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Beyond the Era of Punitive Excess

Reckoning with our overreliance on excessive punishment requires a commitment to truth-telling.

  • Jeremy Travis
  • Bruce Western
April 5, 2022
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system

How does the era of punit­ive excess come to an end?

In Decem­ber, the city coun­cil of Char­lottes­ville, Virginia, voted unan­im­ously to donate the city’s statue of Confed­er­ate war leader Robert E. Lee to the Jeffer­son School African Amer­ican Herit­age Center, which proposed to melt it down and use the bronze to create “a new work of art that will reflect racial justice and inclu­sion.” The center’s proposal was called “Swords into Plow­shares.” Accord­ing to Andrea Douglas, exec­ut­ive director of the center, “We’re taking some­thing that was harm­ful, taking some­thing that was the source of trauma, and trans­form­ing it into some­thing that is more respect­ive of the demo­cratic, community space.”

If mass incar­cer­a­tion is the bronze statue of punit­ive excess, it should now be melted down and trans­formed. What has been trau­matic and pain­ful should be replaced with a new vision of justice that promotes community well-being, not oppres­sion, and celeb­rates demo­cracy, not racial domin­a­tion. 

The era of punit­ive excess docu­mented in the Bren­nan Center’s collec­tion of essays repres­ents the latest chapter in a long history of white suprem­acy and economic injustice, and it consti­tutes a multi-count indict­ment against the system of crim­inal laws created in its wake. To turn the page on this chapter, we propose an honest reck­on­ing with the harms of punit­ive excess.

Reck­on­ing requires a commit­ment to truth-telling, begin­ning with the tangle of fictions that stand in the way of change: Punish­ment keeps us safe, justice is found in courtrooms, conflicts are best resolved through an adversarial process, harmed parties need retri­bu­tion, pris­ons are places for rehab­il­it­a­tion, punish­ment ends once one leaves prison, the wealthy and the poor receive equal treat­ment under the law. Perhaps fore­most among the fictions of justice is the notion that monu­mental racial dispar­it­ies were neces­sit­ated by patterns of crime and deman­ded by communit­ies of color. A reck­on­ing is needed to set the record straight.

Our idea of a reck­on­ing has three key parts. 

First, a reck­on­ing is a histor­ical project that confronts decades of penal harm that punc­tu­ated centur­ies of struc­tural racism. History reveals how insti­tu­tions that are charged with the task of safety have oper­ated as instru­ments of control and isol­a­tion. History explains why the demo­graphic contours of mass crim­in­al­iz­a­tion and incar­cer­a­tion align so neatly with racial exclu­sion and extreme poverty. The history of slave patrols, convict labor, Black codes, the terror­ism of lynch­ing, the viol­ent suppres­sion of Black polit­ical power after Recon­struc­tion, the role of police and courts in enfor­cing white suprem­acy — under­stand­ing the history of all these offenses against Amer­ica’s Black communit­ies can propel the demand for a new vision of justice that empowers them.

Second, a reck­on­ing is not just a histor­ical reflec­tion. An honest reck­on­ing will also drive a differ­ent kind of polit­ical dynamic, one in which community repres­ent­at­ives have a cent­ral role. Powered by communit­ies that have suffered at the hands of punit­ive excess, a reck­on­ing process can disrupt the status quo and chal­lenge estab­lished polit­ical norms. We have already glimpsed the propuls­ive force of histor­ical reck­on­ing in the work of community move­ments to close jails, reform bail, forgive court debt, and elim­in­ate stop and frisk in juris­dic­tions around the coun­try. By artic­u­lat­ing how the current crim­inal justice ortho­doxy has weakened demo­cratic ideals, deepened poverty and racism, and damaged indi­vidu­als and communit­ies, reck­on­ing fore­shad­ows a funda­ment­ally differ­ent vision of justice. The recount­ing of historic harms will lend urgency to community demands for the real­iz­a­tion of this new vision. We hope that the truth-telling and power-shar­ing that reck­on­ing entails will promote engage­ment over estrange­ment, activ­ism over alien­a­tion. The fertile ground of community conver­sa­tion has the poten­tial to encour­age a new gener­a­tion of lead­er­ship, steeled to sustain the move­ment from vision to real­ity.

Third, a reck­on­ing must also engage the public offi­cials who have driven the justice jugger­naut. They should be enlis­ted in the work of funda­mental change, in part because of the harm that they and their prede­cessors have caused. Truth-telling should provide community repres­ent­at­ives with the chance to confront author­it­ies with a direct account of the harm they’ve suffered and their plans for remedi­ation. Police abuse, gratu­it­ously long sentences, the indig­nity of solit­ary confine­ment, and the unpay­able burden of fines and fees all deserve an account­ing from the public offi­cials who design and staff the system. The myth that safety is rooted in punish­ment can be power­fully exposed if community members speak to how count­less police stops, arrests, and incar­cer­a­tions have put them at risk. Public offi­cials must also be engaged for the prag­matic reason that they sit squarely in the vanguard of iner­tia and resist­ance. A truth-telling process that invites their parti­cip­a­tion will provide oppor­tun­it­ies for some offi­cials to become cham­pi­ons for change. In a struggle for funda­mental trans­form­a­tion, the voice of the convert has zeal and unique cred­ib­il­ity.

