violent/nonviolent binary, the

Sentencing Reform and Corrections Act reinscribes the racialised conceptions of violence that it informs. As such, it legitimises the punitive nature of the carceral state.

Bifurcation Exemplified: The Sentencing Reform & Corrections Act

The Sentencing Reform and Corrections Act embodies the bifurcation between violent and nonviolent crimes that Seeds and others have diagnosed in contemporary prison reform efforts. While the legislation reduces the mandatory minimum sentences for certain convictions, it increases them for others. The legislation would decrease the mandatory minimums for certain

“nonviolent,” “cooperative” defendants convicted of low-level repeat drug offenses and high-level first time drug offenses (with the latter including unlawful import, export, manufacture, or distribution of, or possession with intent to distribute a controlled substance.)” It would also reduce sentences for unlawful firearm possession or use.80 Importantly, it does not actually eliminate these mandatory minimums, but merely decreases them—usually by only five or ten years (from twenty or thirty.) Furthermore, the legislation also entails an increase to other sentences, including creating a 10-year mandatory minimum for “interstate domestic violence

80 Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Congr. §101-5 (Reg. Sess. 2015). 33 that results in a victim's death” and a five-year mandatory minimum for “providing goods and services to terrorists or a state sponsor of terrorism, to any person in connection with development of weapons of mass destruction, or to a country subject to an arms embargo.”81

Additionally, in response to organising by correctional officers, who demanded weapons to protect themselves, the legislation included a section requiring that the Bureau of Prisons issue pepper spray to DOC employees “for use in reducing violent acts.”82

The bill had significant bipartisan support. The Senate version of the bill was authored by

Senate Judiciary Chairman Chuck Grassley, co-authored by Assistant Democratic Leader Dick

Durbin, and sponsored by Senators John Cornyn (R-Texas, Sheldon Whitehouse (D-RI), Mike

Lee (R-Utah), Charles Schumar (D-NY), Lindsey Graham (R-SC), Patrick Leahy (D-VT), and

Cory Booker (D- NJ.) The house version, meanwhile, was authored by House Judiciary

Chairman Bob Goodlatte (R-VA). Beyond its Democratic and Republican authors and sponsors, the National District Attorneys Association (NDAA), albeit after extensive negotiations, wholeheartedly supported the legislation, stating in a letter to Senate Majority Leader Mitch

McConnell and Minority Leader Harry Reid, “our organization feels the latest version of the bill strikes the appropriate balance between targeting the highest level drug traffickers plaguing our communities, while simultaneously decreasing crime rates and addressing the burgeoning prison population.”83 Meanwhile, the Sentencing Project also supported the legislation, encouraging its supporters to call their senators to secure their backing for the bill, insisting that it would “restore

81 Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Congr. §107-8 (Reg. Sess. 2015). 82 Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Congr. §207 (Reg. Sess. 2015). 83 William Fitzpatrick, Letter on behalf of the National District Attorneys Association to Sens. Mitch McConnel and Harry Reid, Alexandria, VA, April 26, 2016. https://www.judiciary.senate.gov/imo/media/doc/2016-04-26%20National%20District%20Attorneys%20Association %20-%20Sentencing%20Reform%20and%20Corrections%20Act.pdf. 34 fairness to the criminal justice system while promoting better outcomes for public safety.”84

However, the bill faced substantial opposition from most Republican senators, including

Tom Cotton (R-AK), who was insistent that “it would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons.”85

This harsh opposition ultimately prevailed, with the bill dying before it was even scheduled for a vote on the Senate floor. To gain more support for the measure, bill sponsors announced revisions on April 28, 2016. Most notably, the revised bill entailed new mandatory sentencing enhancements for crimes involving fentanyl, substantially limited its changes to mandatory minimums for crimes involving firearms, and excluded those convicted of any “serious violent felony from retroactive early release in order “to ensure violent criminals do not benefit from reduced sentence opportunities established by the bill.”86

Commenting on the revised version of the bill Cory Booker said,

For decades, our broken criminal justice system has held our nation back from realizing its full potential. Today, we take a step forward. Mass incarceration has cost taxpayers billions of dollars, drained our economy, compromised public safety, hurt our children, and disproportionately affected communities of color while devaluing the very idea of justice in America. The Sentencing Reform and Corrections Act is a promising, bipartisan step forward to help right this wrong.87

On the other side of the political spectrum, Lindsey Graham stated that he was proud to support the legislation; “we maintain the tools law enforcement needs to continue making sure that the worst drug traffickers and violent criminals stay off of our streets. We also provide

84 Marc Mauer, Unlocking Justice: The Sentencing Reform and Corrections Act of 2015, The Sentencing Project, November 17, 2015, https://www.sentencingproject.org/publications/sentencing-reform-and-corrections-act-of-2015/. 85 Seung Min Kim, “Cotton Leads Effort to Sink Sentencing Overhaul”, Politico, January 25, 2016, https://www.politico.com/story/2016/01/criminal-justice-tom-cotton-218121. 86 “Sentencing Reform & Corrections Act Expands Bipartisan Support”, U.S. Senator Cory Booker of New Jersey, April 28, 2016, accessed April 30, 2021, https://www.booker.senate.gov/news/press/sentencing-reform-and-corrections-act-expands-bipartisan-support. 87 “Senators Announce Bipartisan Sentencing Reform and Corrections Act”, United States Senate Committee on the Judiciary, October 1, 2015, accessed April 28, 2021, https://www.judiciary.senate.gov/meetings/senators-announce-bipartisan-sentencing-reform-and-corrections-act. 35 flexibility in sentencing for those offenders that deserve it.”88 The amended bill was reintroduced on October 4, 2017 as the Sentencing Reform and Corrections Act of 2017 (S. 1917), but was once again stalled, this time by concerns about the impact of the bill on racial disparities in sentencing brought up by the National Urban League (NUL.) President of the NUL, Marc

Morial, urged Congressional leaders to delay floor votes on both H.R. 3713 and S. 2123 until comprehensive data analysis had been performed “on the likely or potential risks of each provision… on particularly African American and Hispanic individuals in the criminal justice system.”89 The bill was ultimately not brought to a vote in either the House or the Senate.

This is not to say that the legislation was meaningless; rather, the buildup of mass incarceration can be attributed to many cumulative policies and practices, whose significance only became fully apparent in hindsight.90 Although the legislation was limited in scope and ultimately failed, it still has important implications whose ripple effects continue to shape the policy arena to this day. The Sentencing and Corrections Act of 2015 ostensibly went on to influence later legislation, just as it was influenced by that which came before it. In March of

2016, President Obama signed the Eric Williams Correctional Officer Protection Act of 2015 (S.

