Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then

This paper makes three contributions to debates about penal abolitionism and criminal law minimalism in the United States and elsewhere. First, it explains the origins and contours of European and Latin American penal abolitionism and compares it to penal abolitionism in the United States. In this context, the paper explains that European and Latin American penal abolitionism in the 1970s, 1980s and the early 1990s, was in conversation with and part of a broader set of critical ideas to humanize and reduce the scope of the penal system — that included critical criminology and “criminal law minimalism.” Criminal law minimalism states that the penal system still has a role to play in society, but a substantially reduced, re-imagined and redesigned role than the one it has played in the United States. This article’s second set of contributions consist of articulating three of the most important challenges for penal abolitionism. The first challenge has to do with harmful behavior. These types of harms do not always or necessarily require police intervention, prison or punishment responses from society. But fully discarding police intervention, prison or other potential punishments as a possible response to these situations — as penal abolitionists who advocate for “abolishing the police”, “a society without prisons” or “a society without punishment” do — can itself be unfair and inhumane, deprive the weak of protection against the powerful, harm the communities and individuals affected by these situations (including communities of color), and enable more of these harmful situations in the future. Another challenge for penal abolitionists is that even assuming that police and prisons could one day be abolished, power relations and regimes could not. Every society has to structure power relations and regimes somehow. Since the range of possible power relations and regimes is endless, the question is which power relations and regimes are more just than other alternatives. In this regard, it is not clear to me that any of the many possible variations of societies without any prisons — including the ones suggested by various penal abolitionists — would necessarily be more just than a set of societies that would still give to law enforcement, prisons or other forms of punishment a role in addressing harmful behavior. Another challenge for prison or penal abolitionists is that, for reasons discussed, it is not clear that a fair society would be a society without punishment. These challenges explain why, despite sharing the goal of eliminating inhumane, unnecessary, unfair and discriminatory penal laws and practices, I would consider myself closer to “criminal law minimalism”, rather than to penal abolitionism. This piece’s final set of contributions will be discussing the notion of “abolition constitutionalism” that constitutes main, original and important contribution Prof. Roberts makes in "Abolition Constitutionalism, 122 HARV. LAW REV. 1 (2019). After explaining the rich potential of this concept and why I agree with its critique of Flowers v. Mississippi and the Batson doctrine, I will articulate the concept of minimal criminal law constitutionalism and make three points that put it in conversation with abolition constitutionalism. First, Prof. Roberts’ critique of Flowers v. Mississippi is consistent with both abolition constitutionalism and minimal criminal law constitutionalism and could be powerfully applied to other doctrines besides jury selection such as prosecutorial discretion and plea bargaining — doctrines that arguably affect many more cases subjected to the penal system than jury selection regulations. Second, I will suggest that a strong and renewed principle of criminal law as “ultima ratio” or last resort — which has not been considered a constitutional principle in the United States but is well-known in other legal systems — should be part of minimal criminal law constitutionalism and could supplement the strong anti-subordination principle that animates Prof. Roberts’ analysis. Finally, I will suggest that if implementing penal abolitionism’s and minimalist criminal law’s visions would demand not only a substantial reduction of incarceration and an elimination of arbitrary, discriminatory and violent policing, prisons and punishment, but also a more just society, “abolition constitutionalism” and “minimalist criminal law constitutionalism” would require a constitution and a social pact that include, among others, the right to education, health care, food, work and economic safety, housing, and a healthy environment. Various constitutions around the world have included these rights.