[Parts of this post were originally written for Jacobin, but they ghosted me so it wound up never getting published.]
The Left designates a considerable amount of its efforts to resisting the prison industrial complex and the racism and violence of the police. What often gets left out of their analysis is the actual exploitation within the criminal law itself. When this exploitation is not addressed, it leaves out the fundamental basis for why the state has such an antagonistic relationship with the people it is supposedly serving. That lack of discourse has given capitalists a monopoly in dealing with, and defining, social violence.
At the end of the day, the Koch brothers could care less if their profits are coming from a prison or a re-entry program. They could care less if the law is being enforced at gunpoint or by a nonlethal weapon filmed with a body cam. What matters to the capitalists and their politicians allies is that disrupting or undermining capitalism is punished with the full panoply of state power and that the criminal law can squeeze out what little money is held by the working class in order to fund their own criminalization. While it is important to rally against the police and prisons of the state, the anarchist vision of a New Abolitionism falls short of what is needed. We must overthrow the very ideas of what is criminal, and to do that requires not only the end of capitalism but a socialist state.
The modern criminal law is fundamentally shaped by the capitalist economy. But this relationship is not quite as clear as other realms of the law: contracts, property, and various other realms of law employ no subtlety in how they are made to protect the power and privileges of the upper classes. Criminal law functions as a separate personality. Like many other functions of feudal states (as I wrote about previously with landlord/tenant law), pre-capitalist criminal law was subsumed and repurposed by capital to meet the ends of a new economic system and the class that dominated it. Modern criminal law originates from Christian systems of certainty in punishment as handed down by an authority.
Authority and certainty are the two key elements of any legal system. Certainty simply refers to a public understanding in the society that if, for example, someone steals from another person, they will face a specific punishment based on their actions. Without certainty, it is difficult to distinguish what is “the law” and what is a ruler consolidating power based on arbitrary decisions. Authority is what anarchists refer to as the state’s monopoly on violence and what Lenin called “a power which arose from society but places itself above it and alienates itself more and more from it.”
Both of these elements are dialectical. Certainty must be contradicted to preserve state power, most infamously in the impunity of police officers. But not all its contradictions are so intentional: some arise simply from human error in crafting the law and others are opened up strategically by Leftist lawyers. And the law, to preserve itself, will assimilate those contradictions: as such the dialectic is legal prescription by case law and statute (thesis) and legal contradiction (antithesis), resolved by synthesis to restore certainty (though never for long).
Similarly authority is created by the resolution of its own contradictions. Authority only exists when it is recognized, a basic principle that everyone from Hobbes to Foucault has recognized. But to “deserve” that recognition, authority must be “above” society: we trust a doctor to diagnose our illness because she is “above” us in her knowledge of the subject. This authority though is often not “deserved,” whether by fraud or human error. As such, those under the authority may rebel, and such rebellion is generally dealt with violence, or as Lenin called it “the special bodies of armed men having prisons, etc., at their command.”
Under the Christian system, certainty was dictated by the religious doctrines imposed by the Catholic Church in Europe and later by the various European colonizers who brought their various sects of Christianity to the places they occupied. It is a cruel irony when activists in Europe or the United States criticize the homophobic laws of other countries, because nearly all of those laws can be traced back to the very same European nations imposing them by force in the name of Christianity.
The rise of industrial capitalism also saw the rise of the modern ideas of criminal law, along with the standing municipal police forces to enforce them and the prisons to provide the means to enact the punishments. An early example of replacing the Christian conception of divine morality with market dynamics, the Criminal Ordinance of 1670 in France, was famously illustrated in Foucault’s Discipline and Punish. It is no coincidence that the rise of Jean-Baptiste Colbert’s state capitalism in France was accompanied by what Foucault called an “economy of punishment.” A crime and its punishment are variables in an economic function. Their exchange values are determined based on their ability to subdue disruptive or dysfunctional class elements. How the criminal law accomplishes this task can be divided into two intersecting categories.
First, it coerces subjects to participate in state-sanctioned markets. This method is most appallingly demonstrated in the United States’ War on Drugs. If capital’s army of surplus labor, the unemployed, suddenly finds a means to survive or even thrive outside the state-sanctioned economy, it seriously jeopardizes the ability of capitalists to control the working class, especially those in unskilled sectors like fast food. That is not to say that the judges, police, and prison wardens have any illusions that the state will ever succeed in using the criminal law to stamp out black markets. It is not the annihilation of the black markets that capitalism requires: only to sufficiently control its participation by making the risk to enter the black market high, even lethal. Every shipment seized, every dealer incarcerated, and every sex worker forced into a sweatshop gives the state enough control to prevent a dangerous abandonment of state-sanctioned markets by the working class.