238), which required the BOP to issue pepper spray to its employees.91 Although the Sentencing

Reform and Corrections Act ultimately died, its section requiring the use of pepper spray lived on to become a public law that tangibly increases the ability of federal correctional officers to do harm to the people under their supervision. Further, elements of the Formerly Incarcerated

88 Ibid. 89 Lauren Victoria Burke, “National Urban League Urges Congress to Delay Action on Justice Bills”, NBC News, March 28, 2016, https://www.nbcnews.com/news/nbcblk/national-urban-league-urges-congress-delay-action-justice-bills-n546721. 90 See James Forman Jr., Locking Up our Own: Crime and Punishment in Black America (New York: Farrar, Straus and Giroux, 2017.) 91 Eric Williams Correctional Officer Protection Act of 2015, S.238 114th Congr. (Reg. Sess. 2015); “Eric Williams Victory”, American Federation of Government Employees, March 18, 2016. https://www.afge.org/article/from-tragedy-to-triumph-the-legacy-of-officer-eric-williams/. 36

Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) Act of 2018 clearly show influence from the Sentencing Reform and Corrections Acts of 2015 and 2017. The

First Step Act includes more limited versions of the Sentencing Reform and Corrections Act’s provisions to reduce mandatory minimums and expand safety valves for nonviolent drug offences, while expanding the number of convictions that exclude people from receiving “good time” credits for early release.92

Sentencing Reform Is Not Decarceration

Critics of the Sentencing Reform and Corrections Act argued that it would barely put a dent in the nation’s massive prison population. To understand this, consider the buildup of state prison populations. Between 1980 and 2021, the population of people incarcerated in state prisons in the US grew from 295,350 to 1,362,000.93 This increase can be largely attributed to the proliferation of long and life sentences, with long and life sentences for “violent” offenders accounting for over half of this growth. Between 2000 and 2014, the average sentence length rose in all forty-four states that replied to an Urban Institute survey.94 According to the study, in almost half of the states surveyed, the “average time served by the longest serving 10 percent had risen by more than five years.” Further, between 1980 and 2009, the population in state prisons for violent offenses increased by over 300%.95 This trend is particularly disturbing when we consider that racial disparities are even more extreme among those serving life sentences than

92 Jamiles Lartey, “Trump's prison reform: Republicans on side but some progressives hold”, The Guardian, June 5, 2018, https://www.theguardian.com/us-news/2018/jun/05/trump-prison-reform-first-step-act-tension. 93 Alexi Jones, Reforms Without Results: Why states Should Stop Excluding Violent Offenses from Criminal Justice Reforms, Prison Policy Initiative, April 2020, https://www.prisonpolicy.org/reports/violence.html, 3-4. 94 James Kilgore, “Lock ‘Em Up and Throw Away the Key: The Historical Roots of Harsh Sentencing and Mass Incarceration, James Kilgore”, in The Long Term: Resisting Life Sentences, Working Toward Freedom, Alice Kim, eds. Erica R. Meiners, Audrey Petty, Jill Petty, Beth E. Richie, and Sarah Ross (Chicago: Haymarket Books, 2019), 87. 95 Jones, Reforms Without Results, 4. 37 they are among the general prison population. In Pennsylvania, Black people represent only 11 percent of the state’s population, 49 percent of those in prison, and a massive 60 percent of those serving the longest prison terms.96 Further, as I will discuss in the next section, the Sentencing

Reform and Corrections Act does nothing to challenge racialised notions of criminality and violence.

This is not to mention that the Sentencing and Corrections Act is a piece of federal legislation that has no bearing on those incarcerated in state prisons throughout the country.

People incarcerated in federal prisons represent just 13 percent of all people in prison, and, including jail populations, just 9 percent of people behind bars in the US.97 The decrease in mandatory minimums resulting from the 2015 version of the bill would only have affected just under 4,000 individuals a year (and a further 4,800 retroactively.)98 On another level, what release the legislation would allow doesn’t necessarily entail freedom from carceral control.

Most who are able to attain early release are released to pre-release facilities under parole, and/or subject to electronic monitoring.99 As discussed in the previous chapter, although parole and other forms of community corrections are framed as human alternatives to incarceration, they merely serve as alternative forms of incarceration that, as such, “come with profound costs to the individuals remanded to them and the communities already reeling from the impacts of mass incarceration.”100 In summary, the Sentencing Reform and Corrections Act, and anything modeled on it at the state level, is likely going to fail both in reducing prison populations and in confronting racial disparities.

96 Kilgore, “Lock ‘Em Up and Throw Away the Key”, 96. 97 Shane Bauer, “The New Bipartisan Criminal-Justice Reform Bill Doesn’t Live Up to Its Own Hype”, Mother Jones, October 2, 2015, https://www.motherjones.com/politics/2015/10/. 98 Kim, “Cotton Leads Effort to Sink Sentencing Overhaul.” 99 Sentencing Reform and Corrections Act of 2015, S. 2123, 114th Congr. §203 (Reg. Sess. 2015) 100 Whitlock, “Endgame.” 38

Sentencing Reform Inscribes Violence

Perhaps the most important critique of mainstream sentencing reform is that it fails to challenge the racist constructions of criminality that justify and perpetuate mass incarceration. In fact, it may even reinforce them. Consider, for example, the bipartisan discourse in support of the

Sentencing Reform and Corrections Act. Even those who, in their statements of support, did recognise racial disparities in sentencing did not allow this recognition to inform their analysis of this bill’s narrative and impact. Many other proponents failed to mention racial disparities in sentencing at all. Meanwhile, Republican supporters of the Sentencing Reform and Corrections

Act emphasised its ability to reduce prison population in ways that save money, allowing a shift in resources that prioritises fighting the most egregious of crimes (and thus incarcerating those most deserving of punishment.) Just as proponents of the legislation tapped into racialised anxieties about crime and violence, so too did its opponents. Beyond politicians, outside commentators, too, perpetuated this rhetoric, at times even explicitly informed by the assumption that the legislation will “inevitably lead at least one federal judge (and probably more) to release a violent criminal who will turn around and commit a high-profile violent crime.”101

In this context, reformist bipartisan discourse doesn’t only fail to adequately counter racialised constructions of criminality, it also unwittingly validates the inevitability of violence.

In peddling a watered down version of the spectre of racialised violence through the differentiation between violent and nonviolent, liberals are nonetheless feeding a monster that they will never be able to control, and that will always favour punitiveness. The idea of violence as innate and inevitable taps into culturally produced ideas about human nature, which we might

101 Jonathan Keim, “The Sentencing Reform and Corrections Act of 2015: Post-Markup Reactions and Analysis”, National Review, October 28, 2015, https://www.nationalreview.com/bench-memos/sentencing-reform-and-corrections-act-2015-post-markup-reactions- and-analysis/. 39 trace back to Thomas Hobbes’ influential theorisation of the state of nature as one of war. 102 This conception of violence is deeply racialised. Numerous studies have shown that people perceive

Black men as more violent and “physically threatening” to white men of comparable stature and strength.103 Others have shown that people even associate “[B]lack-sounding names” with propensity for aggression and violence.104 This assumption of innate Black violence is fundamental to the association of Blackness with criminality.

