REDISTRIBUTING JUSTICE - Columbia Law Review

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can be used to redistribute power and privilege. We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination. It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment. Instead, we argue that they reflect a vision of criminal law as a tool of redistribution—a vehicle for redistributing power from privileged defendants to marginalized victims.

Ultimately, we critique this redistributive model of criminal law. We argue that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine. Even if criminal law somehow could advance some of the redistributive ends that proponents suggest, our criminal system would remain objectionable. The oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane, even if the identity of the defendants or the politics associated with the institutions shifted.

The full text of this Essay can be found by clicking the PDF link to the left.

*Professor of Law, Washington University in St. Louis.
**Professor of Law, Benjamin N. Cardozo School of Law. For helpful comments and conversations, the authors would like to thank Aziza Ahmed, Zohra Ahmed, Jenny Braun, Stephanie Holmes Didwania, Sharon Dolovich, Taleed El-Sabawi, Chad Flanders, Thomas Frampton, Trevor Gardner, Aya Gruber, Jamelia Morgan, Sunita Patel, Daniel Richman, Brendan Roediger, Jocelyn Simonson, Ji Seon Song, Anders Walker, and Ahmed White. This Essay also benefited from presentations at the Cardozo Junior Faculty Works-in- Progress Series, the St. Louis University School of Law Faculty Colloquium, the UCLA School of Law Faculty Colloquium, and the Decarceration Law Professors Work in Progress Workshop. Thanks to Leandra Ipina for her research assistance.

Introduction

We are living in a moment of reckoning for U.S. criminal policy. In recent years, as police brutality has gone viral and the drug war has been exposed as ineffective and racist, many progressive politicians, 1 See, e.g., Nathalie Baptiste, Democrats Say They Want to End Mass Incarceration. There’s No Way They’ll Do What’s Needed to Get There., Mother Jones (Sept. 20, 2019), https://www.motherjones.com/crime-justice/2019/09/democrats-say-they-want-to-end-mass-incarceration-why-dont-they-address-the-real-solution [https://perma.cc/SF3L-CABP] (observing that “[s]hrinking the enormous US prison population has become a standard promise from Democrats running for president” but noting that “[i]f Democratic candidates actually want to end mass incarceration, they’ll have to talk about reforms that are for everyone behind bars, not just the low-level drug offenders”). academics, 2 See, e.g., Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration 6–9 (2020) [hereinafter Gruber, The Feminist War on Crime] (critiquing carceral feminism from an abolitionist perspective); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 408 (2018) (“[T]he most imaginative voices within contemporary racial justice movements . . . [are] focused on shifting power into Black and other marginalized communities; shrinking the space of governance now reserved for policing, surveillance, and mass incarceration; and fundamentally transforming the relationship among state, market, and society.” (footnote omitted)); Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 Mich. L. Rev. 259, 293 (2018) [hereinafter Levin, The Consensus Myth] (describing widespread critiques of the criminal system); Kate Levine, Police Prosecutions and Punitive Instincts, 98 Wash. U. L. Rev. 997, 1003 (2021) [hereinafter Levine, Police Prosecutions] (critiquing carceral solutions to policing problems); Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1161–63 (2015) (envisioning a “prison abolitionist framework” that would “substitut[e] a constellation of other regulatory and social projects for criminal law enforcement” and imagining abolition both as “decarceration and substitutive social—not penal—regulation”); Dorothy E. Roberts, The Supreme Court, 2018 Term—Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 8–11 (2019) [hereinafter Roberts, Abolition Constitutionalism] (arguing that “the only way to transform our society from a slavery-based one to a free one is to abolish the prison industrial complex” and arguing for a new abolition constitutionalism based on engaging the abolitionist history of the Constitution and the modern-day prison abolition movement); Jocelyn Simonson, Police Reform through a Power Lens, 130 Yale L.J. 778, 787–91 (2021) [hereinafter Simonson, Power Lens] (using a power lens to describe movement groups’ push to change police governance and arguing that “power shifting is important and necessary to the larger abolitionist project”); India Thusi, Policing Is Not a Good, 110 Geo. L.J. Online 226, 233–34, 249–50 (2022), https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2022/07/Thusi-Policing-Is-Not-a-Good.pdf [https://perma.cc/D4K6-PNGC] (calling for “a macro-level evaluation of policing that centers the history of policing and its continued role in racial subordination” and arguing that such an assessment would weigh in favor of defunding and abolishing the police); Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1202 (2022) (book review) (exploring how abolitionist theories and methodologies might enrich and transform traditional legal analysis). The recent literature on abolition has begun to draw criticism from prominent legal scholars. See, e.g., Rachel E. Barkow, Promise or Peril?: The Political Path of Prison Abolition in America, 58 Wake Forest L. Rev. 245, 252–55 (2023) (cautioning that calls for prison abolition may alienate politicians and the public and impede reforms to the criminal system); Daniel Richman, The (Immediate) Future of Prosecution, 50 Fordham Urb. L.J. 1139, 1143–44 (2023) (“I think talk of ‘abolition’ and ‘defunding’ horribly misplaced—since constitutional policing can be extremely expensive, and adjudicative fairness and reliability only enhanced by better funding of defense lawyers and prosecutors.”). organizations, 3 Marty Johnson, ACLU Pressing Biden to Stick to Promise of Decarceration With New Ad Buy, The Hill (Jan. 28, 2021), https://thehill.com/homenews/news/536238-aclu-pressing-biden-to-stick-to-promise-of-decarceration-with-new-ad-buy [https://perma.cc/H7UN-DR4G] (describing the ACLU’s campaign urging President Joseph Biden to grant mass clemency to people who fit certain criteria). organizers, 4 See Amna A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 Stan. L. Rev. 821, 824 (2021) (“The Ferguson and Baltimore rebellions, combined with organizing by the Movement for Black Lives (M4BL) and a growing constellation of abolitionist organizations, have made anti-Blackness, white supremacy, and police violence core issues on the liberal-to-left spectrum and redefined the terms of policy debate.”); Mariame Kaba, Opinion, Yes, We Mean Literally Abolish the Police, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html (on file with the Columbia Law Review) (calling for police forces and their budgets to be immediately halved to reduce the number of police interactions and for abolition of the police and redirection of police resources towards other social programs). and voters 5 See, e.g., Sarah Figgatt, Progressive Criminal Justice Ballot Initiatives Won Big in the 2020 Election, Ctr. for Am. Progress (Nov. 19, 2020), https://www.americanprogress.org/article/progressive-criminal-justice-ballot-initiatives-won-big-2020-election [https://perma.cc/WL2T-WST8] (noting numerous decarceral ballot initiatives that passed in 2020). have aligned themselves with moves toward decarceration or police and prison abolition. Increasingly, many progressive commentators criticize mass incarceration and treat criminal legal institutions as objectionable responses to social problems. 6 See, e.g., Aya Gruber, The Critique of Carceral Feminism, 34 Yale J.L. & Feminism 55, 59 (2023) [hereinafter Gruber, The Critique of Carceral Feminism] (“For all their differences, the radical institutional and moderate mass-incarceration critiques both frequently feature a cast of conservative villains who progressives would abhor even if mass incarceration never existed: corporate exploiters, unscrupulous prosecutors, and moral majoritarians.”). Nevertheless, these anticarceral commitments often have their limits. Despite the prevalence of increasingly radical rhetoric on the left, many progressives continue to make exceptions and favor criminal solutions when presented with particularly sympathetic victims or particularly unsympathetic defendants. 7 See infra notes 23–27 and accompanying text.