Some of these crimes, like child pornography, are unquestionably anti-social and violent, while others are simply means to target certain populations that cause problems for the ruling order. The criminal laws around drugs were ramped up in conjunction with Black resistance movements. The same month that Assata Shakur was arrested in New Jersey saw the passage of the Rockefeller Drug Laws in New York. The same month that Richard Nixon declared a “War on Drugs” saw the emergence of the Black Liberation Army. Essentially, the capitalist politicians developed the criminal statutes on drugs to be able to destroy or weaken Black alternatives to state-sanctioned capitalism, regardless of whether those were resistance movements like the Black Panther Party or black markets controlled by gangs.
The criminal law also is built to preserve the social order necessary for the circuit of capital. While a capitalist legal system creates a great deal of immunity for the upper class and the police, lines can be crossed that threaten to incite public discontent against the market. When police officers actually do get convicted, they are bittersweet victories. The criminal law is not being reconfigured to recognize that Black lives matter: it is that the District Attorney and judge are concerned about disruptions of social order seen in Ferguson and Baltimore, as well as the more concerted disruptions Black Lives Matter activists have organized on highways, political rallies, and trendy brunch spots. Essentially, the criminal law system will sacrifice its own enforcers in order to preserve itself and capitalism. It instills the totality of the system’s racism into a “bad apple” individual separated out from capitalism, and far too many are more than willing to believe this hegemonic narrative.
The punishment of crimes are designed to vary little in anything except quantity: a fine of x dollars, a prison sentence of x days. This was a major change from the pre-capitalist legal systems that employed sadistic creativity in their punishments, ranging from the public shaming of the stockades to the gruesome dismemberment of draw and quartering. They were based on the whim and power of the punisher. Punishments in criminal law have narrowed in variance to allow it to function like currency. It is no coincidence that criminal punishments are talked about as “paying for their crimes” or “they owe a debt to society.” A criminal trial is essentially litigating a breach of the “social contract” the person holds with the state. The state evaluates the cost of the criminal act and the defendant attempts to either argue that they did not breach or bargain for lower damages.
Like any contract negotiation, the money and power held by each side and how much the crime costs determine how it proceeds more than any of the stipulations of the contract itself. And much like currency, criminal punishments have little to no social use outside of their exchange value. A jarring example of this is the state’s response to sexual violence: a man who commits rape, seriously damaging a woman’s life far more than any function of the market, can be sent to prison for several years but in most places no reparations or assistance will be given to the survivor of the rape. And even where there are, such as in California, the state’s overall priority remains capitalistic rather than social. Reparations are at most an after-thought to the central punishments of a fine and incarceration.
So if criminal punishments are the currency of criminal law, why aren’t they entirely monetary rather than the mix of fines and incarceration? Because deprivation of freedom forms the rate of exchange in the criminal law system. It is the ultimate punitive measure since the worker’s only individual economic power rests in their capacity to exchange their labor power. The 13th Amendment of the U.S. Constitution speaks strongly to this aim:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States…
If the state is going to expend large amounts of resources to preserve capitalism through the criminal law, it must recuperate at least some of these costs through hyper-exploitative prison labor. But there lies a common misconception: U.S. prison labor, even as it has begun to go beyond a million workers, is not making the state a profit. While it certainly makes private corporations a profit, in New York state alone the corrections system costs the state $3.1 billion. It costs about $60,000 per year to incarcerate someone in New York. It is simple economic reality to know that the state is not incarcerating people to make a profit off their near-free labor because on average their labor just will not generate more than that cost of $60,000 per year. Carceral peonage through the 13th Amendment is not about making money for the state. It is about segregating dissident workers: their enslaved labor just mitigates the costs of this segregation.
The U.S. Constitution is the country’s supreme law, and its Bill of Rights is often cited to prove that equality of opportunity and human rights are protected by the state. But while the Bill of Rights does have influence, it is ultimately the criminal law that determines the rights of individuals. The rights allowed by criminal law are thus also variables in an economic function. Due process, for example, is not the preservation of the right to liberty or privacy as claimed but rather a function of preserving the right for an authority (the judge and jury) to arbitrate the contract between two parties (the criminal and the state). Freedom of assembly or speech transforms into disorderly conduct, trespassing, or unlawful assembly when done at a protest, and even when the charges do not stand up in court, the state extracts payment through the arrest and pre-trial detention and bail. And as Chelsea Manning is an unfortunate witness to, freedom of speech can transform into treason if the state feels sufficiently threatened. At the edge of every constitutional right is a criminal statute enforcing capitalism.
Once this dialectical relationship between crime and rights is understood, it becomes clear that abolishing mass incarceration in itself will not end the exploitative nature of the criminal law. Whether the punishment is a diversion program, weekend prison, house arrest, or even mandated drug tests, it will still be a deprivation of the liberty of the individual for failing to economically fall in line with what the state wants. Prison abolition will only alter the payment method, it will not change the fact that lower classes will still have to pay for dissent and that lower class people affected by social violence will be at most a secondary concern to the state.
