Common Questions About Criminal Court Reform

We’re taught that crimes are bad things that people do and that we need prosecutors and courts to make sure those bad people are held accountable, but it’s much more complicated than that.

Criminal laws, procedures, and the courts have served as tools to organize society, and to designate some people and some practices as criminal, and therefore not worthy of care, attention, and dignity. We're taught that crime is equivalent to harm, but actually those categories are not the same. Not all crimes are harmful and not all harms are criminalized. People in power have changed categories of what counts as a "crime" over time, not to protect vulnerable people in society as they have claimed, but to advance their own power and property interests and to prevent Black, Indigenous, and other marginalized people and communities from building power and accessing wealth and resources. And when harm is treated as a crime, it exacerbates rather than solves the root causes of the harm.

As Andrea J. Ritchie and Beth E. Richie write, “Criminalization is the social and political process by which society determines which actions or behaviors–and by who–will be punished by the state. At the most basic level, it involves passage and enforcement of criminal laws. While framed as neutral, decisions about what kinds of conduct to punish, how, and how much are very much a choice, guided by existing structures of economic and social inequality based on race, gender, sexuality, disability, and poverty, among others...Criminalization extends beyond laws and policies to more symbolic–and more deeply entrenched–processes of creating categories of people deemed “criminals”...As a result, even as criminal laws change, the same populations continue to be targeted through ongoing practices...The ways in which laws are enforced, policy changes are implemented, and policing takes place require our attention as much–or more–than the letter of the criminal law.”

So, when we talk about “fixing” the criminal punishment system, that assumes it isn’t working the way it should. The system is not broken, but in fact is working exactly as it was designed.

Like policing, the criminal legal system (including criminal law, procedure, and the courts) has been a tool of white supremacy, colonial conquest, and capitalist exploitation since the first European settlers invaded the land now known as the United States of America. It is a system in which Black, Indigenous, poor, LGBTQ, migrant, disabled, and otherwise marginalized people have consistently experienced denial of rights by law and in practice.

Here are just some examples from history about how criminal law and courts have played a role in reproducing social hierarchies. These examples are just a few of many that show the fundamental purpose of the court system is not to protect us or keep us safe. Instead the history of criminal courts and criminal law shows how these institutions have worked to further the (short-term) interests of those in power at the expense of everyone else.

The criminal legal system has consistently been used to set up separate and unequal systems of justice, from the Courts of Indian Offenses that created crimes specific to Indigenous people (for example, banning Indigenous dancing, ceremonies, and cultural practices), to the enforcement of slavery laws and Black codes which, among many injustices, denied Black people the right to testify on their own behalf or serve on juries. After slavery was abolished, criminal courts enforced Jim Crow laws by imposing criminal penalties on people who violated the laws of segregation and by railroading Black people into prison and convict leasing. Courts in the South imposed the death penalty against Black people who were accused of transgressing the color line after show trials that all but guaranteed their execution. Even today, a number of empirical studies show that prosecutors, judges and juries are more likely to sentence Black people to death than white and Hispanic people. As Angela Y. Davis writes, “In the aftermath of slavery, the death penalty was incorporated into the legal system with its overt racism gradually concealed.” Meanwhile, criminal courts have acquitted white supremacists who terrorized Black communities.

Criminal courts enabled Indigenous land theft. A 1823 Supreme Court ruling Johnson v. M’Intosh codified the “doctrine of discovery” into law, deciding that European settlers were the original “discoverers” of the land and thus had exclusive property rights. The ongoing genocide of indigenous people was never seen as murder by colonial courts. Meanwhile white settlers used criminal law to assimilate native communities and to undermine their sovereignty. In the late 19th century, the Court of Indian Offenses criminalized Indigenous cultural practices, including dancing, healing and mourning rituals. Indigenous people were prosecuted for not working to the colonists’ satisfaction.

