Delimiting community: examining the punitive implications of reformist and abolitionist discourse encoding an ‘us-them’ binary

ABSTRACT

Within reformist and abolitionist discourse on punishment, the articulation of community delimits those who can be considered a part of collective life and those who, having offended collective sentiments, are to be positioned outside the collective. By positing community at a moment of exclusion, this discourse superimposes a villain at the discursive level. This article critiques the punitive implications of delimiting community, most notably: taking for granted the dangerous few and maintaining the tenability of punitive intervention. A discourse analysis of four dominant reformist and abolitionist theorizations reveals an us-them binary across their interpretations of punitive interventions. Our discussion explores the paradox of supposing social cohesion within an exclusionary framework and considers the possibility of imagining a non-punitive discourse.

KEYWORDS:

• Reform
• abolition
• community
• punitive logic
• justice models

Introduction

Within reformist and abolitionist discourse on punishment, the articulation of community creates a border that delimits people who can be considered a part of collective life and those who, having offended collective sentiments, are to be positioned outside the collective. In this regard, it is difficult to disentangle the idea of community from the polarity of safety and danger. Rather than presume a collective identity, this article considers how some reformist and abolitionist delineations of community may restrict our capacity to conceive a non-punitive discourse.

A reformist approach tends to orientate from a liberal position and relies on the state as the predominant administrator of intervention. Communal protection is conceived by calibrating the criminal legal system to ensure sanctions meet the needs of repudiated subjects and extend proportional interventions to offences (e.g. Beccaria, 1995; Bentham, 1995; Petersilia & Cullen, 2014). Strategies of imprisonment and community-based corrections are considered appropriate reformist interventions. Conversely, an abolitionist stance engages leftist politics to problematize state institutions and critically examine the role power has in social situations and interactions with criminal legal systems. Abolitionist approaches often treat alternative social justice strategies as more appropriate responses to harm (e.g. Brown & Schept, 2017; Davis, 2003; Hulsman, 1991; Mathiesen, 1986; Schept, 2012; Sudbury, 2004). Emphasis is placed on community-led initiatives that identify individuals, actions, and social institutions that are accountable for harm so as to disrupt and minimize future instances of harm. Decarceration tactics and relatively informal frameworks of restorative justice or transformative justice tend to be supported as a more appropriate response that emphasizes the well-being of community, particularly those defined as marginalized. Abolitionism often contests reformist initiatives based on the detrimental impact Western criminal justice practices can have to collective life.

While reformist and abolitionist approaches are conceptually distinct in important ways, the way they imagine community can be similar: both are inclined to articulate community at a moment of exclusion. The content of reformist and abolitionist arguments differs, but the form remains comparable. Scholars conjure a repudiated subject to be expunged from social life. Although abolition often challenges the formulation of justice equating punishment, some forms of this critical thought kindle punitive logic insofar as scholars assume the dangerous few. As a result, this discourse is susceptible to encoding an us-them binary, superimposing a villain at the discursive level. This article does not claim that all abolitionist arguments are the same. Rather, it draws attention to a tendency in scholarly literature that is worth being aware of. At times, both frameworks take the dangerous few for granted thus distinguishing respectable subjects from repudiated subjects. As a corollary, scholars risk implying the tenability of punitive intervention. The following discussion explores the punitive implications of reformist and abolitionist demarcations of community.

This article employs a discourse analysis of dominant theorizations of reform and abolition as they surface in academic scholarship in the social sciences. A discourse analysis entails examining discursive regimes that transmit these ideas, investigating how these arguments are composed and their implications. We can return to scholarly texts that embody reformist and abolitionist thought to capture the focal concerns of these perspectives. It is worth acknowledging that ideas pertaining to reform and abolition are diverse. This article focuses on some Western criminological and philosophical literature while appreciating that reformist and abolitionist discourse extends beyond this boundary. We draw upon four prominent figures who are often cited for their significant contribution in developing reformist and abolitionist thought to illustrate a trend that passes through some conservative and progressive arguments. Bentham (2007, 1995) exemplifies a classical liberal reformist position in An Introduction to the Principles of Morals and Legislation and The Panopticon Writings. A positivist approach is apparent in Lombroso’s (2006) five volumes on Criminal Man. Early configurations of abolitionism are often informed by Mathiesen’s (2015) book The Politics of Abolition, and more contemporary iterations draw upon the critical thought that Angela Davis (2003) offers in Are Prisons Obsolete. While it may seem counterintuitive to consider such divergent interpretations, each of these works demonstrate problematic presumptions that should raise concern for scholars, researchers, and people working towards zero-punishment. To analyze the assumptions embedded within reformist and abolitionist discourse, we ask how scholars conceptualize the ideas of crime and punishment. How is community delimited within this discourse, and what are some implications of this demarcation?