The liberal conception of a pathological culture of Black criminality, as discussed in

Chapter I, was very much tied into ideas of violence, whether that be manifested through crime or rioting.105 Murakawa illustrates how racialised fantasies of violence in the liberal imaginary animated law and order reforms from the post-World War II era and beyond. For liberals,

Murakawa says, Bigger Thomas (the fictional protagonist of Richard Wright’s Native Son) embodied and exemplified societal fears about the potential consequences of “socially engineered [B]lack rage.”106 As Murakawa expresses, “Bigger Thomas recurred in liberal politics as a symbol of the dangers caused by race prejudice: he was a [B]lack man engineered by race prejudice.”107 If liberals used the spectre of Bigger Thomas to combat conservative notions of biological inferiority and argue for progressive reforms, they nonetheless reinforced notions of pathological black violence necessitating social control. Fast-forwarding to the 1970s and 1980s, public anxieties about violent crime and gangs occupied both liberal and conservative

102 See Thomas Hobbes, Leviathan. (London: Bloomsbury Publishing Plc, 2006.) 103 John Paul Wilson, et al, “Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat.” Journal of Personality and Social Psychology 113, no. 1 (July 2017): 59–80. https://doi.org/10.1037/pspi0000092. 104 Colin Holbrook, Daniel M.T. Fessler, and Carlos David Navarrete, “Looming Large in Others’ Eyes: Racial Stereotypes Illuminate Dual Adaptations for Representing Threat versus Prestige as Physical Size,” Evolution and Human Behavior 37, no. 1 (January 2016): 67–78. https://doi.org/10.1016/j.evolhumbehav.2015.08.004. 105 Vesla M. Weaver, “Frontlash: Race and the Development of Punitive Crime Policy”, Studies in American Political Development 21, no. 2 (2007), doi:10.1017/S0898588X07000211. 106 Murakawa, The First Civil Right, 51; See Richard Wright, Native Son (New York: Harper, 1940.) 107 Ibid, 14 40 imaginaries and, along with the War on Drugs, justified the buildup of prisons in that era. The association was strong enough that George H. W. Bush was able to deal a significant blow to his

Democratic opponent, Michael Dukakis, by stoking racialised fears about sexual violence. This extended dog-whistle started with a television advertisement about William “Willie” Horton, a young Black man who assaulted a white married couple while on a weekend furlough from prison in Massachusetts, where he was serving a life-sentence for murder. The advertisement and the subsequent fervor that the Bush campaign used it to raise appealed to pre-existing constructions of the “violent, hypersexual [B]lack man with alleged desire for white women.”108

By the 90s, the pervasiveness of the assumption of Black bodies as violent bodies was so strong in the public imaginary that the defense attorneys for the police in the Rodney King case made the argument that “the policemen were endangered, and that Rodney King was the source of that danger.”109 The physicality of violence normatively associated with Blackness is such that

Rodney King’s body, even as he was being brutally beaten and lying on the ground, evoked violence and threat. Supposedly, if the police had not beaten him as they did, his innate violence would have been released from his body. As Judith Butler aptly expresses, “the Black body is circumscribed as dangerous” and this frames what is visible to the public eye.110

Following Murakawa and Butler, I argue that the violent/nonviolent binary cannot be separated from this racialised conception of violence. Racialised conceptions of violence pervade the binary in public discourse and imagination, and enable it to operate as it does—signalling towards racist conceptions of who is deserving of punishment, and why. So long as attempts to end racial disparities through sentencing reform fail to challenge the violent/nonviolent binary

108 Ibid. 109 Judith Butler, “Endangered/Endangering: Schematic Violence and White Paranoia” in Reading Rodney King/reading Urban Uprising, ed. Robert Gooding-Williams (New York: Routledge, 1993), 15. 110 Ibid, 18. 41

(and therefore don’t directly target racialized conceptions of criminality and violence), they will not succeed. When these bills are influenced by and include provisions that reinforce anxieties about violent criminality, without challenging their racist overtones, they threaten to reinscribe racialised criminality and punitive responses to it.

Legislation like the Sentencing Reform and Corrections Act of 2015 underwrites the violent/nonviolent binary, thus legitimising the carceral state and the harm it imposes upon the people it constructs as violent. More than failing to dismantle the racist carceral state, it reinscribes the very logics that underpin it, and that facilitated its rapid growth in the past decades. 42

Chapter III - Encoding Violence: California Senate Bill 10 and the Dangers of Algorithmic

Risk Assessment

The breach of the techno-civilized logic of computation and calculations could thus be argued as madness itself.111

- Eyal Weizmann

In May of 2017, 64-year old Kenneth Humphrey allegedly entered the home of his

79-year old neighbour, threatened him, and stole $5 and a bottle of cologne. He was arrested and charged with burglary, robbery, elder abuse and theft. He remained in custody for a year. On two different occasions he was denied release by judges who pointed to the “violent” nature of his alleged crimes. Prosecutors Allison Macbeth and Courtney Burris further claimed that Kenneth was a threat to public safety, citing previous robbery convictions going back to the 1980s, despite

Kenneth not having had any police contact for the 11 years prior to this incident.112 The state appeals court, having reviewed Kenneth’s case, found that a judge must consider the defendant's ability to pay when setting bail. Kenneth was released. This ruling spurred bail reform in

California, which ultimately led to the passage of Senate Bill 10 in 2018. Kenneth soon became the face of bail reform in California and was used in an advertisement released by Yes On 25, the statewide referendum held in 2020 to decide whether to keep Senate Bill 10 on the books.

Ironically, however, Kenneth would likely not have been released from jail while awaiting trial if

Proposition 25 had been in place. Susan Fisher, former commissioner on California’s Board of

Parole Hearing concurs, asking, “if Prop. 25 will not address the case that touched off

111 Eyal Weizman, The Least of all Possible Evils: Humanitarian Violence from Arendt to Gaza. (London; New York: Verso, 2011), 16. 112 “S.F. Man Whose Case Upended California’s Bail System Wins Release”, KQED, accessed 21 April, 2021, https://www.kqed.org/news/11666269/s-f-man-whose-case-upended-californias-bail-system-wins-release. 43

California’s bail changes, then what will it do?”113

On 28 August, 2018, Governor Edmund G. Brown of California signed Senate Bill 10.114

“Today,” he said, “California reforms its bail system so that rich and poor alike are treated fairly.”115 As I will elucidate in this chapter, however, practices of algorithmic risk assessment such as that designated by Senate Bill 10 do not improve upon a marginally flawed system of cash bail but rather encode, exacerbate, and invisibilise its fundamental injustices. By relying on racist ideas about risk and public safety, such algorithms cut more clearly across lines of race and class even than cash bail and thus further amplify the very same racialised assumptions of criminal threat that inform the violent/nonviolent binary. In this chapter, I will use the case of the

Senate Bill 10 (and its repealment via Proposition 25) to illustrate how the violent/nonviolent binary generates reforms that involve predictive algorithms, and what the normative and practical implications of such algorithms might be. Not only will they likely increase the racial and class disparities in pretrial detention, but they also are incredibly dehumanising. This dehumanising process, as facilitated through technology, is incredibly insidious, in part because it is self-perpetuating. By inputting humans (via their most basic traits), and outputting a risk level, it generates the exact risk it purports to respond to.

Further, I will argue the algorithm has the potential to itself become normalised, thus irreversibly reifying the (preexisting) association between Blackness and violent criminality.