Evgeny Pashukanis, a legal scholar in the Soviet Union, was one of the first to analyze criminal law through Marxism. Coming to similar conclusions, he realized that freedom from the violence of criminal law would only be possible in a world without capitalism. This raised the question: if criminal law cannot be abolished in a capitalist world, how should socialists address this criminal law? Pashukanis suggested that socialists must look at a completely different motivation, means, and methodology for dealing with intra-social violence outside of the market. The foundation of this socialist alternative was the concept of “social defense.”
Social defense is not the protection of atomized individuals from each other, but rather the protection of social coherence and harmony for as many people and as intersectionally as possible. The idea of crime and its prescriptions must be replaced with the idea of social violence and its conditions. The logical conclusion of this change is the abolition of guilt itself, a step Pashukanis felt was paramount to move away from the exploitation of the modern criminal system. In the modern criminal system, guilt is determined by proving beyond a reasonable doubt that the defendant fulfilled the requisite mens rea (intentionally, knowingly, recklessly, or negligently) and actus reus (the conduct, i.e. the actus reus of murder is killing someone).
A common misconception is that mens rea is motive. While motive is important for evidentiary reasons too complicated to get into here, it ultimately is not necessary to establish guilt. If, for example, the prosecutor has an email from me saying “I am going to kill Donald Raygun” and video footage of me killing Donald Raygun, the reason why I killed Donald Raygun is irrelevant. Whether I killed him as a jealous ex-lover, a political statement, or a sadistic pleasure, I’m guilty all the same and the punishment will likely not be altered.
Mens rea must be replaced with “method of influence.” This change replaces the proportionality of a subject’s responsibility for an action economically with the correspondence of a subject’s relation to an act socially. A man is at a football game, and his team is wiping the floor with the opposing team. After yet another touchdown, he begins to scream about how the players on the field are “pussies” and playing like “little girls.” A fan of the opposing team hears him, and in addition to being angry about her team being insulted she is offended by the misogynist character of the insults. She yells back at the man, who is in turn angered and eventually the situation escalates into a fist fight. The man gets knocked down, and although he does not get up the woman is not satisfied and so pours a beer on him while he is still on the floor. The current criminal law system would likely arrest one or both participants, and charge them with crimes like assault or disorderly conduct. They would not be held accountable for the violence they committed against each other and other people, but rather held accountable for disrupting the economic order. In a social defense model, this event would not be seen as one or more criminal acts but rather a holistic collection of violent acts. Examining the evidence and witnesses, a social defense system could ascertain that the conditions of the violence were factors such as the misogyny of the male fan, the level of alcohol consumption at the event, and the lack of policy on how the football stadium deals with rude fans. The woman’s method of influence might be determined to go beyond ending the misogynist remarks of the man since she poured the beer on him in a punitive final act.
But this would not be used to ascertain her “guilt,” but rather determine if and how she must be held accountable for her actions, such as going to anger management, working through the issue with the man she humiliated, etc. All of these steps would be decided by both parties, their lawyers, an arbitrator, and if needed, some democratic community process like a jury. Procedural guidelines established by democratic law would steer the process away from an adversarial one where one party wins or is guilty in the eyes of the state.
So how do we get to this admittedly utopian sounding legal system? The criminal law, especially in the United States, is one of the strongest systems of power in the world, and is incredibly detrimental to revolutionary change. But unlike liberal progressive legal theorists who promote reforms to alter but also affirm the criminal law system, Pashukanis and other Marxist interpretations of the law demonstrate that even something as radical as the abolition of prison will not lift the capitalists’ boot of criminal law off the necks of the working people. Only through the conscious action to shift how the state treats intra-social violence from capitalist exploitation to social defense will there ever be a forms of communal accountability and justice that people can truly be equal before.
A socialist programme must seek to abolish the arbitrary ways that the criminal law targets poor people; regardless of the immediate goal, nothing less than the abolition of mechanisms like bail, parole, and the criminalization of non-violent acts such as drug use or engaging in prostitution. A socialist programme must also show that there are alternatives to the capitalist state’s adversarial method of dealing with violence, such as community-based programs like Mothers Against Senseless Killings that with one hand use crisis management and de-escalation to prevent violence and with the other protect the community from violent police interventions.
And finally, a socialist programme to abolish the concept of criminal guilt must begin at home: in every organization, party, and workplace we belong to, we must advocate that social violence (as opposed to war crimes and other abuses of power which represent a whole other issue) should be dealt with only in ways that promote social defense rather than fulfilling an individual or even group desire for punishment. None of these aims means that we will be able to always forego detaining people, always prevent violence, or always succeed at getting someone to take accountability without coercion. But in return, none of those realities make the goal of social defense any less desirable or any less attainable.
An advantage socialists have always had over the capitalists is we can fight for what may seem at the time to be impossible. The capitalists may make all sorts of claims about innovation in competition, but socialism is the opportunity to create, imagine, and reconfigure a better world without the restraint of a profit motive. A world where no one is a criminal is a fantastical notion for capitalists; a world where no one is a criminal is a necessary part of the socialist dream of a world where we are all free.