In this Essay, we aim to describe and explain why many on the political left (broadly conceived) who generally favor decarceration selectively turn to the carceral state to solve social problems. 8 Of course, it’s tricky to define “the left,” just as it is to define “progressives,” “liberals,” or any other ideological camp or label. We acknowledge some imprecision and slippage in our usage throughout—these definitional questions are very important, but they also require more space than this Essay affords. Throughout, our use of labeling relies on our sense of how commentators and organizations are perceived or how they perceive themselves. This kind of selective reliance on the carceral system is widespread in today’s progressive movements, 9 See, e.g., Gruber, The Feminist War on Crime, supra note 2, at 169 (arguing that young feminists will “carry a mattress [symbolizing a desire for a male sexual assaulter to be incarcerated] one day and raise a fist at a Black Lives Matter protest the next”). and it has not been addressed adequately by the current scholarly literature. We believe that confronting this reliance on criminal law is essential to any movement that aims to take widespread decarceration or abolition of the carceral state seriously. Critics must grapple with what social movements and commentators on the left continue to find promising about criminal law.

Our claim is that critical accounts tend to miss the possible explanatory power of distribution (or redistribution) as a way of understanding why otherwise-decarceral progressive activists might favor criminalization in certain situations. 10 In this respect, we hope to contribute to a larger conversation about the role of distributive arguments in legal thought and practice. See Paulo Barrozo, Critical Legal Thought: The Case for a Jurisprudence of Distribution, 92 U. Colo. L. Rev. 1043, 1052 (2021) (noting that “a commitment to equality commits critical legal theory to a comprehensive and systematic jurisprudence of distribution”). Viewed in this light, criminal legal institutions might be justified as vehicles for redistributing power and resources to marginalized victims and away from defendants based on wealth, race, gender, sexuality, or other privileged societal positions.