113 Susan Fisher, “Prop. 25 Would Not Help the San Francisco Man Who Is the Face of Bail Reform”, San Francisco Chronicle, 12 Oct. 2020, https://www.sfchronicle.com/opinion/openforum/article/Prop-25-would-not-help-the-San-Francisco-man-who-1563 7844.php. 114 Known in full as “An act to amend Section 27771 of the Government Code, and to add Section 1320.6 to, to add Chapter 1.5 (commencing with Section 1320.7) to Title 10 of Part 2 of, and to repeal Chapter 1 (commencing with Section 1268) of Title 10 of Part 2 of, the Penal Code, relating to pretrial release and detention.”, “SB 10: Pretrial Release and Detention”, California Courts, accessed January 19, 2021. https://www.courts.ca.gov/pretrial.htm. 115 Ibid. 44

Additionally, in consideration of Murakawa and Muhammad’s arguments explored in my introductory chapter, I will argue that, while these reformist tendencies (and legislative products) are not necessarily new, they are particularly dangerous due to their ability to leverage the myth of scientific objectivity, alongside the inherent difficulty of accountability and transparency when dealing with technological techniques of carceral control. Although ultimately unsuccessful, I will make clear that Senate Bill 10 demonstrates the clear threat that this kind of program represents to people incarcerated pretrial, and to those who care about them.

A Brief History of Senate Bill 10

Senate Bill 10 was first introduced in December of 2016, but underwent three rounds of reading and amendment before it was finally passed and approved by then-governor Jerry Brown in August of 2018. The bill was to eradicate the existing system of cash bail by creating a new agency, Pretrial Assessment Services (PAS). PAS, beginning in October of 2019, would facilitate a program that would assess defendants and allocate them a risk level—measuring their presumed likeliness of showing up to their arraignment and of committing further crimes prior to it—to determine whether or not to detain them.

The legislation was written by Senate Majority Leader Robert Hertzberg (D-CA), and sponsored by 12 others including Toni Atkins, Bob Wieckowski, and Scott Wiener. Most

Democrats in the California state Legislature, (67 of 81) supported Senate Bill 10, while only one (of 39) Republicans did.116 Although many reformist and abolitionist organisations originally supported Senate Bill 10, many revoked their endorsement after last-minute amendments abandoned the bill’s original progressive approach. While the stated intent of the legislation was to “safely reduce the number of people detained pretrial, while addressing racial and economic

116 “SB 10: Pretrial Release and Detention.” 45 disparities in the pretrial system,” the amended version merely intended to “permit preventive detention of pretrial defendants.”117 Further, not only were sections including those criticising unnecessary pretrial detention and the arbitrary nature of cash bail removed in favour of a more militant public safety angle, but others were added, including an amendment that would require for victims to be able to encourage that the defendant be detained.118 In a statement rescinding its support of Senate Bill 10, Essie Justice Group, an abolitionist organisation of women with incarcerated loved ones, argued that the bill “[threatened] to set a dangerous precedent for flawed pretrial justice reforms that can result in an increase in incarceration, systemic bias, and carceral authority nationwide” and, as such, “perpetuates the very harms it once sought to mitigate.”119

Senate Bill 10 and the PAS program exemplify many of the issues endemic to algorithmic incarceration, and risk assessment more broadly. In the words of Amber-Rose Howard,

Executive Director of Californians United for a Responsible Budget (CURB), “this will be totally devastating... these risk assessment tools are likely going to classify our people as a risk…

We’re all in a lot of danger.”120 In 2004, while she was still in high school, Amber-Rose was charged with a “serious” crime and detained pretrial. She spent two weeks in jail, before her family and community were able to raise the funds to pay her bail. As such, while awaiting trial,

117 S.B. 10, 2017-2018, Reg. Sess. §2 (Cal. 2016) (repealed 2020); S.B. 10, 2017-2018, Reg. Sess. §1 (Cal. 2016) (amended 2017) (repealed 2020). 118 These changes were informed by the recommendations of the Pretrial Detention Work Group, which was active from December of 2016 to December of 2017. The members of the working group were as follows: co-chairs Ventura Judge Brian John Back and San Diego Judge Lisa R. Rodriguez, as well as Napa Presiding Judge Mark Boessenecker, Alameda Judge Arturo Castro, Fresno Judge Hillary A. Chittick, retired Santa Barbara Judge George C. Eskin, Los Angeles Judge Scott M. Gordon, Assistant Presiding San Francisco Judge Teri L. Jackson, Merced Presiding Judge Brian L. McCabe, Los Angeles Judge Serena R. Murillo, Presiding Santa Clara Judge Rise Pichon, and Monterey Court Executive Officer Teresa A. Risi, “Chief Justice Appoints Working Group to Recommend Changes in Pretrial Detention”, California Courts Newsroom, accessed April 5, 2021, https://newsroom.courts.ca.gov/news/chief-justice-appoints-working-group-recommend-changes-pretrial-detention. 119 “Essie Justice Group Withdraws Support for SB 10”, Essie Justice Group, August 14, 2018, https://essiejusticegroup.org/2018/08/essie-justice-group-withdraws-support-for-sb-10/. 120 Sam Levin, “Imprisoned by algorithms: the dark side of California ending cash bail”, The Guardian. September 7, 2018. https://www.theguardian.com/us-news/2018/sep/07/imprisoned-by-algorithms-the-dark-side-of-california-ending-ca sh-bail. 46 she was able to rejoin her community, and finish her classes, graduate, and enroll in college.

Senate Bill 10 would make a story like Amber Rose’s impossible.

Senate Bill 10 defines risk as “the likelihood that a person will not appear in court as required or the likelihood that a person will commit a new crime if the person is released before adjudication of his or her current criminal offense.”121 As such, somebody designated “high risk” is categorised as “having a significant level of risk of failure to appear in court as required or risk to public safety due to the commission of a new criminal offense while released on the current criminal offense.”122 According to the legislation, those accused of misdemeanours (with some exceptions, including a “violent” felony conviction within the past five years or a charge of sexual or domestic violence) would be automatically released within 12 hours of booking. Those designated low risk (again, with some exceptions targeting those accused of “serious” or

“violent” crimes) would be released, but may be subject to electronic monitoring. Those designated medium risk would be detained, subject to judicial review on the basis that there are

“conditions of release that can reasonably assure public safety and return to court.”123 Those deemed to be high risk, however, would be held in preventive detention until arraignment.

In 2020, however, Senate Bill 10 was repealed. On November 3, 2020, California voters narrowly defeated Proposition 25, the Referendum on Law that Replaced Money Bail with

System Based on Public Safety and Flight Risk, thus retaining the preexisting system of cash or money bail for people awaiting arraignment.124 While the “no” vote repealed the contested legislation, a “yes” vote would have upheld it. The day after Senate Bill 10 was passed,

Proposition 25 was initiated as a veto referendum by Californians Against the Reckless Bail

121 S.B. 10, 2017-2018, Reg. Sess. (Cal. 2016) (repealed 2020). 122 S.B. 10, 2017-2018, Reg. Sess. (Cal. 2016) (repealed 2020). 123 “SB 10: Pretrial Release and Detention.” 124 7,232,380 (43.59%) voted for Proposition 25, while 9,358,226 (56.41) voted against, totalling 17,785,151 voters - a turnout of 80.67%, Secretary of state Alex Padilla, Complete statement of Vote, November 3. 2020, https://elections.cdn.sos.ca.gov/sov/2020-general/sov/complete-sov.pdf. 47