The first section of this article elaborates the epistemological premises informing our analysis. We use a radical constructivist perspective to question the ontological basis for danger. After outlining this perspective, we draw attention to contemporary literature that highlights some limitations of reformist and abolitionist configurations of community. This article then suggests that reformist and abolitionist perspectives often follow Durkheim’s (1972) conception of community, which has punitive implications. An analysis of four predominant reformist and abolitionist theorizations reveals a unitary link across their interpretations of punitive interventions: each argument we consider depends upon an us-them binary, thereby constructing a repudiated subject. In this regard, reformist and abolitionist thought exemplifies a paradox: scholars suppose social cohesion within an exclusionary framework. After drawing attention to punitive presumptions within this discourse, we consider the possibility of transcending the us-them binary to imagine a non-punitive discourse.

Epistemological premises

This discussion adopts a radical constructivist perspective. For a radical constructivist, it can be assumed that external reality exists, but any experience of it depends on some discursive, conceptual armature (Carrier, 2011; Luhmann, 2002). In this view, external reality is not something that inscribes itself on the subject. As such, it cannot be correctly documented via one particular kind of vision, such as scientific method. Rather, the subject is an active component in the filtering of reality, and performs this filtering by dependence upon concepts and language choices that could be otherwise. For the radical constructivist, it follows that language is to be treated as a force in the world and subject to critical scrutiny.

Bacchi (2009; see also Bacchi & Eveline, 2010; Spivakovsky & Seear, 2017) provides a list of analytical concerns that are central to the interrogation of language or efforts to represent reality. First, how does representation normalize some ways of thinking while disqualifying others? Second, what kinds of subject positions are produced via representation? Third, what are the material consequences of representation? In short, constructivist epistemology focuses on how representation has effects upon our conceptual understandings, the production of desirable (and undesirable) subject positions, and practices.

In what follows, our focus is primarily on the first and, albeit to a lesser extent, the third of these analytical concerns. That is, we concentrate on the significance that reformist and abolitionist discourse has for our conceptual understandings or frameworks, and the practices that such frameworks rationalize.

Grounded in this epistemology, our main argument is that reformist and abolitionist discourse can, and sometimes does, encode a repudiated subject and this rationalizes punitive interventions. Such discourses presuppose the dangerous few as constitutive of a real social category rather than a mental construct. Depending on how scholars position themselves, the identification of repudiated subjects differs. Reformist approaches tend to associate the concept of crime with individuals. Within this formulation, people who express recalcitrant attitudes, such as those labelled mentally ill, are conceived as repudiated subjects. In contrast, abolitionists identify structural forms of repression that individuals or social institutions engage in. In this case, people driven to crime by social circumstances might be construed as repudiated subjects. Such presumptions are not necessarily evident within every piece of abolitionist literature. Abolitionist work often tries to address harm while severing it from punishment (for examples, see Bianchi, 1994; Mathiesen, 1974, 1986). The point at issue here is that reformist and abolitionist discourses can leave undisturbed the idea that there is an ontological basis for danger, and that doing so puts intervention on the table.

One treads into difficult and uncomfortable territory when one posits that there is no social substance to repudiated subjects. The critical idea of harm loses its usefulness because this concept can imply that counteraction is required after hurtful instances. Abolitionist thought often supposes harm is a product of structural systems of race, gender, class, age, or sexuality that operate throughout society. From this perspective, one can identify individuals, actions, and institutions that cause harm, without requiring punishment. That being said, at the level of thought, abolitionism tends to rely on Marxist realism which sustains the philosophical distinction between people classified as powerful and people classified as powerless. If we suppose that people are conditioned to cause harm or regard society as punitive, we are limited to a deterministic framework wherein hurt is taken for granted. It is challenging to envision life absent of wrongdoing if we presume that hurt will happen given particular material or socio-cultural factors. A capacity for prejudice remains when we entertain causal reasoning, insinuating a wrongdoer exists.

To refute punitive logic at the discursive level, we need to move beyond the proposition that crime and punishment indicate natural or self-evident social facts. These ideas can be understood as different forms of punitive intervention mobilized via discourse that enacts punitive logic. This premise is adopted to challenge the critical notion of harm to the extent that it may be used to mobilize counter-interventions to minimize future hurt. One cannot lay claim to intervention if one recognizes there is no social substance to repudiated subjects.

We can refer to the notion of legal fiction to contest punitive intervention. Within criminal legal systems, legal codes delineate acceptable and prohibited acts (Carrier, 2011). By codifying wrongdoing, the law conjures a repudiated subject. The significant point to make here is that the law formalizes crime (Kruse, 2015). The law posits the notion of harm to distinguish an ‘aggressor’ and a ‘victim’ as separate categories. However, this discernment reinforces the binary framework of self versus other or us versus them.

The signification and connection between a repudiated subject and community are not grounded in reality but presumptions within these two concepts. In the context of reform and abolition, scholars assume a legal fiction that relies on a process of encoding wrongdoing and delineating sanctions to rectify hurt. By approaching punitive interventions as discursively mobilized, this article highlights how reformist and abolitionist interventions depend on particular socio-cultural presumptions that have punitive implications.

