Penal Abolitionism

Someone steals your bike. You report it, you give a statement, and months later a stranger is tried in a courtroom where nobody asks what you needed: to get it back, to understand why, to make sure it never happened again. The prosecutor speaks for the state, the defense attorney for the accused, the judge for the law. You are, at most, a witness in your own case. Penal abolitionism starts from that scene to ask criminology's most radical question: what if the problem were not crime, but the system that manages it?

// OriginOslo and Rotterdam: three voices against punishment

It was born in northern Europe as activism before it was theory. In 1968 the Norwegian sociologist Thomas Mathiesen cofounded KROM in Oslo, an association for penal reform that brought academics and prisoners to the same table, and out of that experience came The Politics of Abolition (1974): abolish, don't reform. His fellow Norwegian Nils Christie gave it a doctrine. In “Conflicts as Property” (1977) he argued that the penal system steals conflicts from the people who live them; in Limits to Pain (1981) he called punishment by its name, the deliberate infliction of pain, and asked for societies that need to inflict less of it, not for better ways of doing so.

The Dutchman Louk Hulsman, a professor of criminal law in Rotterdam after years at the Ministry of Justice, carried the critique into language itself. In Peines perdues (1982), a book of conversations with Jacqueline Bernat de Celis, he denied that “crime” has any reality of its own: nothing links a shoplifting, a bar fight and tax fraud except the drawer the law files them in. He proposed speaking of problematic situations, which can be read in many ways (a debt to settle, a health issue, a misunderstanding to mediate), and of which punishment is only one reading, often the worst.

// The dilemmaAbolish or reduce: Mathiesen's unfinished

Mathiesen knew the penal system digests its critics well: a cleaner prison or a new treatment program can end up legitimizing the institution and expanding it. So he backed only the reforms that take ground away from it (closing, decriminalizing, getting people out) and refused to sketch the complete alternative society, which would end up absorbed by the order it meant to replace. His abolition had to remain the unfinished, a sustained “no” that advances through small victories. Norway granted him some: youth prison and forced labor were abolished, and incarceration fell.

Christie ended up at the other pole. In A Suitable Amount of Crime (2004) he conceded that abolishing the penal institution entirely was beyond the reach of industrial societies and defended penal minimalism: punishment as one response among several, the last and the scarcest. The two positions share the diagnosis; they disagree on whether penal pain can ever reach zero.

// In fictionThe owners of other people's conflicts

Javert is abolitionism told from the inside. He is neither corrupt nor sadistic: he is the system working by its rules, hunting a man for decades over a stolen loaf and a broken parole while nobody asks what harm is left to repair. Judge Dredd takes the expropriation to its limit: he arrests, sentences and executes on the sidewalk, and the parties vanish. Alex embodies what Christie warned against, refining the method: with the Ludovico technique the state does not stop inflicting pain, it just renames it a cure.

The Count of Monte Cristo holds both the thesis and its objection. Crown prosecutor, the crown prosecutor, buries an innocent man in the Château d'If to save his career: the conflict never reaches a courtroom, a case file buries it. And el Conde de Montecristo, with no forum in which to press his claim, takes it back himself after fourteen years of confinement, turned into a revenge that reaches innocent people. That is what the critics fear: a conflict handed back to the parties without rules can return as private retaliation.

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Inspector Javert

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The Count of Monte Cristo · Literature

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Judge Dredd · Comics

Judge Dredd

From the inspector who chases a loaf of bread to the count who collects the debt by his own hand: five ways to take a conflict from its owners, or to take it back badly. Tap to open their case file.

// Prison todayThe prison that does not correct

The evidence supports part of the diagnosis. The review by Daniel Nagin, Francis Cullen and Cheryl Lero Jonson (2009) concluded that, compared with noncustodial sentences, prison has a null or mildly criminogenic effect on reoffending. That does not prove prison can be abolished, but it does show that locking people up corrects less than it promises. And Christie's idea lives on in restorative justice, though almost always inside the system he wanted to dismantle.

// The flawThe murderer who is not a “problematic situation”

The flaw opens up in the face of serious violence. Calling a broken window a “problematic situation” works; calling a rape, or a killer who will kill again, one does not. Handing the conflict back to the parties assumes they stand on equal footing, and in domestic violence or extortion it goes straight back to the stronger one. Someone has to restrain the dangerous, and that someone looks a great deal like a penal system. Hence the way out proposed by Luigi Ferrajoli in Diritto e ragione (1989): a minimal criminal law, bound by strict guarantees and justified only as the lesser evil compared with private vengeance and informal punishments, which are more arbitrary.

// Why it mattersAsking what the pain is for

Hardly anyone signs up for the full program, but abolitionism shifted the burden of proof: it is no longer enough to ask what punishment each crime deserves; one has to justify why inflicting pain on someone will fix anything. From there come alternatives to prison, mediation and the idea that victims have something to say in their own case. And a test for any reform: does it get people out of the system, or just offer them a more comfortable cell?