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Professor Roberts publishes Harvard Law Review Foreword on prison abolition constitutionalism

December 05, 2019

George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights Dorothy E. Roberts has written the Foreword to Harvard Law Review’s Supreme Court Issue on the 2018 term. 

In “Abolition Constitutionalism,” which leads off the first issue of Volume 133 of the Harvard Law Review, Roberts argues that prison abolitionists can “reinvigorate abolition constitutionalism” by using the Reconstruction Amendments – Thirteenth, Fourteenth, and Fifteenth – “to further their aims and, in the process, construct a new abolition constitutionalism on the path the building a society without prisons.”

An internationally recognized expert in race, gender, and the law, Roberts also spoke at a standing-room-only forum at Harvard with Harvard Professor Elizabeth Hinton in conjunction with the publication of her Foreword.

“I wanted to write about prison abolition because I think it’s the most exciting legal development – the idea that we could work toward a society that doesn’t cage human beings and that acknowledges the way in which our current prison system, policing, and capital punishment all originate in slavery and continue to perpetuate an unjust society,” said Roberts in an interview.

“As I thought about what’s a constitutional issue that relates to prison abolition,” Roberts continued, “I realized there’s been no sustained analysis of the relationship between the U.S. Constitution and the current prison abolition movement. In fact, if anything, many prison abolitionists have rejected using the U.S. Constitution on the grounds that the Constitution itself is an oppressive document that was founded during the slavery era; many also view the Reconstruction Amendments as not really abolishing slavery.”

In the Foreword, Roberts begins with a comprehensive summary of prison abolition theory, notably its foundational tenet that the current prison industrial complex originates in – though is distinct from – “racialized chattel slavery and the racial capitalist regime that relied on and sustained it.” She notes the “disconnect between social harm and carceral punishment” by citing its function as “state regulation of marginalized people” as well as “the immunity granted to state agents who commit social harms.”

Prison abolitionists, she writes, “are both developing alternative, nonpunitive measures to deal with harm and creating new conditions to prevent harm from occurring in the first place, recognizing both as better approaches to ensuring safety and security than relying on police and prisons.”

In the Part II, Roberts considers “whether the U.S. Constitution is an abolitionist document” by examining antislavery abolitionists’ reading of the Constitution and Supreme Court jurisprudence “obstructing the Amendments’ transformative potential.” She pays special attention to Flowers v. Mississippi, the Court’s “most recent decision interpreting the relationship between the Fourteenth Amendment and carceral punishment,” analyzing the “Justices’ rejection of an abolitionist approach in their ruling.”

When his case reached the highest court, Curtis Flowers had been tried for capital murder six times by white prosecutor, Doug Evans, who had used peremptory challenges to strike 41 of 42 prospective black jurors. Before the Supreme Court was the question of whether Evans violated Flowers’ Fourteenth Amendment rights by excluding a black woman from the jury in his sixth trial. Although the Court ruled in Flowers’ favor, Roberts contends that Justice Brett Kavanaugh’s opinion is “actually anti-abolitionist” in that it treats Flowers’ case as “a system malfunction” instead of recognizing “the systematic use of all-white juries in preserving white-dominated carceral punishment.”

The last part of Roberts’ Foreword links the first two sections by examining how prison abolitionists can use the abolitionist history of the Constitution “to help move forward to a radical future.” This future, Roberts maintains, can take root in “a variety of forums,” including courts, Congress, and state governments, and abolition constitutionalism can be applied to “many of the nonreformist reforms in which prison abolitionists and other activists are already engaged,” such as stopping prison expansion, ending police stop-and-frisk practices, eliminating the money bail system, repealing harsh mandatory minimum sentences, giving amnesty to those believed to have killed in self-defense, and decriminalizing drug use and possession and other nonviolent conduct.

Roberts concludes with the concept of a “freedom constitutionalism” to guide and govern the radically different society abolitionists are creating, one that could “seek to abolish historical forms of oppression beyond slavery, including settler colonialism, patriarchy, heteronormativity, ableism, and capitalism, and strive to dismantle systems beyond police and prisons, including foster care, regulation of pregnancy, and poverty” – and even extend beyond U.S. borders as it addresses the issues of deportation and U.S. imperialism.

Roberts is the second black woman to pen the Foreword of the esteemed law journal, after Harvard Law Professor Lani Guinier, and the second Penn Law professor to do so, after Paul Mishkin in 1965. In April 2019, the Harvard Law Review published Roberts’ “Digitizing the Carceral State,” a review of Virginia Eubanks’ Automating Equality: How High Tech Tools Profile, Police, & Punish the Poor.

Roberts is the founding director of the Penn Program on Race, Science & Society in the Center for Africana Studies and the author of several books, including Killing the Black Body: Race, Reproduction, and the Meaning of Liberty(Pantheon, 1997), with a twentieth anniversary edition released in 2017, and more than 100 scholarly articles and book chapters. She has accepted many awards for her work in law and public policy, particularly on urgent contemporary issues in health, social justice, and bioethics as they impact the lives of women, children, and African-Americans, including the Society of Family Planning 2016 Lifetime Achievement Award and the American Psychiatric Association 2015 Solomon Carter Fuller Award. Roberts has been elected to the National Academy of Medicine and serves on the board of directors of the American Academy of Political and Social Science.

Her work has been supported by the American Council of Learned Societies, National Science Foundation, Robert Wood Johnson Foundation, Harvard Program on Ethics & the Professions, and the Stanford Center for the Comparative Studies in Race & Ethnicity.