Challenges with identifying community

The idea of community is central to reformist and abolitionist strategies. Nevertheless, criticisms have been raised, especially towards abolitionist thought, for its inadequacy to substantiate a theorization of a political community or collective identity that can exist without penal norms (see Carrier & Piché, 2015). Reformist approaches suppose the state is the authoritative figure to ensure collective safety. Hence criminal justice models are developed to align with state-sanctioned legal systems. Abolitionist scholars problematize Western criminal legal systems, often preferring social justice initiatives which stress grass-roots collective organisation. Communities identified as marginalized are regarded as legitimate agents to mobilize intervention. Thus, restorative justice or transformative justice initiatives are considered possible strategies. A limitation across these various justice models is the prefiguration of community from the outset. Scholars rarely scrutinize the delimiting of community and how this categorization influences the way we perceive differences among people.

Abolitionist thought does not provide a way to theorize cohabitation difficulties on an international scale, such as war (Carrier & Piché, 2015). This points toward a limitation of the expansive interpretation of carceral abolitionism, which seeks to contest modes of repression that operate beyond the frontier of criminal law. A clear articulation of how international relations can operate without punitive logic is a requirement to fulfil the abolitionist promise of envisioning possible futures absent of retaliatory harm (Carrier & Piché, 2015). Critical interpretations extending Agamben’s (1998) critique of the camp are not always accompanied by the refusal of punishment or incarceration (Carrier & Piché, 2015). While these critiques may problematize the situation of people who are detained and denied political existence––as is the case in Guantanamo Bay––this does not necessarily lead to the contestation of criminal justice initiatives on a worldwide scale, such as International Criminal Courts, which continue to extend the idea of impunity equating injustice (Carrier & Piché, 2015).

The demarcation of marginalized social groups is an important tenet in abolitionist and critical thought to challenge the monopoly of state-based criminal justice systems, which diminish the interests and needs of people who are unfairly subject to state criminalization (Carrier & Piché, 2015; for examples, see; Ben-Moshe, 2020; Brown & Schept, 2017; Cullors, 2019; McLeod, 2015). This premise supports collective solidarity via community-based interventions (Carrier & Piché, 2015). However, abolitionism is limited in articulating ‘a non-violent enforcement of a norm of non-violence’ (Carrier, 2022, p. 13). We can draw on a thought experiment to illustrate this critique. If a person acts in a way that hurts another person, and their action is motivated by sexist ideology, most critical and abolitionist scholars would suppose such acts are morally problematic or politically sinful, insinuating that this person should be held accountable. The point is that whatever measure one considers to rectify this individual’s wrongdoing would exemplify a self-defence tactic to affirm the person’s life exposed to a derogatory situation. In this case, it is dubious that an abolitionist would abandon an interpretative frame of individual culpability or conceive an outlook of zero-penality. It cannot be assumed that all abolitionists construct subjects that pose a threat to social order, but the propensity is there if scholars establish social or cultural circumstances as conducive to danger. Such a perspective is tricky as hurt is often related to ethical and moral principles delineating action as right or wrong, virtuous or wicked. The point is not to say that sexist claims or acts are socially acceptable. However, it is difficult to imagine non-punishment if we presume political sin. To move beyond equating impunity with injustice, we need to interrupt personal judgement that encodes wrongdoing.

Issues with Durkheim’s conception of community and solidarity

Much reformist and abolitionist discourse emulates Durkheim’s (1972) conception of community and solidarity. Durkheim (1972) perceives society as a living organism which assumes a collective consciousness, sustaining shared norms, beliefs, and values that can change gradually over generations. Collective consciousness represents a particular collective type expressed through individual persons. It remains distinct from individual consciousness as shared social norms exist before an individual’s birth and after one’s death. Society is posited as pursuing cohesion and integration, but Durkheim (1951) raises concerns with anomie: the potential for social disintegration or a state of normlessness if a group does not engrain common values to bring people together. From this perspective, the community operates as a borderline to establish the values of a collective and re-establish them when they are offended.

Durkheim regards the law as central to solidarity. Crime, according to Durkheim (1972), represents an instance to (re)define and uphold collective sentiments:

If … when a crime takes place, the individuals whom it offends do not unite to manifest what they share in common, and to affirm that the case is anomalous, they would be permanently shaken. They must fortify themselves by the mutual assurance that they are still in unison. The only means for this is action in common. In short, since it is the conscience collective which is attacked, it must be that which resists, and accordingly the resistance must be collective. (pp. 127–128)

From this perspective, social cohesion depends on an individual’s conformity to the community (Durkheim, 1972). Collective indignation towards an act that violates shared presumptions of acceptable forms of relationality establishes mutual resemblance. Durkheim (1972) supposes that crime reinforces solidarity via the collective expression of outrage. A theoretical issue with Durkheim’s conception of solidarity is that it depends on a moment of othering to link people to a collective social identity. Such logic is paradoxical: one cannot suppose solidarity in an exclusionary framework. Durkheim (1972) equates solidarity with compliance to communal sentiments. People who offend group opinion are considered reprehensible and thus depreciated.