Scheme, a political action committee organised by the American Bail Coalition. Bail bond agents profit from a system of cash bail by paying the full amount in exchange for a non-refundable premium (usually around 10% of the total) from a defendant who is unable to pay the full amount on their own. The bail industry therefore is not only made profitable but can only exist at all because of the exorbitant amounts of money levied against poor people for their freedom. In

2014, the state Judicial Council found that bail bond agents in California collected more than

$308 million yearly. In the words of David Quintana, a California Bail Agents Association lobbyist, “You don’t eliminate an industry and expect those people to go down quietly.”125

However, many abolitionist and anti-carceral activists, organisations, and individuals also opposed Senate Bill 10 (and, subsequently, Proposition 25). The Committee Against Pretrial

Racism, a coalition of system-impacted individuals, families, and organisations insisted upon the reversal of Senate Bill 10, on the basis that it would “[automate] racial profiling”, allow for unchecked judicial discretion, and increase funding for policing and probation, further enabling their capacity to “harass Black, brown, and low income people.”126 The rest of my chapter is dedicated to understanding these arguments in an analytical capacity, first by looking at literature on the shortcomings of algorithmic risk assessment, and then by considering the normative implications of assigning risk to a person based on their traits isolated from context. Further, I will consider how resistance such as that organised and asserted by the Committee Against

Pretrial Racism is key to carceral contestation, and how such legislation aims to quash exactly this kind of community-led pushback.

125 Megan Cassidy, “Facing Extinction, California Bond Firms Decry Bill Ending Cash Bail, Launch Ballot Drive, San Francisco Chronicle, August 30, 2018. https://www.sfchronicle.com/crime/article/Facing-death-of-industry-California-bail-agents-13192267.php. 126 No On Prop 25, accessed January 19, 2021, https://noonprop25ca.com/. 48

The False Promise of Algorithmic Risk Assessment

The assumption tends to be that actuarial tools like risk assessment algorithms will be more “objective” or “neutral” than human actors. This assumption ignores the data that algorithms rely on records and reflect the decisions made by those very same fallible and biased individual actors, and that this bias is therefore embedded in the data itself. In the words of data scientist Cathy O’Neil, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”127 This is not to mention that bias is both deeply inscribed in and inherent to the institutions of policing and pretrial detention. According to legal scholar Andrew Ferguson, “Automated risk assessment systems are not sterile tools that operate in a vacuum; rather, they are dynamic, norm-laden interventions that must be deployed within complex webs of new and pre-existing policy requirements as well as legal institutions, rules, and associated social practices.”128 When deployed in the context of institutions that are inherently and deliberately racist, classist, misogynist, homophobic, and transphobic, it is entirely unsurprising that the “opinions” (as O’Neil puts it) that become embedded in the algorithms inform them as such.

Risk assessment utilises both dynamic and static factors normatively associated with crime and criminality to calculate a quantitative score that measures the presumed likeliness of an individual to reoffend (or escape) if they are released.129 As such, risk assessment necessarily relies on several fundamental assumptions about the origin, character, and nature of crime and criminality, despite the pretense that these decisions are and can be depoliticised and

127 Michelle Alexander, “The Newest Jim Crow”, The Washington Post, November 8, 2018, https://www.nytimes.com/2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html 128 Alicia Solow-Niederman, YooJung Choi, and Guy Van den Broeck, “The Institutional Life of Algorithmic Risk Assessment”. Berkeley Technology Law Journal 34, no. 3 (2019), 708. 129 Although the risk assessment tools purport to evaluate both likelineed to offend and failure to show up to trial, in reality the two are collapsed together, despite the discrepancies between factors that correspond to each outcome. However, I will be focusing on the former because it dominates the discourse informing, surrounding, and in response to risk assessment. 49 deracialised. For one, the assessment takes recidivism as a true measure of continued

“dangerousness,” rather than as a reflection of the uneven exercise of surveillance and policing on the basis of race and class in particular. Even though these “protected categories” cannot be factored directly into the algorithm, they can nonetheless be linked to risk. For example, indirect factors like home address and name can generate false predictive correlation, where the algorithm reflects policing patterns rather than the underlying crime patterns.130 Home address, of course, is not a neutral factor in a state with a long history of residential segregation by race and class.131 This is not to mention that prior criminal record tends to serve as a primary predictor of risk. As outlined in the introduction, there is a normative assumption of pathological Black criminality. Therefore, the use of prior criminal record as a predictor of risk can compound the false predictive correlation created by the racist nature and practice of policing and criminalisation. Regardless of criminal record, however, the scientific and normative association of Blackness and criminality makes it such that even Black defendants with no “criminal” history are often nonetheless rendered dangerous by the algorithm. As critical theorist Bernard Harcourt puts it, “risk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race. The combination of these two trends means that using risk assessment tools is going to significantly exacerbate the unacceptable racial disparities in our criminal legal system.”132 Algorithms cannot escape the stigmatisation of criminality as poor and Black; instead, they reinforce it.

Even on a mathematical basis alone, data scientists have proven algorithmic bias to be inevitable in predictive tools used for policing and pretrial detention. Four different studies

130 Andrew G. Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (New York: New York University Press, 2017), 132. 131 See Richard Rothstein, The Color of Law: A Forgotten History of how our Government Segregated America, (New York: Liveright Publishing Corporation), 2017. 132 Bernard E. Harcourt, “Risk as a Proxy for Race: The Dangers of Risk Assessment.” Federal Sentencing Reporter 27, no. 4 (2015), 237. 50 independently found that the Correctional Offender Management Profiling for Alternative

Sanctions (COMPAS) algorithm, which has been used New York, Wisconsin, California,

Florida's Broward County, and other jurisdictions to assess an individual’s likeliness to reoffend, is designed in such a way that it incorrectly rates a higher proportion of Black defendants as high risk. That is to say, “[B]lack defendants were twice as likely to be incorrectly labeled as higher risk than white defendants. Conversely, white defendants labeled low risk were far more likely to end up being charged with new offenses than [Black defendants] with comparably low COMPAS risk scores.”133 This disparity is, in fact, necessitated by predictive parity, a measure of fairness which is used as a starting point for creating predictive algorithms, and which requires that a formula must “generate equally accurate forecasts for all racial groups.”134 The algorithm cannot give Black and white defendants who are otherwise identical the same risk score because these wouldn’t match the uneven rearrest rates, which of course result from uneven (read: racialised) policing. Essentially, in order to achieve any form of accuracy (and, for this accuracy to be

“even” across racial groups), an algorithm must be racist, in order to match the racism inherent to policing and incarceration. Predictive parity, as such, according to computer scientist Nathan

Srebro, “actually corresponds to ‘optimal discrimination.’” The algorithm is therefore likely to cause a ratchet effect, where the disparities in predictive detention and in predictive policing compound, thus (further) hyperfocusing policing and incarceration of “high risk” populations.135

Beyond the false promise of providing race and class neutrality, algorithmic risk assessment fuels the false promise that reducing the use of pretrial bail is a tool of decarceration.