In the 1920s, the Supreme Court issued a series of anti-labor decisions in response to the growing strength of unions. Lower courts across the country regularly issued injunctions against striking, picketing, and other union activities. The courts also took no legal action against bosses hiring “private security” to brutalize (and sometimes kill) organizers. This legal repression, and lack of protection, contributed to the ultimate decline of organized labor’s power and influence. It also illustrates the choice the courts made in advancing a particular socio-economic and political order that was anti-worker. Into the 1930s and beyond, government bodies at all levels used criminal and immigration laws (specifically the 1940 Smith Act, the 1950 McCarran Act, and the 1952 McCarran-Walter Act) to deport, surveill, and prosecute communists involved in labor organizing, charging them with sedition and treason.

The law and courts have also encoded the hetero-patriarchal domination of women, queer, trans and gender non conforming people, and they have exerted control over people’s sexual and reproductive autonomy. Until the mid-twentieth century, in rape prosecutions involving an unmarried man charged with raping an unmarried woman, the man would be given the choice (usually with no input from the survivor) to avoid punishment if he decided to marry the person he raped. For much of U.S. history, the rape of Black women wasn’t even against the law. In the 1850s, an enslaved Black woman, Celia, killed her master after he raped her repeatedly over the course of many years. The courts declared that because Celia was, under the law, property and not a person, she did not have the right to self-defense and was consequently sentenced to death by hanging. Criminal courts have also enforced bans on cross-dressing and sodomy; and over the past few years, several states have introduced bills, and even successfully passed laws, to criminalize the provision of gender-affirming healthcare for trans youth. In the early 20th Century, states like Oklahoma passed the Habitual Criminal Sterilization Act, which allowed the government to sterilize a person convicted of a crime, because of the pervasive view that “criminality” was hereditary. Although that law was struck down by the U.S. Supreme Court, states such as California currently still prohibit incarcerated people from having children and administer their sterilization under questionable circumstances. This legacy of criminalization continues with states prosecuting people for abortion and sex work, interfering with people’s sexual and reproductive autonomy. In 2021, the Supreme Court allowed an anti-abortion law to go into an effect in Texas, preventing people seeking abortions from getting the healthcare they need.

Through U.S. history and today, police and prosecutors use vagrancy laws to prosecute political dissidents, and people who are intoxicated, leftist, queer or trans simply because they are visible in public space. They have been used aggressively against Black people generally, but especially Black women just for existing in public spaces— for example a Black woman walking home from work at night could be profiled and arrested for “loitering for the purposes of prostitution.” Vagrancy laws do not criminalize conduct, but a status, condition, and ways of life. The laws give the courts the power to suppress and criminalize whatever conduct those in power do not like. 

Whether through “broken windows policing” or just regular policing, poor people are arrested and prosecuted every day due to the criminalization of poverty and houselessness. Despite widespread unemployment and a surging deadly pandemic, the Supreme Court ended the federal eviction moratorium, leaving millions of families across the United States vulnerable to becoming houseless or housing insecure. Things people have to do to survive while being poor are routinely criminalized and people who do not have permanent housing are more exposed to aggressive policing and prosecution. In addition, prosecutors request, and judges set, money bail at amounts people cannot afford so often that the majority of people jailed pretrial are there because they cannot afford to pay for their freedom.

Criminal courts across the country are not accessible for people who do not speak English or for people who are D/deaf or disabled; many often fail to provide adequate language interpreters for people who do not speak English or communication access for D/deaf and disabled people, barring their ability to participate in their own defense and leading to their increased risk of punishment.

It is well documented that racial disparities are embedded in every aspect of the criminal punishment system. Black people are more likely to be arrested, prosecuted, convicted and sentenced to lengthy prison sentences. In 2010, 8% of all adults in the United States had a felony conviction on their record, but among African-American men, the rate was one in three (33%). Black women are incarcerated at twice the rate of white women and Black women aged 18-19 are imprisoned at four times the rate of white women. Nearly 1 in 2 Black trans women report incarceration in their lifetime.

TL:DR - criminal law, procedure, and courts are tools of social control. They are fundamentally white supremacist, patriarchal, ableist, colonial institutions that serve to uphold all forms of oppression. Criminal courts do not prevent or reduce violence, they create and exacerbate it. These are central features of criminal courts, not aberrations. But there are ways that we can intervene in and organize around criminal courts to reduce their harm as we work to eliminate them - learn how people are shifting power inside courts and working to shrink their reach and power by defunding them in the Act Section!