Reformist and abolitionist discourse follows Durkheim’s (1972) logic as their articulation of community often rests on exclusion. While there may be instances where scholars seek to decentre their assumptions around the idea of community, more often than not, scholars positing reformist and abolitionist strategies come to the table with a preconceived idea of community and subsequently communicate principles or collective sentiments that adhere to this prefigured social group. A punitive implication of delimiting community is that scholars conjure a repudiated subject, implying that some people endanger social life.

While reformist and abolitionist discourse is supposed to unite people by favouring collectivist strategies and community ideals, it amounts to unitary fiction. Both approaches suppose that the enclosure of the dangerous few is necessary to defend collective life. Without necessarily intending to, scholars positing these strategies take the legitimacy to mobilize punitive intervention for granted. The following section analyzes four dominant theorizations of reform and abolition, which encode an us-them binary.

Reformist and abolitionist identification of a repudiated subject

The body of reformist and abolitionist literature is far broader and varied than the following four major texts. On either side of the spectrum, there is a wide range of perspectives and approaches used to advance ideal justice models. This discussion provides a detailed analysis of four contributions of scholarship to illustrate a problematic tendency wherein scholars with divergent political views identify the dangerous few and rationalize intervention. Our argument may not be generalizable to all scholars positing reform or abolition as we do not examine discourse beyond Western criminological and philosophical thought. And, of course, even within Western scholarship there is diversity of thought. Nevertheless, the punitive implications explored in this case study are relevant to scholars, researchers, and activists forwarding reformist and abolitionist ideas in academia or more broadly in social life. If there is a continuity between reformist and abolitionist thought extending punitive logic, greater consideration to the potential pitfalls of critical and abolitionist perspectives is needed. Inattention to problematic claims in abolitionism restricts our capacity to radically challenge normative expectations surrounding hurt.

Jeremy Bentham

Bentham’s liberal philosophy calls for legal systems that pursue proportionality between offending behaviors and punitive interventions. In this context, reformist intervention is necessary to uphold the utilitarian principle of ensuring the greatest happiness in society to the largest number of people (Bentham, 2007). Happiness is conceived as a balancing act between enjoyment in pleasure and security from pain: ‘The value of the punishment must not be less in any case than what is sufficient, to outweigh that of the profit of the offence’ (Bentham, 2007, p. 267). While punishment is considered a social evil, Bentham (2007) supports its legal implementation as a defence against ‘some greater evil’ (p. 255).

Bentham supposes that human nature guarantees people are governed by self-interest to preserve private advantage, even if this is detrimental to the collective good. Rational judgement is not considered to extend far beyond assessing personal interests. Hence, a well-calibrated punishment system communicates moral education. Punishment is a reminder that the state will no longer protect an individual’s interests if they offend legal regulations. For punishment to be efficient and effective, Bentham (2007) contends, it must meet certain conditions. Punishment must be imposed upon all offences. The cost associated with punishment must exceed a given infraction’s rewards. Punitive sanctions should not be driven by emotion as doing so would generate disproportionate penalties that bring the state’s legitimacy into question.

Bentham (1995) proposes reform via panoptic architecture. Prisons offer a new modality to obtain power over peoples’ minds in a way previously unimagined. He believed this form of intervention mitigates the abuse of historical practices of the corporal infliction of pain (Bentham, 1995). Prisons provide a secure location to watch over people deemed dangerous. Bentham suggests panoptic building designs need not be limited to punishment but have practical applications in healthcare and education. He rationalizes extending surveillance and self-regulation mechanisms to a spectrum of social settings, assuming that these situations can be injurious if proper care is not guaranteed. In this context, the ideal of reform, as Bentham (1995) explains, is to facilitate preventative measures that ensure people identified as dangerous or ill are secure in a designated location that affords collective safety and protection:

Among the other causes of the reluctance, none at present so forcible, none so unhappily well grounded, none which affords so natural an excuse, nor so strong a reason against accepting of any excuse, as the danger of infection: a circumstance, which carries death, in one of its most tremendous forms, from the feat of guilt to the feat of justice, involving in one common catastrophe the violator and the upholder of the laws. But in a spot so constructed, and under a course of discipline so insured, how should infection ever arise? Or how should it continue? Against every day of this kind, what private house of the poor, one might almost say, or even of the most opulent, can be equally secure?. (pp. 31–32)

There is a punitive assumption within Bentham’s configuration of intervention. By positing that some people threaten social order, he assumes the dangerous few constitute a real social category. Prisons, then, operate as an enclosure, removing repudiated subjects from social life. Bentham does not question the idea of crime, as he contends that punishment presupposes offences. While he mitigates the abuse of corporal sanctions, Bentham supposes denying specific individuals from community life is necessary to ensure collective safety. Consequently, Bentham’s reform does not question the legitimacy of punishment; he reinforces the perception that punishment is appropriate for crime prevention.