Even if an individual is lucky enough to be designated low or medium risk, their release

133 Julia Angwin and Jeff Larson, “Bias in Criminal Risk Scores Is Mathematically Inevitable, Researchers Say”, Propublica, December 30, 2016. https://www.propublica.org/article/bias-in-criminal-risk-scores-is-mathematically-inevitable-researchers-say 134 Ibid. 135 Harcourt, “Risk as a Proxy for Race”, 237. 51 may be contingent on their being subject to electronic monitoring.136 As such, they are still subject to carceral control. As outlined in the introduction, electronic monitoring functions not as an alternative to incarceration, but rather an alternative form of incarceration. Further, many who might have otherwise been released with no conditions or a (relatively) affordable rate of cash bail might end up being detained pretrial for failing to fulfil the expectations that come with electronic monitoring. Not only do ankle monitors pose extreme restrictions on an individual’s mobility and freedom, potentially preventing their ability to work, look after family and friends, and otherwise function as a member of their community, but they also come with exorbitant

“involuntary leasing fees,” which can often cost as much as several hundred dollars a month.

Failure to meet any one of the many conditions of release tends to result in incarceration pretrial.

In Michelle Alexander’s words, “one false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.”137 With this in mind, it is entirely unsurprising that the website

Senatebill10.com is owned and operated by the GEO group, a real estate investment trust which builds and operates correctional facilities including immigration detention centers, prisons, and residential treatment facilities. In advertising for services including ankle and alcohol monitoring and “pretrial support” on a website named for Senate Bill 10, it is clear that the GEO group has a stake in the expanding web of surveillance and control that the legislation was to impose. The section of the website dedicated to case studies promises that they will be “coming soon!” We ought to heed their warning.

136 Alexander, “The Newest Jim Crow.” 137 Ibid. 52

Inscribing Risk - The Normative Implications of Algorithmic Incarceration

Even if there were a “perfect” risk assessment algorithm (whatever that means), it would not be operating within a vacuum. Even the most well-intentioned and well-constructed reforms have been corrupted by carcerality’s punitive prerogative. As Solow-Niederman et. al. aptly state: “looking at issues such as fairness or bias in a tool in isolation elides vital bigger-picture considerations about the institutions and political systems within which tools are developed and deployed.”138 What do neutrality and efficiency even mean in the context of a state built on the premise of racialised punishment? More importantly, what does it mean to infuse a fundamentally racist institution with technological efficiency? As Murakawa reminds us, we cannot modernise our way out of the fundamental racism, homophobia, transphobia, and classism of the prison. In fact, Murakawa criticises the very myth of scientific/ technological objectivity on which reforms like algorithmic risk assessment programs rely, arguing that proposals for carceral modernisation “were so powerful precisely because of their seeming

“neutrality.””139 Predictive algorithms leverage the myth of scientific objectivity in order to secure systemic immunity.

On a basic level, risk assessment algorithms rely on the assumption that there is an objective, static and measurable level of risk that can be accurately determined.140 These algorithms essentialise—they take it as self-evident that risk is not only a factor of behavior, but an identity that is inherent to someone’s being. They make the fundamental and alarming assumption that risk is something that resides within a person, and that it is an identity that they permanently inhabit. What does it mean to reduce somebody to their algorithmically calculated likelihood to represent a danger to their community? How can a person embody risk, and what

138 Solow-Niederman et. al., “The Institutional Life of Algorithmic Risk Assessment”, 708. 139 Murakawa, The First Civil Right, 15. 140 Solow-Niederman et. al., “The Institutional Life of Algorithmic Risk Assessment”, 707 53 does it mean if they do?

Algorithms like that are COMPAS used to predict dangerousness via presumed likeliness to reoffend exemplify the ideas about criminality central to the violent/nonviolent binary. In allocating this assessment to a technology that is supposedly, but ostensibly not in reality, neutral, we intensify and make indelible the ascription of risk to a person. People come to embody risk, violence, and dangerousness, and the algorithm encodes this embodiment as scientific fact. Indeed, the algorithm, choosing between risk levels of low, medium, and high, cannot even conceive of the absence of risk in these already-criminalised bodies. The algorithm cannot compute the possibility that these people do not represent a risk to their communities - even less so that they might be an integral part of them. For Katherine McKittrick, these and similar kinds of algorithms cannot fathom Black wellbeing—it is not legible within their assigned system of knowledge. McKittrick further argues that the very biocentric methods and methodologies required for the function of predictive algorithms “can only produce dehumanising mathematical results.”141 The algorithm takes people with full lives, and reduces them down to their most basic of traits: age, name, location of arrest, and prior criminal record.

The input is a human, the output is risk. The algorithm doesn't predict risk, it creates it, and renders this designation indefeasible. The algorithm thus actualises any future that it envisions, as enabled by the value assigned to it as a scientific (and thus objective and unquestionable) tool.

Incredibly complex individuals and situations are reduced to data points that are assigned permanent meaning, devoid of context or narrative. The flattening and invisibilising of the experiences of those subject to the algorithms is dehumanising; because their traits are isolated and assigned ascriptive value, they are denied their story, and thus rendered unhuman. This is not to say that judicial discretion is the solution (if anything, one of the primary critiques of

141 Katherine McKittrick, Dear Science and Other Stories, Durham: Duke University Press, 2021, 111. 54

Senate Bill 10 is that it retains too much judicial discretion), but rather to identify exactly how disturbing algorithmic risk assessment is, especially when operating in the context of a carceral system designed to subjugate.

The insidiousness of algorithmic carcerality lies exactly in the fact that it purports to avoid the fallibility that discretion supposedly entails, all the while reinscribing, reinforcing, and magnifying the very same institutional assumptions of criminality that actually inform designations of risk and dangerousness. The algorithms are thus more difficult to challenge; without human actors to whom bias can be ascribed, the approach that informs algorithmic risk assessment cannot comprehend injustice. What reformers fail to see is that this designation, whether made by a judge or an algorithm, fundamentally relies on certain ideas of who needs or deserves to be incarcerated for the safety of the community. By encoding these ideas in a self-perpetuating algorithm, not only do we face increasing disparities on the basis of race and class, but also the potentially irreversible deepening of the cleft between deserving and undeserving, between citizen and criminal, and between violent and nonviolent.

Proposition 25: A Story of Carceral Contestation

Another important concern about algorithms like these is that they tend to be defined by a complete lack of transparency or accountability, and this may make disparities in pretrial detention even more difficult to challenge. Ferguson identifies multiple structural barriers to algorithmic transparency. Firstly, the algorithms often are not public data, as they may be kept confidential in order to protect the “competitive advantage” of whatever corporation made and is profiting off it.142 Secondly, even if they are public data, the algorithms tend to require an inaccessibly high level of knowledge and expertise to understand. It is highly unlikely that the

142 Ferguson, The Rise of Big Data Policing, 138. 55 average person would be able to make any sense of them—and, indeed, neither would the judges, police officers, and other actors making use of it. This issue is compounded by the fact that the algorithm may not even be static; if it involves machine learning, it may be constantly growing and changing, and thus impossible to analyse in any way that measures its behaviour other than in the specific moment in which the study is conducted. These concerns are clearly quite pronounced, given how striking the results yielded by interrogation of said algorithms have been thus far (as in the case of COMPAS, but also many others.) As Ferguson asks, “if police, courts, or citizens cannot understand the technology and if layers, journalists, and academics cannot interrogate the data, then how can anyone trust it?”143

Beyond the (often deliberate) difficulty of understanding them, these algorithms serve to obscure the carceral logics upon which risk assessment is predicated. Josh Scannell argues that an algorithm is “first and foremost an aesthetic machine.”144 It renders invisible the dehumanising work of risk assessment. By inserting carceral logics into an electronic infrastructure, predictive algorithms engage in a process of disappearance - of context from situations, of humanity from bodies, and, ultimately, of people from their communities.