Over the last decade, increasing attention has been paid to the fact that the overwhelming majority (95%) of elected prosecutors are white, and 75% are white men. In the federal judiciary, about 75% of judges are white. It’s true that the criminal punishment system has a diversity problem. However, no matter the identity, or even personal politics, of an individual judge or prosecutor, their systemic function and power remain the same. 

The job of a prosecutor is to charge people with crimes, secure convictions on behalf of the state, and punish people, whether through prison, surveillance, financial penalties, and so on. The job of a judge is to enforce criminal law and criminal procedure. These laws and procedures are not neutral—they harm people accused of crimes, and compound their vulnerabilities and oppression. As we show above, criminal law has historically furthered the interests of white supremacy, colonial conquest, and capitalist exploitation. The rules of criminal procedure disadvantage poor people, people of color, and people who are disabled. Judges also hand out punishment at the end of a case. Prosecution and the judiciary are systemic and structural components of the criminal legal system—the characteristics of the individual people who inhabit these roles cannot change their structural function.

For example, we can look to the few places where Black women have been elected as head prosecutor. During the height of the COVID-19 pandemic, the prosecuting offices of both Kim Foxx in Chicago and Marilyn Mosby in Baltimore (both Black women) fought to keep people incarcerated pretrial in jails that were COVID-19 hotspots. We can also look to the U.S. Vice-President Kamala Harris, who, despite being a Black and Indian woman and daughter of immigrants, as California’s head prosecutor, she made a name for herself prosecuting Black women for truancy, hiding evidence that would exonerate a Black man on death row, and denying relief to Black women who survive domestic violence by defending themselves, like criminalized survivor Liyah Birru.

Abolitionist scholar Dylan Rodriguez warns us to think critically about any diversity effort undertaken within the criminal punishment system: “Diversity Equity Inclusion—their roots are in things that intend to secure and sustain the legitimacy of police power and other forms of oppressive power. [DEI] intends to build legitimacy around already existing institutions and their logics of power. They are not intended to transform those things.”

There are advantages to having people who are aligned with our vision of defunding, divesting and moving beyond criminal courts working inside them - they can provide us with critical information about individual cases, judges, prosecutors, and systems, help identify strategic pressure points, and advocate for the best possible outcomes for people caught up in the system now without legitimizing it. The key is to be working toward shrinking and divesting from criminal courts, not legitimizing them as places where "justice" can be done or found.

If procedural reforms were passed that ensured accused people had access to a trial without delay (speedy trial reform) or that the accused person had complete and immediate access to all of the prosecution’s evidence against them (open and early discovery), this might lead to better case outcomes for some accused people. However, most accused people have done the thing they are accused of, so access to a speedy trial or evidence quickly doesn’t lead to their exoneration or prevent their incarceration, it just ensures they are sentenced more swiftly, and in ways that seem more fair.

Procedural reforms are both important - in places that genuinely do not have the relief sought, like jurisdictions that don't have speedy trial laws, or evidence laws, or right to a bail hearing within a timely fashion, or right to an attorney paid for by the state - and they also are a red herring.  Because while they are important to have, they are also easily circumvented by prosecuting offices and judges, they necesitate new funding streams to system stakeholders in order to ensure they can be exercised, and they further entrench in our consciousness that it is possible to wring justice out of this system.

It is possible to organize for procedural reforms within an abolitionist framework - this resource, for example, provides a close examination of abolitionist versus reformist bail reform efforts. We are not saying that you should not fight for procedural reforms, but as you evaluate where to invest your organizing energy, be aware of the traps of reformist reforms which entrench the power and legitimacy of the criminal punishment system. 

Prosecutors do have a disproportionate amount of power in the criminal punishment system. Their power ensures the system continues to run according to the status quo: securing convictions and delivering punishment. They have wide discretion to decide whether to prosecute someone at all, which charges to file, whether to request money bail and how much, and whether to offer a plea deal. For this reason, the strategy of electing “progressive prosecutors,” i.e. prosecutors who campaign on a platform of reforms, have been enticing to funders, academics, advocates, as well as organizers looking to end mass incarceration and criminalization. However, while they have considerable power to uphold the system, prosecutors do not have the same amount of power to dismantle it because their core function is to put people in cages or under criminal court control. The most sweeping thing any prosecutor could do to actually “end mass incarceration” would be to refuse to charge anyone at all—but to do that would be career suicide and even the most celebrated “progressive prosecutors” are very clear they plan to continue prosecuting.