In much of the Anglophone world, the idea of using punishment to re-socialize the individual, to rehabilitate them such that crime would no longer be perceived as a rationally defensible choice, was a dominant penal logic throughout the 20th century and is still discernible today. It has, however, increasingly been displaced by the logic of incapacitation and deterrence (Garland, 2001). Where a logic of rehabilitation governs state-orchestrated interventions, they tend to take the form of ‘correcting’ the individual. This is especially evident in the recurrent use of cognitive-behavioral therapies, alongside a range of other approaches derived from the field of psychology, which assume that repudiated subjects think in ways that involve ‘distortions’ or ‘errors in reasoning’ (Kramer et al., 2013).

Cesare Lombroso

A positivist approach to reform takes crime for granted, presuming it is a problem determined by biological, psychological, social, or environmental factors. Individual characteristics are identified and posited as appropriate points of intervention. Lombroso’s (2006) five volumes on Criminal Man are known for propounding a typography of criminal types; the most commonly recognized is ‘born criminals’, with others including the ‘criminaloid’, ‘habitual criminal’, and the ‘criminal of passion’. He maintains that all criminals possess distinct biological features, albeit to varying degrees.

Lombroso adopts a causal theory, one modelled on the representational epistemology associated with the natural sciences. He supposes that some cases of recalcitrant behavior are atavistic, a distinguishable ancestral trait. As he describes, some ‘criminals resemble savages and the colored races. These three groups have many characteristics in common, including thinness of body hair, low degrees of strength and below-average weight, small cranial capacities, sloping foreheads, and swollen sinuses’ (Lombroso, 2006, p. 91). This theorization has been discredited for its derogatory premise, perpetuating racist ideology (see Kramer & Oleson, 2022).

Lombroso may be one of the earliest proponents of alternatives to incarceration. Assuming crime is inevitable in society, he sets clear parameters around who must be sanctioned in institutions and who may be eligible for alternative penalties. Lombroso rejects the philosophical premise of individual responsibility as he contends that people are predisposed to compulsions outside their control. He supports punishment for social defence, but his approach differs from classical interpretations. Lombroso stresses the functional aspects of punishment in providing specialized therapies. He supposes the application of legal discretion based on the degree of danger an individual poses to society. Lombroso believes this will ensure appropriate sanctions. Those presumed dangerous are to receive services in specialized institutions. Lombroso (2006) argues that repudiated subjects identified as ‘born criminals’ or ‘habitual criminals’ warrant perpetual incarceration as a measure of societal protection. He does not believe these subjects are reformable. Lombroso (2006) also suggests that ‘insane criminals’ should be separated from social life in facilities offering specialized treatment to their needs. The criminal insane asylum is posited as a humane alternative to prisons.

Lombroso (2006) suggests that prisons could harm some individuals. He contends that ‘occasional criminals’ risk recidivism if exposed to incorrigible individuals he terms ‘born criminals’. Hence, Lombroso (2006) offers a variety of substitutes for prisons:

In cases where the crime of a youth requires serious punishment, short periods of incarceration must be avoided. Prisons are schools for crime of the most damaging type. We should substitute corporal punishment for prison sentences whenever this can be tolerated by the sometimes absurdly delicate sensibilities of our culture. Other alternative punishments, which can be meted out in gradations, include food rationing, cold showers, forced labor, house arrest, exile to inhospitable countries, and (least severely) fines. (p. 141)

Lombroso intends to prevent crime by neutralizing its supposed causes. In his view, punishment measures must balance humane treatment alongside public demand for security. However, by fixating on the identification of ‘criminal’ symptoms, he takes the legal right to punish for granted. State-sanctioned interventions are conceived as an essential barrier against the dangerous few. By giving theoretical importance to biological factors, bio-criminology maintains that the dangerous few can be identified as an objective social category based on individual deficits detectable in the natural body. Such positivist views leave little room to consider the influence of social structure on punitive intervention (Kramer & Oleson, 2022).

Thomas Mathiesen

European prison abolition came to prominence in the 1970s following Mathiesen’s (2015) publication of The Politics of Abolition, which considers the possibility of a world without prisons. The goal of abolitionism, in his words, is a ‘radical criminal policy’ (Mathiesen, 1986, p. 81). By valorizing local communities––not the state––as a site of transformative potential, the question of punitive intervention moves away from supposing adequate afflictive sanctions to a consideration of responses that meet the needs of people and their communities. Ethics of ‘knowledge, proximity, and dialogue’ (Ruggiero, 2010) is conceived as an affirmative break from criminal justice, inciting strategies to redress cohabitation difficulties in local communities.