A redistributive justification for criminalization or punishment suggests that criminal law is desirable because it will create—or strengthen—the right social arrangement. 11 See Deborah Tuerkheimer, Criminal Justice and the Mattering of Lives, 116 Mich. L. Rev. 1145, 1161 (2018) (book review) (articulating an “antisubordination theory of criminal justice”); cf. Hadar Aviram, Progressive Punitivism: Notes on the Use of Punitive Social Control to Advance Social Justice Ends, 68 Buff. L. Rev. 199, 225 (2020) (comparing contemporary “progressive punitivism” to Maoist approaches to criminal law, which considers “the locus of the perpetrator in the class structure” in deciding whether punishment is warranted). For progressives, that means criminal law would be a social good when it benefits marginalized defendants and harms powerful defendants or defendants advancing regressive ends. 12 See infra Part I. Criminal law and punishment might be worth supporting if they distribute the right way. 13 See infra Part I.

To be clear, we aren’t arguing that this is a good justification or that we would support criminal punishment because of its redistributive potential. We wouldn’t, and we don’t. 14 See generally infra Part III. Rather, our suggestion is that understanding pro-criminalization arguments as reflecting a redistri-butionist logic should help us make sense of apparent contradictions in academic and public discourse.

We are not the first to suggest that progressives have a role in the making and maintenance of the carceral state. Indeed, several authors in the past decade have addressed this as a historical phenomenon. 15 See generally James Forman, Jr., Locking Up Our Own: Crime and Punishment in Black America (2017) (noting the contribution of the Black community to the War on Crime); Gruber, The Feminist War on Crime, supra note 2 (describing carceral feminism throughout U.S. history); Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (2016) (observing that President Lyndon B. Johnson’s war on poverty provided language and ideology for the war on crime); Naomi Murakawa, The First Civil Right: How Liberals Built Prison America (2014) (describing liberals’ contribution to the explosion of the penal system in the late twentieth century). Nor is this the first piece of scholarship to highlight critically the individual carceral issues—police violence, economic crimes, hate crimes, and gender-subordinating crimes—we describe in this Essay. 16 On police brutality, see, e.g., Derecka Purnell, Becoming Abolitionists: Police, Protests, and the Pursuit of Freedom 269 (2021) (discussing some progressives’ desire to see brutal police incarcerated); Aviram, supra note 11, at 208–09 (identifying trends of “progressive punitivism” in discussions surrounding police violence); Kate Levine, How We Prosecute the Police, 104 Geo. L.J. 745, 748–50 (2016) [hereinafter Levine, How We Prosecute the Police] (arguing that the preferential precharge procedures that prosecutors employ when dealing with police suspects, such as precharge investigations and full evidentiary presentations before a grand jury, should be applied to all suspects); Levine, Police Prosecutions, supra note 2, at 1003 (warning that “a project to increase the harshness of the criminal legal system against police officers will, far from its proponents’ goals, legitimize and increase the footprint of our current criminal legal system”); Kate Levine, Police Suspects, 116 Colum. L. Rev. 1197, 1201–05 (2016) [hereinafter Levine, Police Suspects] (arguing that the preferential criminal procedure rights that police suspects have should be extended to all people arrested for crimes).
On economic crime, see, e.g., Pedro Gerson, Less is More?: Accountability for White-Collar Offenses Through an Abolitionist Framework, 2 Stetson Bus. L. Rev. 144, 147 (2023) (arguing that abolitionist responses to white collar crimes “may be better able to guarantee accountability than continuing to use the carceral model”); Benjamin Levin, Mens Rea Reform and Its Discontents, 109 J. Crim. L. & Criminology 491, 551–52 (2019) [hereinafter Levin, Mens Rea Reform] (identifying white-collar crime as an area of “carceral exceptionalism” in mens rea reform); Benjamin Levin, Wage Theft Criminalization, 54 U.C. Davis L. Rev. 1429, 1435–36 (2021) [Levin, Wage Theft] (noting the tension inherent in calls to criminalize wage theft to protect marginalized workers despite the fact that “in calling for criminalization and criminal prosecution, many commentators have embraced the same actors and institutions that have decimated poor communities and used criminal law to construct a hyper-policed, hyper-incarcerated population”).
On hate crimes, see, e.g., Aviram, supra note 11, at 209–11 (discussing reactions of “progressive punitivism” in response to hate crimes); Kate Levine, The Progressive Love Affair with the Carceral State, 120 Mich. L. Rev. 1225, 1238–40 (2022) (book review) [hereinafter Levine, Progressive Love Affair] (critiquing the movement to criminalize hate crimes and warning about the likely “actual distributional effect of more criminalization”); Shirin Sinnar, Hate Crimes, Terrorism, and the Framing of White Supremacist Violence, 110 Calif. L. Rev. 489, 509–15 (2022) [hereinafter Sinnar, Hate Crimes] (exploring the limits of the hate crimes frame).
On gender-subordinating crime, see, e.g., Aviram, supra note 11, at 205–07 (noting “progressive punitivism” in the areas of sexual harassment and assault); Aya Gruber, Sex Exceptionalism in Criminal Law, 75 Stan. L. Rev. 755, 824–25 (2023) (critiquing carceral feminism); I. India Thusi, Feminist Scripts for Punishment, 134 Harv. L. Rev. 2449, 2451 (2021) (same). What we hope to contribute is a theory for why so many progressives still turn to criminal law despite all of the evidence that we as a society have overrelied on police and prisons for far too long. Redistribution certainly isn’t the only explanation. Indeed, many scholars and activists appear to justify their selective preference for criminal law in terms of retribution, expressivism, or deterrence. 17 See, e.g., Tuerkheimer, supra note 11, at 1160 (“An unpunished hate crime expresses a devaluation of the victim—not only by the perpetrator, but also by the state. If the successful prosecution of a hate crime is viewed as validating the victim’s life and identity, a perceived criminal justice failure accomplishes the exact opposite.” (footnotes omitted)); infra note 29 and accompanying text. But redistribution appears to have particular purchase in progressive circles as a vocabulary for justifying punitive politics. For scholars and activists committed to dismantling the carceral state, then, it is essential to grapple with these difficult areas and to recognize what does (or doesn’t) make them difficult.