In its most success­ful version, a reck­on­ing opens the window for policies that disrupt the logic of punit­ive excess. Communit­ies them­selves would have a much stronger hand in design­ing how and for whom safety is achieved. The pursuit of justice would draw upon community strengths to advance the goals of heal­ing and forgive­ness. The account­ab­il­ity of public offi­cials would reflect a commit­ment to trans­par­ency and civil­ian author­ity. Sanc­tions for those community members who harm others would show unwaver­ing respect for their value and dignity and be propor­tion­ate to the harm they’ve commit­ted.

Disrupt­ing the logic of punit­ive excess by reck­on­ing with the legacy of white suprem­acy is as much a process as it is an outcome. A sustained dialogue that is steeped in history, led by the voice of impacted communit­ies, and confronts offi­cials with the harms they have caused or perpetu­ated will some­times be halt­ing, and often frus­trat­ing. But, we hope, such a process can enable funda­mental change by shar­ing power and broad­en­ing the coali­tion for change. Such a process compels a new polit­ics of justice.

A reck­on­ing will neces­sar­ily probe the signi­fic­ant trauma and harm caused by the agen­cies of the justice system, harms so power­fully detailed in this series of essays. Beyond enumer­at­ing these harms, an honest reck­on­ing will also ask whether the police and penal insti­tu­tions that claim respons­ib­il­ity for safety have actu­ally provided it. This is espe­cially import­ant today, when gun viol­ence and homicide are on the rise. At a time when we see the fail­ure of punit­ive excess clearly, the upward trend in crime some­how nour­ishes the status quo. A reck­on­ing with history will reveal the para­dox that reli­ance on police and pris­ons has yiel­ded signi­fic­ant trauma and harm, and the prom­ise of safety and community well-being remains elusive. We must settle accounts with history in order to create a differ­ent kind of safety that answers the threat of viol­ence, makes communit­ies stronger, and advances a new vision of justice.

Skep­tics will say that this utopian vision of justice is unat­tain­able in Amer­ica. We under­stand the many polit­ical forces arrayed against such a vision. A racist and author­it­arian ideo­logy is deeply embed­ded in our justice system. A large portion of the public views tough-on-crime policies as effect­ive answers to crime and disorder. The justice jugger­naut is sustained by power­ful economic interests and entrenched career incent­ives. Community resid­ents who strive for public safety also regu­larly turn to police and pris­ons for help — but this reflex itself arises in a context where resid­ents often have few altern­at­ives to choose from. We believe that by empower­ing the voices of communit­ies exper­i­en­cing harm, mobil­iz­ing coali­tions to influ­ence public policy, and telling the truth about punit­ive excess, a reck­on­ing process can counter the forces of oppos­i­tion. 

We recog­nize that the road to dismant­ling systems of injustice is long and that progress is not linear. We also believe that dismant­ling the sturdy archi­tec­ture of punit­ive excess will require more than marginal reforms. The statue must be taken off its pedes­tal, melted down, and recast as some­thing new.

History teaches us that a reck­on­ing with history happens only rarely, and then often in the context of pain­ful regime change, such as a defeat in war, a polit­ical revolu­tion, or accu­mu­lated moral outrage. One need only consider the history of the Truth and Recon­cili­ation Commis­sion in post-apartheid South Africa, the estab­lish­ment of a demo­cratic Germany follow­ing the horrors of the Holo­caust and the revel­a­tions of the Nurem­berg trials, or Amer­ica’s own brief exper­i­ment with racially inclus­ive demo­cracy in Recon­struc­tion before it was destroyed by a century of resur­gent white suprem­acy. These and other examples of nations coming to terms with their histor­ical injustices under­score the complex­ity — and neces­sity — of a process of reck­on­ing as a precon­di­tion for a new kind of justice. 

A reck­on­ing does not determ­ine precisely how the swords of punit­ive excess are beaten into the plow­shares of community empower­ment, but we hope it creates a space for such a polit­ical process to begin. This process embod­ies the values of dignity, demo­cracy, and truth-telling. It actively pursues the prom­ise of a multi-racial demo­cracy. These values, when infused into a polit­ical dialogue, have the trans­form­at­ive power to eclipse the era of punit­ive excess.

Jeremy Travis is exec­ut­ive vice pres­id­ent of crim­inal justice at Arnold Ventures. Bruce West­ern is a professor of soci­ology at Columbia Univer­sity and director of the Columbia Justice Lab. They are cofounders of the Square One Project at the Columbia Justice Lab. The views expressed here are not neces­sar­ily those of Arnold Ventures.