Mathiesen (1986) is cautious of positing concrete alternative solutions as they can potentially extend prison-like practices and functions. Thus, Mathiesen (1986) proposes an ‘unfinished policy’ which contends:

the only true alternative would in fact be contained in a state of permanent, unfinished revolution, or at least in a matrix of social relationships which were constantly evolving. Once structured and systematised, and especially once planned and designed ahead of time as alternatives to prison, the alternatives would in fact only become extensions of the prison structure. (p. 81)

This model is presented as a way to think about alternative strategies to conceive crime and punishment without codifying or prescribing them. Nevertheless, it is worth excavating a presumption that guides this abolitionist criticism. Mathiesen presumes the notion of harm. This concept is a critical device to scrutinize the hurt (re)produced by criminal legal systems. However, this conception is restrictive as it continues to attribute meaning to dangerousness. One must concede that some people threaten social life.

Mathiesen advocates an analysis of the relationship between short-term reforms and long-term abolitions. In this context, reform is conceived as chipping away at current systems rather than consolidating them. Mathiesen (1986, 2015) identifies these interventions as ‘anti-prison’ initiatives with strategies including improving the lives of prisoners, highlighting the inhumanity of prisons, and halting prison expansion. Mathiesen (1986) offers several rationales for reform: prisons are considered ineffective at individual prevention; they fail to meet the principle of deterrence; they are costly and so money spent on prisons would be better spent elsewhere; from a humanistic perspective, prisons exemplify an inhumane environment which inhibits rehabilitation; lastly, the cultural values of prison tend towards the degradation of people, ‘[emphasizing] violence … as a method of solving interhuman conflicts’ (Mathiesen, 1986, p. 92). Mathiesen asserts that retaliatory harm cannot be morally justified. The humanity of persons subject to such sanctions is offended by this approach.

Mathiesen (1986) argues that repressive punishment institutions are irrational and unjustifiable. Abolitionist logic is considered reasonable insofar as it is supported by empirical evidence, which Mathiesen (1986) believes, speaks to positive facts:

Over the past couple of decades, criminology and sociology have produced a large number of solid empirical studies showing, quite clearly, that the use of imprisonment does not improve the incarcerated law-breaker. For a long time, this fact has been used, irrationally, as a reason for building more prisons, and for using prisons more. The argument has been that since the amount of imprisonment has not helped, we need more of the same. Within the context of the right political climate, ineffective systems may thrive and expand for a long time on such an irrational reasoning. But, as I say, the reasoning is irrational. The large number of studies are a strong argument against prisons in general, and certainly against building more of them. (p. 89)

Mathiesen contends that incarceration makes little sense as it does not ‘reform’ repudiated subjects. An implicit assumption underpins his argument. Even though criticism focuses on problematic situations rather than individual actors, Mathiesen takes the ontological basis for danger for granted. It is also worth acknowledging that Mathiesen’s reliance on empirical evidence is a premise adopted by liberal reformist scholars to highlight the neglect of criminal legal systems (Carrier et al., 2019).

In reflecting upon things to expect in a ‘future beyond abolition’, Mathiesen (1974) suggests the medical profession will implement intervention instead of criminal legal systems. While crime is conceived narrowly and depends on the judgement of past actions, a conception of illness implies a future-orientated project that considers possible interventions that may be appropriate to treat people. This premise sounds similar to reformist advocacy for rehabilitation strategies. Mathiesen presumes that certain people need to be sanctioned to achieve collective well-being, now or in the future. While this configuration of social defence differs from reformist positions, it shares the presumption that the enclosure of the dangerous few is required to achieve social harmony.

Angela Davis

Within recent decades abolitionist thought has developed significantly in countries defined by histories of colonization and imperialism, notably in the United States, as well as Australia, Canada, and Aotearoa/New Zealand. Davis (2003) critiques state violence by elevating the social categories, structures, and individual identities that have received little attention in earlier European formulations of abolition. The ideological function of prisons is stressed to examine the material issues and detrimental impact of state sanctioned institutions on communities.

A noteworthy conceptual device Davis uses to contest state punishment is the prison industrial complex (hereafter PIC) which extends upon the notion of the military-industrial complex. The PIC is defined in relation to the history of the United States and its imperial pursuits. This idea supposes a reciprocal relationship between an array of actors and social forces that reap surplus value, directly and indirectly, from state prisons: including the social structures of capitalism, colonialism, racism, white supremacy, heterosexism, and neoliberalism; politicians and political lobby groups; legal agents and penal activist groups; corporation and media conglomerates. This criticism stresses that such agents and social forces exacerbate inequality and amount to the disintegration of community, leading to abolitionist demands.

Davis (2003) contends that repudiated subjects are symptomatic of social dysfunction facilitated by racial capitalism. Assuming a Marxist perspective, Davis argues that economic determinism alongside historical necessity provides the context to explain why communities identified as marginalized are disproportionately subject to state interventions. The prevailing social order is considered to extend an ideological framework of white hetero-patriarchy, which targets people who do not abide by these normative expectations. There are many things we can take away from this critique. By foregrounding the exploitative and coercive aspects of prisons, Davis (2003) points towards political and economic motivations of contemporary punishment practices which reformist positions often fail to address.