Additionally, too often, when organizers have invested energy in electing a particular reform-minded prosecutor, they have seen the power of the prosecutor’s office grow, rather than shrink. Look no further than the budget increase requests from two of the most nationally celebrated “progressive prosecutors”: DA Larry Krasner in Philadelphia and DA Marilyn Mosby in Baltimore, who partly made the case for more funding in order to implement so-called reforms. Many also perpetuate the same racist, fear-mongering messaging as tough-on-crime prosecutors and use their platforms to malign grassroots movements trying to do the very things these prosecutors campaigned on (ending money bail, for example). Indeed, if we look at the track record of so-called “progressive prosecutors,” it is evident that when “progressive prosecutors” engage in reforms, they tend to preserve the legitimacy of prosecution and policing, and to increase the prosecuting office’s power and resources. This expansion of the prosecuting office remains no matter who the next elected prosecutor is, and who could very easily be a more conservative, tough-on-crime district attorney.

Certain “progressive prosecutors'' who campaigned on platforms to end, or reduce, money bail, did not actually follow through once elected. Philadelphia DA Larry Krasner campaigned on a promise to end prosecutor requests for money bail, yet even in the midst of the COVD-19 pandemic, his office regularly requested million dollar bails (over 50% of the time). Even San Francisco DA Chesa Boudin, who did institute a policy to prevent line district attorneys from requesting money bail, increased pretrial supervision requirements, including electronic monitoring, in lieu of money bail, still expanding the system’s overall control over people’s lives.

From an abolitionist perspective, no matter the politics of the person in charge of the office, prosecution is a systemic component of the criminal punishment system. Prosecuting offices are charged with distributing punishment in an unequal and violent society—they are not our co-strugglers, but rather targets to reduce budgets, power, reach, and legitimacy of the criminal punishment system.

To read more about progressive prosecutors, check out our resource “No Such Thing as “Progressive Prosecutors” in a Guilty System”

In our current criminal punishment system, there are already exceptional prosecutions of individual white supremacists, murderous cops, or billionaire robber barons—they serve as acceptable sacrifices of the system’s own foot soldiers to maintain the status quo, as part of an attempt to quell unrest and solidify the legitimacy of the system. The few prosecutions of the “real bad guys” gives the impression that the system is addressing the underlying violence of policing, white supremacy, or capitalism, without actually doing so. It individualizes what are systemic problems.

We also know that when new laws are created to supposedly protect marginalized groups, they end up being primarily used to target them. For example, laws which criminalize tax evasion and financial offenses are more often leveraged against poor people than billionaires or corporations. For example, the IRS audits low-income beneficiaries of the earned income tax credit at twice the rate as it audits corporations. And “hate crime” laws are more often used against LGBTQ people and people of color than in their favor. A 19-year-old woman in Utah was charged with a hate crime against a police officer for stomping on a “Back the Blue” sign. As the Utah ACLU chapter stated in an interview with NPR, “We consistently warn that [hate crime] enhancements are oftentimes used to single out unpopular groups or messages rather than provide protections for marginalized communities. This case has confirmed those warnings." In August 2021, the Nassau County legislature in New York made police officers and other first responders a protected class under the county’s Human Rights Law.

In recent years when prosecutors have filed hate crime charges against people who committed horrific acts of white supremacist violence, like Dylan Roof and Robert Aaron Long, they have also asked for the death penalty. In the name of condemning one atrocity, the state tries to commit another. Abolitionists refuse to combat violence with more violence. Instead we look for solutions grounded in common sense and the dignity of all involved. Additionally, arguing to send all the horribly, violent white supremacists to existing prisons and jails just means shifting the harm of that racist violence from Black and brown folks outside to Black and brown folks inside jails and prisons, where they have fewer options to protect themselves.

While rare exceptions exist, it is unlikely that we will ever see mass prosecutions of people in power for whom the system was created to protect. The criminal punishment system will not dismantle itself through prosecutions.

