Injustice and the criminal law: defending radical solutions
Creators: name: Lyons, Lauren
Publisher: name: No Publisher Supplied
Year: 2024

description: Our present criminal legal institutions are deeply flawed and require radical change. This dissertation presents, evaluates, and defends a series of proposals about how we should restructure our criminal-legal institutional landscape. Each chapter addresses a different proposal, including calls to (i) abolish incarceration, (ii) reallocate institutional responsibilities and powers from police to other institutions, and (iii) institute non-carceral, transformative justice strategies in response to gender-based and sexual violence. These proposals have precipitated divisive and at times murky debates. One goal of the project is to add philosophical clarity to these debates and to help refine the most normatively attractive versions of these proposals. A second goal is to offer arguments in favor of them. Proposals in this vicinity have too often been dismissed and not given due attention in ethics, political philosophy, and philosophy of criminal law. In “Defending Incarceration Abolition,” I analyze and ultimately defend the abolitionist claims (1) that jails and prisons are flawed beyond repair and that we should gradually do away with them (the abolitionist negative proposal), and (2) that we should install an alternative set of institutions and measures, including a more robust system of social support to prevent crime upstream and transformative justice systems to respond to it without incarceration when it inevitably occurs (the abolitionist positive proposal) (Davis 2011; Mathiesen 1974; McLeod 2015). I begin by providing a detailed account of this abolitionist institutional design proposal. I then canvas a series of objections to the practice of punishment by incarceration, ranging from skepticism about moral responsibility to the concern that incarceration perpetuates endemic injustice. I show how we can use these objections to ground the conclusion that we should abolish incarceration, discussing how, among other issues, abolitionists must respond to the “appeal to necessity,” or the charge that though objectionable, incarceration may be justified if alternatives are worse still (Boonin 2008). In responding to the appeal to necessity and a variety of other objections, the paper offers a novel defense of abolitionism in light of criticisms, especially that advanced in Tommie Shelby’s The Idea of Prison Abolition (Shelby 2022). I focus on a second radical proposal in “Why We Should Unbundle the Police,” arguing that we ought to reallocate powers and resources away from police towards other public institutions that are not tied to the criminal-legal system— what I call the unbundling proposal (Kaba and Ritchie 2022; Vitale 2021). Unbundling requires reimagining the present distribution of responsibilities among institutions, and in the chapter, I draw on and engage with several extant reform proposals. I first present one version of the unbundling proposal, distinguishing the various components of policing that ought to be reallocated to other institutions. Some of these components include traffic patrol, intervening in non-serious interpersonal conflicts, and responding to people dealing with addiction, homelessness, and mental health crises. I then offer three arguments in support of the proposal which reflect rationales that emerge in policing-critical social movements. The first, the argument from minimally violent capacities, claims that we should redistribute police responsibilities because public institutions ought to have violent capacities only as a last resort. The expertise argument claims that we should assign more narrow roles to police because requiring police to respond to a motley array of social problems is epistemically over-demanding. The third argument, the argument from injustice, focuses on non-ideal considerations about the effects of policing in inegalitarian societies. These non-ideal considerations include the fact that policing is disproportionately burdensome to marginalized people and racial minorities (especially Black people in the case of the United States). Drawing on broad principles of what we should do when institutions are infected with injustice, I argue that significant structural changes, like unbundling, offer an appealing ameliorative solution.The final chapter is entitled “Beyond Carceral Feminism.” Over the past several decades, feminist movement organizing has come up against a dilemma in determining appropriate responses to gender-based and sexual violence. On one hand, taking gendered violence seriously and working to eradicate it are central and urgent feminist projects. On the other hand, as many critics have noted, employing the criminal law towards these feminist ends not only fails to achieve them, but also expands the web of mass incarceration and perpetuates structural injustice (Davis et al. 2022; Goodmark 2020; Gruber 2020; Richie 2012). In this chapter, I clarify what this tension amounts to and argue for the anti-carceral, abolitionist feminist ideas that incarceration is an inappropriate response to gender-based and sexual violence and that we should look towards transformative justice and community accountability (TJCA) solutions instead. My negative argument appeals to how carceral responses to gendered violence undercut the functions at which they aim in the context of racialized mass incarceration. The positive argument for transformative justice solutions claims that they foster a more robust form of corrective justice because they enable morally valuable forms of interpersonal engagement, empower victim survivors, and effectively express condemnation of wrongful behavior. I conclude by responding to some of the objections raised against transformative justice and community accountability approaches, particularly in the context of responses to gender-based and sexual violence. Together, the three chapters explore largely uncharted territory at the intersection of philosophy of criminal law, political philosophy, and social movement theory. Throughout, I engage with analytic philosophers in moral, legal, and political philosophy, such as Tommie Shelby, John Rawls, Anthony Duff, Charles Mills, and David Boonin, but I also draw on and engage with activism-oriented scholars including Angela J. Davis, Mariame Kaba, Beth Richie, Dorothy Roberts, and Alex Vitale.