Importantly, as outlined in the previous paragraph, it is hard to understand the mechanics of this disappearance, and therefore hard to challenge it on both a practical and theoretical level. How can you contest what has been rendered arcane?

Fortunately, Senate Bill 10 was repealed before it could be operationalised. But Senate

Bill 10 is not an exception to the rule, nor does it disprove it - difficulty of contestation does not equate to impossibility. Contestation is intrinsic to abolitionist work in our current setting, and it

143 Ibid., 136. 144 Josh Scannell, “What Can an Algorithm Do?”, DIS Magazine (blog), accessed April 6, 2021, http://dismagazine.com/discussion/72975/josh-scannell-what-can-an-algorithm-do/. 56 of course succeeds at times. In repealing Senate Bill 10, the (usually vastly different) interests of abolitionists and the bail industry briefly converged. And, even with the immense financial resources and lobbying power of the bail industry, the vote was still a close one.

Rather than provide openings for this kind of contestation, the use of risk assessment seeks to neutralise exactly this kind of political contest by subsuming it within the terms of technology. If beliefs about the neutrality of technologies like algorithmic risk assessment take hold in the public imagination, possibilities for contest will become more and more challenging and limited, contributing to a vicious cycle of regressive legislation and rhetoric. Senate Bill 10 and Proposition 25 also buried opportunities for community contestation in the literal sense by eliminating the possibility of community-funded bailouts. Of course, cash bail ought to be abolished, but because this legislation did not challenge the root issue of preventative detention

(nor of incarceration more broadly), it is highly problematic that it erased this avenue for freedom. Now if someone is detained pretrial, what are we supposed to do? Community bail funds serve an important role, not only as a concrete act to reduce the number of people in cages, but also as a form of mutual aid that builds political community.145 In sum, activist ability (and willingness) to challenge regressive policy and practice is crucial to this story. Their contributions cannot and should not be underestimated.

There is always the possibility that next time, or with a reform that doesn’t hurt the profits of a major subsection of carceral industry, the legislation might endure. As such, it is instrumental that California activists challenged the racist and classist nature of cash bail, pretrial detention, and risk assessment, not only practically, but rhetorically. They asserted that they and their communities don’t deserve punishment—and, more fundamentally, that punishment does

145 Reina Sultan, “Mutual Aid for Incarcerated People Is More Than Just Bail Funds’, Talk Poverty, August 6, 2020, https://talkpoverty.org/2020/08/06/mutual-aid-incarcerated-people-bail-funds/. 57 not equal safety.

Conclusion - Alternatives to Violence: Reimagining Public Safety through Abolitionist

Organising and Mutual Aid

What shall we build on the ashes of a nightmare?146

- Robin D. G. Kelley

In consideration of the examples of Sentencing and Bail Reform alongside historical and theoretical critiques of reformism, I demonstrated throughout the course of this thesis that the violent/nonviolent binary entrenches the carceral system by reinscribing its racialised logics. I considered this important precisely because it isn’t being talked about, and yet managed to sneak into our hearts and minds, tricking us into being led by fear.

In the face of the carceral conceptions of public safety that underpin the violent/nonviolent binary and the reforms that it provokes, we as abolitionists must ask: what public, and whose safety? Herskind asserts that:

The phrase [public safety] implies that to release someone from prison is to invite a new risk into an otherwise-fine social landscape. But what about the risk and precarity people live in every day? The risk of living paycheck to paycheck, of not being able to afford an unplanned medical expense? What about the risk of violence and sexual assault that people in prison face every day? Are you as outraged about these risks as you are about the idea of someone leaving a cage?147

In sum, he asks: is the community not made unsafe by the violence of the state? As

Herskind’s examples make clear, the “safety” of which the state speaks necessitates violence.

The public with which it is concerned is defined on the basis of exclusion. The state utilises the violence of prisons, jails, and policing in order to control certain communities and populations,

146 Robin D. G. Kelley, Freedom Dreams: The Black Radical Imagination (Boston: Beacon Press, 2002), 196. 147 Micah Herskind, “Three Reasons Advocates Must Move Beyond Demanding Release for ‘Nonviolent Offenders.’” 58 using racialised notions of interpersonal violence and disorder as justification. As I argue in

Chapter I, the basic premise of the violent/nonviolent binary relies on an implicit acceptance and even an endorsement of this state monopoly on violence. However, the state cannot and will not exercise punishment legitimately, because it has always utilised (and sought to legitimise) racialised punishment as a means of maintaining hierarchies of power. Even as liberal reforms desperately try to erase what they see as flaws in the system, they only succeed in legitimising these very abuses. Reformism, by its very nature, is unable to successfully challenge the punitive function of the carceral state, and tremendous harm can be imposed when it is uncritically assumed that it can.

In this conclusion, I explore how abolitionists are re-imagining public safety by building functional alternatives to the prison and to the harm it causes. This is not to say that abolitionists are naïve enough to envision a world without harm, but rather that they hope to deal with harm and violence in ways that are not punitive. To conclude my thesis, I begin to answer the question of how we, as abolitionists, might reconceptualise ideas of community safety in order to meaningfully prioritise safety, wellbeing, and justice for all. I do this by considering various abolitionists efforts, including participatory defense campaigns and mutual aid efforts. I argue that such efforts allow us to move beyond reformist constructions of our imagination by undermining carceral logics, and instead choosing to center abolitionist values of refusal, collectivity, and care.

Many abolitionist organisations and individuals have been doing the work of starting to answer these questions—indeed, much of the opposition to the legislation analysed in my thesis could be defined as such. In pushing back against policy and practice such as that prescribed by

California Senate Bill 10 and the 2015 Sentencing Reform and Corrections Act, for example, 59 abolitionist organisers were able to subvert the carceral logics that underpin the legislation.

Specifically, activists in California who fought and then sought to repeal Senate Bill 10 asserted that they did not represent or embody risk, and that policing and incarceration did not amount to safety, and opponents of the 2015 federal legislation asserted that everyone deserved to be free, both therefore engaging in a rejection not only of the legislation itself, but also of the carceral logics that underlie it. When considering the carceral system as the physical sites of punishment

(i.e. prisons and jails), as well as the institutions and discourses that make them possible, abolition represents an elimination of the prison not just as a building, but also as a set of logics.

Refusing and undermining these carceral logics, then, has enormous power and utility.