As Andrea Ritchie and Mariame Kaba remind us, “Focusing on arrests leaves the whole system intact.” Calling for justice in the form of prosecuting the “bad guys” only serves to legitimize and further entrench the system, further perpetuating the criminalization, prosecution, and incarceration of poor people and people of color. Abolition is fundamentally opposed to prosecution, and we must look outside the criminal punishment system for accountability and healing.

For instance, check out the struggle for reparations for survivors of police violence in Chicago, and the many options for transformation and healing gathered at transformharm.org.

Increasing opportunities to access treatment programs—whether for drugs, alcohol, mental health, or anger management—can greatly benefit people, families, and communities if the programs are voluntary, affordable, and flexible for a person’s recovery process. However, requiring that someone participate in a program as part of their court case—especially if it is offered in lieu of going to jail—is coercive, manipulative, and violent.

These programs are presented as alternatives to incarceration, however they often serve as direct pathways to jail or prison. When dealing with drug or alcohol addiction, relapse is a natural part of the recovery process. Nevertheless, failing to complete a court-mandated program comes with the threat of incarceration or heavier sanctions.

The programs themselves, even if people are able to complete them successfully, also mirror carceral dynamics through intensive supervision and surveillance outside of prison walls. All under the guise of offering “help,” “support” or “treatment”, these court-mandated programs are just another form of social control.    

Treatment-based diversion programs also require individuals to prove they are sufficiently and appropriately “ill” to deserve treatment. These programs require someone to have a diagnosis under Diagnostic Statistical Manual V (DSM-V) to receive treatment. The DSM-V is the manual doctors use to diagnose someone with a mental disorder or illness. And yet, these programs will not accept people if they have certain diagnoses that are deemed “untreatable.” Treatment programs are so severely understaffed and under-resourced that they can justify denying some people access to care who are deemed “too difficult.”

Court-based treatment programs tend to adopt a biological model of disease that sees disability as a deficit, and one which is rooted in the individual’s biology and development. This framework is inherently racist and sexist, and has historically been used to lock people up. By contrast, disability justice activists and disabled people have articulated disability as the product of an environment that makes the world inaccessible and unlivable for certain people. The emphasis in court-mandated treatment programs is for the person to “get better” at managing their disability. There is little to no attention paid to how to make the world more accessible for them to thrive. In the end, court-based diversion programs can have the impact of perpetuating oppression and discrimination based on disability.

Additionally, the idea of arrest and prosecution as a “gateway” to services actually serves to gatekeep services, ensuring that criminalization is the only way to access treatment or services, unless you have the money and resources to access them voluntarily (and consequently without the surveillance and threat of incarceration that comes with court-mandated treatment programs). This not only reproduces and entrenches inequalities, but also guarantees that more resources are invested into the criminal punishment system in order to provide these programs.

Instead of arresting people in order to “help” them, we could offer robust, voluntary, affordable, community-based supportive services and resources, ranging from harm reduction offerings to treatment programs to counseling, and therapy to medical clinics. These kinds of community-based interventions would do more to support the thriving of people and communities than any punitive, court-mandated treatment program.

Campaigns to defund and divest from policing are often connected to efforts to build programs like these - learn more at defundpolice.org and join in efforts near you. Check out the "Problem-Creating Courts" resource for key talking points on how to push back on diversion programs and fight for community-based, life-giving resources instead. 

Civil laws cover everything from traffic violations to violations of financial regulations, and civil courts include traffic court, family court, bankruptcy courts and more. In a criminal case, the legal penalty can be limitations on a person’s freedom (through incarceration or surveillance) and a criminal record, while in a civil case, the potential legal penalty is usually in the form of monetary sanctions. When an offense is converted from a criminal offense to a civil offense it tends to mean that a person cannot be incarcerated or arrested, at least initially, for violating the law. Instead, the person will face a fine. However, turning criminal charges into civil violations is not the cure-all many romanticize it to be.