Davis (2003) draws attention to experiences that much historical reformist and abolitionist discourse side-lines. However, by imputing meaning to the socio-cultural categories of class, gender, and race, Davis (2003) conflates the idea of dangerousness with social locations:

The persistence of the prison as the main form of punishment, with its racist and sexist dimensions, has created this historical continuity between the nineteenth- and early-twentieth-century convict lease system and the privatized prison business today. While the convict lease system was legally abolished, its structures of exploitation have reemerged in the patterns of privatization, and, more generally, in the wide-ranging corporatization of punishment that has produced a prison industrial complex. If the prison continues to dominate the landscape of punishment throughout this century and into the next, what might await coming generations of impoverished African-Americans, Latinos, Native Americans, and Asian-Americans?. (p. 37)

Davis (2003) does not necessarily suppose a direct causal relation wherein punishment follows crime. Instead, a complex amalgamation of social structures, state agents, corporate enterprises, and politicians is believed to support the state’s punishment industry. The issue with this theorization is that it still supposes an ontological basis for danger. The association between punishment and the convict lease system of slavery does not provide a way to theoretically refute the idea of danger. The claims Davis makes about the overrepresentation of marginalized communities within the PIC, imply that individual offending is detectable within these populations. It is inconceivable that so many people are in prison without violating legal codes. To this end, Davis sidesteps the theoretical issue of the dangerous few. People identified as poor or marginalized may be read as a threat to social order to the extent that they remain outside of prevailing social norms.

Unlike Mathiesen’s model of the unfinished, Davis (2003) does not hesitate to support community-based alternatives to prison:

Debates about strategies of decarceration, which should be the focal point of our conversations on the prison crisis, tend to be marginalized when reform takes the center stage. The most immediate question today is how to prevent the further expansion of prison populations and how to bring as many imprisoned women and men as possible back into what prisoners call ‘the free world’. How can we move to decriminalize drug use and the trade in sexual services? How can we take seriously strategies of restorative rather than exclusively punitive justice?. (pp. 20–21)

Davis (2003) implies the need for ethical strategies to achieve healthy communities founded upon a desire to care for people. Alternative intervention strategies propose organizing social relations so that harm is redressed via processes promoting community well-being. Davis (2003) challenges the presumption that a healthy community is impossible without incarcerating people in state institutions.

However, as Mathiesen (1974) cautions, positing decarceration strategies does not necessarily result in intervention reduction. There are several corollaries of abolitionists’ delineation of community and idealized punitive interventions. By elevating the question of what an alternative intervention could be, the issue often becomes a matter of who can be considered a legitimate agent to mobilize conciliation tactics and what community-based resources are required to achieve such practices. Admittedly not all abolitionists propose alternative interventions but this gravitation is worth being aware of when encountering critical scholarship. This strategy, arguably not unlike conservative or liberal approaches, takes for granted repudiated subjects and the legitimacy to mobilize intervention. The state is regarded as inappropriate. Nevertheless, community agents are supported to engage alternative interventions. While a community accountability model supposes anti-authoritarian features that depart from state practices, it increases the general population’s capacity to mobilize intervention.

It is easy to understand why scholars posit alternatives. If they did not, the critique that would be levelled against them is ‘well, what is the alternative?’ But, and this is our key point, this is where matters get complicated: there is difficulty in positing alternatives without assuming ‘danger’ and the inevitable need for intervention.

Contesting the us-them binary

Although reformist and abolitionist scholars may oppose the idea of retributive sanctions––commonly associated with the practices of Western legal systems and social institutions––they do not challenge the legitimacy of afflictive sanctions completely (see Carrier, 2022; Carrier & Piché, 2015). Switching the framing of punitive intervention from a focus on punishment toward idealized notions of care does not necessarily equate to a reduction in interventions (see Cohen, 1979; Foucault, 2009; Scull, 1981). Moreso, critical approaches tend to suppose that state sanctions are the elusive source that defines the boundary between people conceived as dangerous and those regarded as respectable citizens (Ignatieff, 1981). However, as long as people perceive wrongdoing, one does not require state authority to raise moral declarations against repudiated subjects.

This case study demonstrates a trend of reformist and abolitionist thought requiring a moment of othering to articulate community. Neither approach necessarily refutes punitive logic entirely. Even critical theorizations, which reject problematic ideologies, maintain a similar form of argument to liberal or conservative approaches. The content is different, but the form is alike. While specifying who a villain is depends on the scholar’s perspective, a villain tends to be assumed.