Although the non-reformist reforms that abolitionists engage in may, at times, resemble the reformist reforms pursued by liberals, the rhetoric and strategy of their approaches fundamentally differ. For example, it may at first seem as though participatory defense campaigns are doing the same work as innocence-based exoneration organisations (as discussed in Chapter I), in that they often also work to free incarcerated individuals by overturning their convictions or commuting their sentences. However, participatory defense, defined as a “a community organizing model for people facing charges, their families, and their communities to impact the outcome of cases and transform the landscape of power in the court system,” encompasses so much more than the legal battle that innocence work focuses around.148 While innocence-based campaigns rely on the innocence (or relative innocence) of the individual at hand, participatory defense campaigns reject ideas of innocence and deservingness and instead utilise one person’s experience of injustice to illustrate the injustice faced by all incarcerated people, and advocate for their freedom alongside the freedom of all incarcerated people. In

148 “About PARTICIPATORY DEFENSE”, Participatory Defense, accessed May 3, 2021, https://www.participatorydefense.org/about 60

Mariame Kaba’s words, writing on the fundamental importance and historic legacy of participatory defense campaigns to the abolitionist movement, “individual cases should be framed as emblematic of the conditions faced by thousands or millions who should also be free… The violent/nonviolent binary is an insidious mirage. We must fight for everyone’s freedom.”149 For example, in pursuing the freedom of the New Jersey 4, Marissa Alexander,

CeCe McDonald, Chelsea Manning, and Bresha Meadows, among countless others, abolitionists have shone light on the cruelties of state violence and its gendered and racialised effects. More than just securing freedom for select individuals, participatory defense serves as a form of popular education that is essential for growing and strengthening the movement. As Spade so eloquently expresses, “acknowledging the necessity of immediate care and defense work alongside work to get at the root causes of harmful conditions and work to build alternative structures allows for a complex, nuanced, and developing imagination of coordinated short- and long-term strategies.”150

“Solidarity, Not Charity”: Mutual Aid as Abolitionist Organising

Similarly, mutual aid serves as an important form of abolitionist solidarity-building.

Mutual aid is “a form of political participation in which people take responsibility for caring for one another and changing political conditions, not just through symbolic acts or putting pressure on their representatives in government, but by actually building new social relations that are more survivable.”151 Examples of mutual aid projects include jail support, food distribution, disaster relief, and other kinds of support funds. Mutual aid highlights the failure of existing

149 Mariame Kaba, “Free Us All: Participatory Defense Campaigns as Abolitionist Organising”, The New Inquiry. May 8, 2017, https://thenewinquiry.com/free-us-all/. 150 Spade, “Solidarity, Not Charity”, 135. 151 “What is Mutual Aid?”, Big Door Brigade, accessed April 26, 2021, https://bigdoorbrigade.com/what-is-mutual-aid/. 61 systems to take care of us—in this case, the inability of the carceral system to keep us safe.

Where reformism sows division, differentiating between the deserving and undeserving, mutual aid brings us together by demonstrating not only that we are all worthy of care and support, but also that we can provide that care and support to each other.152 Even more so than other forms of abolitionist organising, perhaps, mutual aid represents not just an exposure of the fundamental inadequacy of the carceral system (and of reformism in addressing it), but also presents a genuine alternative to the (carceral) state.

A brilliant example of an abolitionist expression of mutual aid is Black Mama’s Bail Out, an effort to bail out as many Black mothers and caregivers as possible from jails and immigration detention centers across the country, “so they can spend Mother’s Day with their families where they belong.”153 Black Mama’s Bail Out is coordinated by the National Bail Out Collective, a

“Black-led and Black-centered collective of abolitionist organisers, lawyers, and activists building a community based movement to support our folks and end systems of pretrial detention and ultimately mass incarceration.”154 This endeavour seeks pretrial freedom on grounds that

(unlike Senate Bill 10) center Black life and wellbeing, reassert the importance of incarcerated people to their communities, and assign value to Black caregiving, be it traditional or untraditional. In assigning importance to devalued practices of caregiving, this form of mutual aid exemplifies the (abolitionist) practice of care, which Saidiya Hartman argues is the antidote to violence.155 Abolitionist care specifically, then, might provide an antidote to the violence of the state.

These examples of abolitionist alternatives are reflective—exemplary, even—of the core

152 Dean Spade, Mutual Aid: Building Solidarity During this Crisis (and the Next) (London and New York: Verso, 2020.) 153 “About”, National Bail Out, accessed April, 18, 2021, https://www.nationalbailout.org/. 154 Ibid. 155 See In the Wake: A Salon in Honor of Christina Sharpe, recorded February 2, 2017, at Barnard College, http://bcrw.barnard.edu/videos/in-the-wake-a-salon-in-honor-of-christina-sharpe/. 62 tenets of abolitionist organising, but (as the diversity of examples may indicate), there is no singular or definitive way to engage in abolitionist work. As Gilmore reminds us, “abolition requires that we change one thing: everything.”156 That said, some abolitionist organisers, scholars, and writers have created materials that can help us to distinguish between reformist and non reformist efforts.157 This can be particularly useful when working in legislative and policy spaces, which can be especially prone to compromise and cooptation. Spade, in evaluating abolitionist strategies, utilises four questions: “Does it provide material relief? Does it leave out an especially marginalized part of the affected group (e.g., people with criminal records, people without immigration status)? Does it legitimize or expand a system we are trying to dismantle?

Does it mobilize people, especially those most directly impacted, for ongoing struggle?”158

Refusing to leave people behind (especially when it might seem tempting to) represents an explicit effort to combat and dismantle discourses such as the violent/nonviolent binary that seek to divide us.

In considering these questions, I come back once again to the case studies analysed in this thesis. Let’s take California Senate Bill 10 as an example. The legislation excluded a large subsection of people under consideration for release pretrial, and in doing so further marginalised those accused of violent crimes, validating that they were deserving of punishment through incarceration even before they had been formally convicted. The algorithmic classification of risk using class- and race-linked characteristics fails to provide material relief to the majority of those accused, or to mobilise anyone in its purported goal of reducing disparities in pretrial

156 See Ruth Wilson Gilmore, Change Everything: Racial Capitalism and the Case for Abolition, (Chicago: Haymarket Books, 2021.) 157 See “Reformist reforms vs. abolitionist steps in policing”, Critical Resistance, accessed April 26, 2021, http://criticalresistance.org/wp-content/uploads/2020/08/CR_NoCops_reform_vs_abolition_REV2020.pdf.; Morgan Bassichis, Alexander Lee, and Dean Spade, “Building An Abolitionist Trans and Queer Movement with Everything We’ve Got”, in Captive Genders: Trans Embodiment and the Prison Industrial Complex, ed. Eric Stanley and Nat Smith (Chico: AK Press, 2015), 15-27. 158 Spade, “Solidarity, Not Charity”, 133. 63 detention (except, perhaps, in prompting abolitionist opposition in response.) In response, I can not help but ask, what if California’s legislation prioritised the safety and wellbeing of the people? What if we considered not what risk defendants posed to their communities, but how they benefited them? We might recognise that instead of risk or danger, each and every individual represents a vitally important part of the communities they are a part of, and deserve to remain a part of them even when they do not tidily fit within exclusionary conceptions of innocence, nonviolence, and community.

When harmful reformist rhetoric like the violent/nonviolent binary seeks to divide us, we must come together, and work to build the world we know each other to deserve. We can, we should, and we must refuse to differentiate between violent and nonviolent, and assert instead that we all deserve to be free. The violent/nonviolent binary will not be our saviour. The people who died in prisons and jails this year, made unable to protect themselves by the cruelty of the state, would surely agree. 64

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