We do not seek to suggest how progressives might solve social problems like systemic racism, gender subordination, or income inequality through noncarceral means. It remains to be seen whether the rich and increasing literature describing alternatives to the carceral state can ameliorate the pain and fury generated by crimes against marginalized people. 18 See, e.g., Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road To Repair 12–14 (2019) (describing the author’s work at Common Justice, “an organization that seeks to address violence without relying on incarceration,” and explaining that alternatives to incarceration must be “survivor-centered, accountability-based, safety-driven, and racially equitable” and will require “a fundamental realignment in our values and practice”); Monica C. Bell, Katherine Beckett & Forrest Stuart, Investing in Alternatives: Three Logics of Criminal System Replacement, 11 U.C. Irvine L. Rev. 1291, 1301–02, 1309–10, 1318–23 (2021) (examining how defunding the police and reinvesting in social welfare, safety production, and racial reparations can provide an alternative to the carceral state that considers its harmful effects on racially marginalized communities); Allegra M. McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1622 (2019) [hereinafter McLeod, Envisioning Abolition Democracy] (noting how abolitionist projects “call for justice in the aftermath of police shootings in connection with a movement to divest from the criminal arm of the state and invest in other social projects, including reparations and democratic institutions”). Instead, our project here is to surface and theorize the continued progressive commitment to criminal law, and to suggest that it should be recognized as a significant barrier to decarceral projects. 19 See infra Part I. If progressives and decarcerationists are to be allies, they must see the fault lines in their alliance.

Further, we argue that the criminal system can’t do the redistributive work that some commentators imagine. Not only do we doubt that incarcerating brutal police officers will stop police brutality, but we also doubt that it will empower communities harmed by the police. Similarly, we doubt that incarcerating employers who steal their workers’ wages will redistribute wealth or remedy economic inequality. 20 See infra Part III. Indeed, these carceral responses often serve to legitimate structural inequality by appearing to redistribute justice without doing anything about the larger systemic inequities that remain. 21 See infra section III.B.3. Perhaps even more troubling, these redistributive attempts actually may lead to more policing, prosecution, and punishment of the same marginalized communities that progressives hope to help. 22 See infra section III.A.

Our argument unfolds in three Parts. In Part I, we trace the limits of anticarceral arguments and highlight the ways in which opposition to mass incarceration and overcriminalization often is heavily circumscribed—exceptions and carveouts abound. We describe a unifying theme in many of these progressive criminalization projects—a focus on redistribution. We examine competing conceptions of what redistribution means in this context (for example, shifting power, reallocating resources, and signaling social inclusion and valuation). In Part II, we offer a series of case studies to illustrate how progressive and left academics, activists, and lawmakers have justified punitive policies on redistributive grounds. Specifically, we examine the cases of police violence, economic crimes, hate crimes, and crimes of gender subordination. Finally in Part III, we step back and offer a critical take on redistributive arguments for criminal law. We argue that many redistributive arguments for criminal law rest on speculative empirical claims that lack real-world support. Further, we contend that the criminal system can’t redistribute in the egalitarian ways that some commentators imagine—criminal legal institutions are fundamentally regressive and tied to subordination. And, even if they somehow could advance some of the redistributive ends that their proponents suggest, our carceral system would remain objectionable. That is, the oppressive and inhumane aspects of the carceral state still would be oppressive and inhumane, even if the identity of the defendants or the politics associated with the institutions shifted.