Even without the threat of incarceration, civil court can result in harsh and devastating punishments. Poor people generally experience worse outcomes in civil court. Financial penalties are a heavy burden for anyone, especially those who do not have disposable income and they can lead to overwhelming, unpayable debt. The failure to pay government-imposed fines is reflected on your credit score and can limit your freedom to rent, obtain employment, keep your children, and more. Responding to a civil violation still requires an individual to take time off work, school or other commitments to attend court, leading to lost income, employment and opportunity. Failing to appear for civil court dates can result in a criminal arrest warrant and potential incarceration. Additionally, you are not guaranteed a lawyer in civil court and must pay steep legal fees in order to be represented and have a chance at winning your case.

Often when civil violations are instituted as a replacement for criminal offenses, police officers still have the discretion to choose whether to issue civil summons or effect arrests for the same offenses. This is the case after the New York City Council passed the Criminal Justice Reform Act of 2016, which created civil violations for some of the top “low-level” offenses that resulted in criminal arrests (such as public consumption of alcohol, littering, and public urination). When such discretion is retained by law enforcement, we know the results will be anti-Black and discriminatory. Indeed, data analyzed one year post-implementation of the legislation found that officers disproportionately continued to issue criminal summons to Black people. As steps towards abolition, we must fight for full decriminalization, as well as to limit police discretion to make arrests.

It’s important to remember that even under the guise of civil law, people can still be deprived of their liberty and experience punishment, regardless of the state’s purported reason for doing so. From the 1930s through the 1950s, the U.S. institutionalized (i.e. jailed) more people in asylums, hospitals, and institutions than it would ever cage in prisons. Civil law gave the state the power to label a person with a disability as a “mental defective,” “mentally retarded,” “epileptic” or “psychopathic” and to then warehouse them in segregated facilities notorious for abuse. In 1946, the US institutionalized a rate of 700 people per 1000 (at the height of mass incarceration, the US imprisoned at a rate of 600 people per 1000). Today, people with disabilities continue to face the risk of detention, institutionalization, and punishment under civil law. For example, under what is known as civil commitment, people with disabilities can be stripped of their legal rights, detained and forcibly medicated because they are deemed to be unfit to care for themselves and a risk to others. Civil commitment is sometimes indefinite and has even fewer protections than in criminal courts. Just because something is civil does not mean it does not deprive someone of their freedom and autonomy.

Finally, some cases that start in civil court can end up in criminal court and leave people at risk of incarceration in jail or prison. For instance, if you violate a judge’s order to pay a fine or stop doing something in a civil case, the judge can charge you with the crime of “contempt of court.” Unless we end the possibility of incarceration or surveillance as an outcome (i.e. through abolishing the prison industrial complex more broadly), no matter where a case begins, it can result in criminal charges, a criminal record, and the limitation of freedom.

Civil court is not a solution. In fact, the structural inequalities that shape our society will only remain entrenched and may even be bolstered by simply replacing criminal cases with civil cases. Instead of looking for a replacement, we must fight to eliminate criminal penalties entirely—i.e. complete decriminalization—and focus efforts on investing in the resources communities need to live well and be safe. 

You can gather information in support of campaigns for decriminalization by gathering data from courts and stories from people ensnared in them about who is criminalized, why and what they needed!

Removing the power to incarcerate is good, however monetary sanctions are not a just or equitable alternative. Fines (as well as fees and other court costs) only enrich the system we are working to dismantle.

Monetary penalties are already widely used in the criminal punishment system. Instead of raising taxes for the rich and politically influential, fees, fines, and court costs—which largely impact the poor and people of color who are hyper-policed and prosecuted—become a way to fund public infrastructure in cities and counties across the country. After the police murder of Michael Brown in Ferguson, Missouri in 2014, it became widely known that fees and court fines, extracted from the working poor, are a major source of revenue for local governments.

And the reality is that most people who are saddled with monetary sanctions cannot afford it. This is why the total amount of national court debt in the United States is at least $27.6 billion. The inability to pay fees and fines often results in incarceration and leaves people trapped in debt to the criminal punishment system. Despite being technically unconstitutional, debtors' prisons are alive and well in the US.

As history has shown us, substituting jail or prison sentences with fines, for most people, will just result in incarceration, the heavy weight of debt, and furthering poverty and precarity.

The cases being prosecuted in criminal courts across the country reflect patterns of policing, not harm that is happening in our communities.