Associating the idea of crime with social illness recurs in some reformist and abolitionist discourse. Social health and hygiene ideals underpin the grammar of reformist and abolitionist claims. Lombroso (2006) posits crime and criminality as akin to disease, requiring clinical examination and individualized treatment. It is the expertise of the criminologist that is considered essential to diagnose symptomatic individuals and provide intervention. Critical or abolitionist positions suppose collective well-being can be achieved by safeguarding people identified as marginalized against threatening social structures. The critical scholar still holds the yardstick to delineate harm and present more appropriate interventions. A shared assumption across such discourses is that the enclosure of repudiated subjects is necessary for social hygiene.

By delimiting community, reformist and abolitionist discourse runs the risk of severing mutual recognition. At the discursive level, each discourse presumes the dangerous few. It is not ‘me’ that is the issue but ‘them’, an othered subject that scholars prefigure in discourse. To this end, reform and abolition suppose interventions are necessary to ensure safe-keeping relations. Community is presumed threatened by particular social figures. Thus, defence tactics remain tenable to protect social life. An us-them binary is oftentimes the invisible piece which allows these discourses to function. The sacrifice of repudiated subjects seems an inevitable outcome.

It does not help to rely on reformist and abolitionist distinctions to switch the content of discourse around. Whether one supposes a conservative or critical orientation, both positions foreclose the capacity to conceive a non-punitive discourse. Reform and abolition suppose artificial stabilization of social life via their proposed interventions. By conjuring a repudiated subject, this discourse fosters pseudo-commonality. Implementing reformist and abolitionist tactics is supposed to sublimate cohabitation difficulties via the valorisation of collective life. However, this is an impossible ideal. Reform and abolition extend a unitary fiction wherein collective well-being depends on the renunciation of repudiated subjects.

Nietzsche (2002) suggests that a collective (whether conceived as family, community, or the state) indicates people in proximity but not necessarily in common. There is an immoral undertone to the prefiguring of community because this social group is often asserted when a collective is considered threatened. Preservation of this group structure depends on identifying external social dangers. Sacrilege of collective conventions amounts to the rejection of people because they do not resemble collective identity. Accordingly, Nietzsche (2002) contends that community values are extra-moral as they safeguard the hierarchy of a collective at the cost of individual persons. This criticism translates to the issue discernible in some reformist and abolitionist configurations of community. Reformist and abolitionist scholars believe in a collective ideal. A sacred dimension is conferred upon collective life wherein sacrilege of collective sentiments amounts to the reinforcement of a barrier dissociating who is conceived as part of this community and who remains outside it.

It is worth acknowledging that punitive logic is not a natural given in social life. It remains outside social life, in the mental projections and personal feelings experienced in hurtful moments. Nevertheless, punitive logic is realized when people act upon this internal charge, making it socially manifest. The abstraction of the dangerous few has a connection to social life insofar as scholars pair the notion with an actual social group. It exists within reformist and abolitionist discourse as well as social movements, which support the mobilization of intervention for particular people in society.

Conclusion

While reformist and abolitionist thought may be regarded as a way to resolve the difficulties of cohabitation, there is reason to approach these discourses with some caution. Scholars problematize penal practices to the extent that they are perceived ineffective and, often suppose alternative strategies that they regard as more appropriate for community. This article has shown that reformist and abolitionist scholars do not thoroughly refute punitive logic and thus punitive practice. Such approaches are limited by presupposing a repudiated subject and taking the legitimacy to mobilize punitive intervention for granted.

The tension between reformist and abolitionist approaches is an issue of scholars’ interpretation and curation of punitive interventions. In most cases, dispute between these positions and their desired end goals operates at the level of power and social prestige. However, social prestige is incredibly difficult to keep in check: ‘its satisfaction always involves the infringement on someone else’s dignity’ (Weil, 2020, p. 24). The point of this criticism is not to deny experiences of hurt but consider what is required at the discursive level to envisage a discourse of zero-penality. Alternatively, it might be to ask if zero-penality is possible and, if not, what are the implications of this quagmire? To make non-punishment viable, we must deflate the idea of dangerousness. Such a premise necessitates the transcendence of an us-them binary.

To move beyond reformist and abolitionist presumptions of individual culpability or the necessity of self-defence tactics to safeguard collective life, we need to confront the notion of impunity equating to injustice. Weil’s (2020) conceptualization of affliction as inarticulate provides one way to transcend an us-them binarism in discourse. If, following Weil (2020), affliction is evident in the inaudible cry ‘[w]hy am I being hurt’ (p. 29), it is the attention to self-likeness and listening to someone who is hurting––without a trace of self-judgement or social distancing––which offers a mode of relationality that can suspend punitive intervention. In this instance, neither the delimiting of community nor a premise of solidarity is required to refute punitive logic. The point is not to say that hurt is unproblematic. The challenge lies in our capacity to acknowledge the significance of people’s lives without threatening their dignity, even if a person has extended hurt.

Acknowledgement

The authors would like to thank the reviewers and editor for their thoughtful comments and sustained engagement with earlier versions of this manuscript. We believe their constructive criticisms have greatly improved this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).