Criminal Procedure in a Time of Abolition

Abstract

As the ranks of prison industrial complex abolitionists grow, the question of whether, and if so how, they should engage with criminal procedure doctrine becomes ever more pressing. This Essay engages Devon W. Carbado’s Unreasonable: Black Lives, Police Power, and the Fourth Amendment’s interrogation of whether to “blame” Chief Justice Warren for the expansion of the carceral state brought on by his opinion in Terry v. Ohio to begin exploring that question. It argues that while a laser-like focus on doctrine betrays an individual-focused theory of change that is likely to be both ineffective and anathema to abolitionist praxis, abolitionists should not abandon doctrine entirely. Instead, they might engage with doctrine in two ways. First, they might seek to optimize doctrine’s ability to be a tool of harm reduction for those currently affected by the criminal legal system. Second, doctrine might serve as a tool for experimentation that advances abolitionist world- building. Ultimately, this Essay argues that while not every abolitionist should take up doctrine in their struggle for a post-carceral future, for some it will be the most powerful tool they can wield. Recognizing that none of us can build an abolitionist world alone, abolition has long recognized that it is, in the end, a group project. Because of this, it has embraced, and should continue to embrace, a diversity of people and tactics.

About the Author

Assistant Professor of Law, The University of Chicago Law School. Thank you to John Q. Barrett, Eve L. Ewing, K-Sue Park, and Fred Smith for helpful comments and conversations. The author also thanks the Paul H. Leffmann Fund for research support and the editors and staff of UCLA Law Review for their excellent editorial work.

By uclalaw