Policing and prosecution do not protect public safety or survivors of violence. In fact, 70 percent of survivors of sexual, domestic, and gender-based violence choose to not call the police or pursue criminal charges at all. Any reliance on criminal prosecutions leaves the majority of survivors behind. Of the cases that are reported, less than 1% are actually prosecuted, and even fewer result in convictions. In fact, only about 6% of people who commit rape will ever serve a single day in jail, and only around 0.7% of rapes end in a felony conviction. And these statistics were recorded after every state in the country expanded policing and prosecutions and implemented laws and policies that were sold as ensuring a criminal punishment solution to gender-based violence (for example, mandatory arrest laws, special units within prosecutors' offices for survivors of gender-based violence). Given how well resourced carceral interventions are, these statistics reveal survivors’ justifiable aversion to the criminal legal system for protection or accountability, and the blatant failure of the system to deliver on either.

When survivors of violence do call the police for help, the person accused of doing harm can be prosecuted whether the survivor wants it or not. Remember, the prosecution prosecutes on behalf of the state, not on behalf of the survivor. The court process is not in service of the survivor and the survivors themselves are often re-traumatized through having to relive the harm and by being forced or coerced by the state to testify against their will. Once the case is in the hands of the prosecuting office, survivors usually do not have any role in determining what accountability or repair looks like beyond a conviction.

Additionally, many survivors of sexual, domestic, or gender-based violence are themselves criminalized, prosecuted and incarcerated. This is often because their survival strategies—whether being coerced into criminal activity by their abusers or acting in self defense to protect themselves or their children—are criminalized. Mandatory arrest policies have increased criminalization and arrests of survivors, particularly survivors of color and LGBTQ survivors. Nearly 60% of people in women’s prison nationwide, and as many as 94% of people in some women’s prisons, have a history of physical or sexual abuse before being incarcerated. For those who survive abuse, the criminal legal system, and specifically the court process, serve as the next abuser through aggressive character assassinations, monitoring their movement and phone calls, shackling, and invasive strip searches, creating an environment of punishment and fear.

If we want to protect victims of domestic, sexual, and gender-based violence, we can and must do so outside of the criminal punishment system. We can start with providing immediate financial, housing, and healthcare assistance, increasing funding to non-carceral, community-based domestic and gender-based violence service providers, and creating community-based options for safety and accountability that do not rely on the police or punishment system.

It’s true that public defenders are widely under-resourced and that this lack of funding affects the quality of the defense for the people they represent. As long as we have the current criminal punishment system, we should be funding public defense lawyers so they have the resources and capacity to vigorously defend people being prosecuted.

However, more funding for public defense lawyers will not change how the criminal legal system is systematically designed and constructed to disadvantage the defense. Even the most resourced, trained, and skilled defense lawyers are working in a system that favors the prosecution at every step of the case. 

A recent study shows that while holistic defense—representation that focuses not only on the criminal case but also on its collateral consequences—can shave off time in prison and jail for accused people, it had no impact on conviction rates. Better representation has rarely proven sufficient to counteract prosecutors’ work to punish.

We can invite public defenders into our efforts to decriminalize, defund and divest from criminal courts - and lend our support to their organizing efforts to secure better outcomes for their clients on an individual and systemic level! Check out the resources on participatory defense and defunding courts.

It is true that courts are often dingy, dark, and scary, and that adjudicative processes rely on opacity and inscrutability to entrench prosecutorial power.  Anyone who has tried to advocate for themselves or a loved one in criminal court is familiar with the barriers excluding the public from courtroom processes. These include physical barriers that exclude people from entering courtrooms via police force; technological barriers such as restricted video feeds that limit access to proceedings; financial barriers such as fees to access records; linguistic barriers such as poor or nonexistent interpretation services; operational barriers that conceal decision-making algorithms like risk assessment tools in a black box; data barriers including the dispersal of public information in various, disorganized formats across a chaotic array of overlapping agencies; and more. Such barriers, by design, shield state actors from scrutiny and accountability. Overcoming them and thereby demystifying courtroom processes is a necessary first step for anyone challenging criminalization.

However, making courtroom processes more transparent, accessible, and easier to understand does not fundamentally alter the unjust distribution of power at the core of the system. There are at least three reasons why abolitionist advocates should treat calls for transparency and accessibility with skepticism.

First, when advocates demand redress for injustices in the criminal punishment system (draconian sentencing, mass imposition of carceral debt, pervasive brutality), an easy first response from politicians is to agree on data efforts as a first step towards positive change: “we need a better picture of the problem, so let’s invest in data.” Lack of data, however, is almost never the real problem. Indeed, this kind of response shows an implicit disregard for the knowledge that people gain through actual experiences with the system, as opposed to top-down data collection.

Second, efforts to improve “data transparency” can actually expand and streamline systems of data criminalization (defined as digitized, automated surveillance used formally and extra-legally for purposes of social control). In recent decades, a new regime of carceral power has emerged, with a huge quantitative increase in data aggregation by corporations and governments feeding into a qualitative shift in the mechanisms of criminal punishment, characterized paradigmatically by “risk assessment” tools. The process of cleaning up, integrating, and digitizing court records to achieve “transparency” can accelerate these dangerous developments. In this way, calls for transparency may operate at cross purposes with abolitionist demands for less, not more, data collection — or, better yet, for outright data deletion!

Finally, it is worth asking: how friendly and accessible can courtrooms really become? At the end of the day, the purpose of these spaces is to restrict people’s freedom, with judges and prosecutors relying on armed marshals to enforce the captivity of incarcerated defendants at the point of a gun. Advocates interested in reforming the spatial dynamics of criminal courts should look to non-reformist models such as Youth Justice Coalition’s “Chuco’s Justice Center,” which re-purposed a juvenile court and holding facility into a community center and school. That is to say, the only truly liberatory reform that can be applied to courtroom design is to turn courts (which often occupy central urban locations) into something else entirely, like schools, parks, museums, or community centers.

Now we’re talking! These are reforms we can get behind. Each of these reforms shrink the size, scope, resources of the prison industrial complex. They will not transform the system in and of themselves, but they reduce the system’s power and potential to harm without re-legitimizing or expanding the system’s scope. We can build our movement’s power, and chip away at the power of the criminal punishment system, through organizing for these intermediate steps on the road to abolition. Many abolitionists refer to these kinds of reforms as “non-reformist reforms” (or “abolitionist steps”), as long as they are also accompanied by a growth in power for prison industrial complex (PIC)  abolitionist movements.

More resources on this subject that might interest you:

• No Such Thing as "Progressive Prosecutors" In A Guilty System
• Abolitionist principles & campaign strategies for prosecutor organizing
• Defund courts and the costs of courts

Just because we want to abolish criminal courts (and the entire prison industrial complex) does not mean that we want chaos or unfettered violence. We want to live in a world where less harm happens and in the instances when it does, people who have harmed are able to take accountability and endure consequences and people who are harmed are able to find healing. We believe this is impossible inside the current system and entirely possible outside the criminal punishment system—transformative and restorative justice practitioners across the world are already (and have been for centuries) experimenting with local, community-based interventions. Instead of purporting to address (while actually both causing and containing) social problems—such as poverty, homelessness, mental health crises, drug/substance use and addiction, and so on—with criminalization, our society could address these issues at their root and provide people and communities with the resources they need to live well and thrive—including, but not limited to, health care, housing, living wages, access to clean water and food, and more.

A central goal of PIC abolitionists is to reduce violence and harm, and we understand the criminal punishment system (including cops, courts, and cages) as primary purveyors of harm.

The behaviors defined as crimes—also known as criminal law—and its enforcement mechanisms—police and the courts—were created (and continue to be created) in the context of an unequal and violent society, and they were designed (and continue) to serve the interests of people with structural power along lines of race, wealth, gender, ability, and so on. Abolitionists are highly suspicious of both the law and its various enforcement mechanisms, which are not neutral and have been used as tools of intersectional forms of domination. Fundamentally, as abolitionists, we want people to pay attention to how calling something a crime serves as a way to order and control particular people in society.

For most of human history, we have lived without prisons, policing, criminal law, procedure, and the courts as they exist today. We believe we can build a future without them, too.