Three other reviewers in this symposium have described Impermissible Punishments as “magisterial,” and indeed it is, if magisterial means really long.  Yet even 818 pages of lurid descriptions of draconian punishments and failed reforms, of base subjugation of people of color, and cruel exploitation of the poor, in a time span encompassing three centuries, fail to extinguish Judith Resnik’s fantasy that the correct legal principle might lead to the right reform that could make punishment humane.  If magisterial means, as the Oxford English Dictionary says, “masterly, authoritative, commanding,” Impermissible Punishments is all of those too, but perhaps not in the way that Magistrate Resnik intends.  Her book is a masterly historical argument, an authoritative legal brief and a commanding blues wail – for abolition. 

Freeing Impermissible Punishments from its reformist drag would not require a huge makeover.  Really just two new lewks.  Resnik should make the title singular.  Virtually every sentence in the first 29 chapters makes the case that in a society with a pronounced historical and contemporary inclination toward white supremacy and racial capitalism, e.g. the global west, punishment is impermissible, at least if that society has any aspirations towards democracy, equal justice and common decency. The plural in the existing title connotes some punishments might be permissible.  The book’s text rebuts that possibility.

But first, to properly align her argument with her evidence, Resnik must delete Chapter 30.  I suspect that this demand won’t come as much of a surprise to Resnik, not only because she is brilliant, but also because she named Chapter 30 “Reasoning from Ruin.”  Students, raise your hand if you think reasoning from ruin leads to the best decision making.  Reasoning from ruin lands Resnik back in Reform World, that moldy theme park where nothing works.  If you don’t believe me, I have a reading recommendation:  the first 29 chapters of Impermissible Punishments. 

Resnik writes that "if incarceration endures, it must embody the anti-ruination principle; if it cannot, it must end." This is a reformer's constraint—it leaves the door open for a "humane" prison. It suggests that if we can just refine our methods of caging people, if we can incarcerate without destroying, then the system can continue.

The most direct way of implementing anti-ruination would be to abolish punishment. But Resnik proposes anti-ruination not as a step toward abolition, but as an alternative to it—a reformist principle that would constrain rather than challenge the prison system. This appears to be a deliberate choice: to offer a "moderate" constitutional doctrine that courts might actually adopt, even if it fails to address the system's core pathology.

In Chapter 29, Resnik devotes a paragraph to abolition, which she describes as “a full throttled rejection of imprisonment.”  One sentence acknowledges the work of “Angela Davis, Dorothy Roberts, Allegra McLeod, Ruth Gilmore, Mariame Kaba, Bernard Harcourt, Jessica Mitford, and others.”  Resnik seems poised to tacitly assign these “critics” to the dustbin of history: she states “As in centuries past, the effort to end one punishment is often coupled with suggested alternative; some abolitionists focus on limiting state-based punishment in favor of community-generated restorative processes.”

Fair enough, but none of the abolitionists Resnik names is focused only on ending incarceration. Most view abolition as much a positive project as a negative one, in the words of Fred Moten and Stefano Harney: "What is, so to speak, the object of abolition? Not so much the abolition of prisons but the abolition of a society that could have prisons, that could have slavery, that could have the wage, and therefore not abolition as the elimination of anything but abolition as the founding of a new society."[1]

Resnik’s cursory treatment of abolition, in a book about punishment, seems less than perfunctory. It seems begrudging.  In contrast to her paragraph about abolition, she devotes 10 chapters, with great profit, to the history of whipping as punishment in the United States.

Lest there be any doubt, Resnik, in Chapter 30,  outs herself as an anti-abolitionist. She writes “For those such as myself who pause at total abolition of all forms of detention, the concern is not only the challenges of the politics of obtaining endorsement of prison’s end but also that putting some form of confinement in place marks the radical injuries caused by an individual.”  Wait, what? That sounds like straight up retribution.  I see you, Immanuel Kant! Of course Resnik is free to be all about the just deserts. The problem is her book’s laborious explanation that prison in the global west has rarely been about “marking the radical injuries caused by an individual.”

If one wants to choose between hard jobs, I would rather Resnik take her prodigious talents to “the challenges of the politics of obtaining endorsement of prison’s end” than to the challenges of making retributive punishment fair in a racial capitalist society.  The anti-ruination principle will not accomplish the latter, as the critique of rights, from critical legal theory, helps understand.

The critique of rights has evolved to many sets of critiques. One description on a website curated by a group of legal theorists who teach or have taught at Harvard Law School summarizes five basic elements:

(1) The discourse of rights is less useful in securing progressive social change than liberal theorists and politicians assume.

(2) Legal rights are in fact indeterminate and incoherent.

(3) The use of rights discourse stunts human imagination and mystifies people about how law really works.

(4) At least as prevailing in American law, the discourse of rights reflects and produces a kind of isolated individualism that hinders social solidarity and genuine human connection.

(5)Rights discourse can actually impede progressive movement for genuine democracy and justice. [2]

In an essay on Gideon v. Wainwright, I argued that rights discourse can be profoundly regressive because it mystifies structural problems and provides legitimacy to unjust systems. Gideon established that indigent defendants have a right to counsel, creating the appearance of procedural fairness. Yet in the now six decades since Gideon, poor people—especially poor Black people—have become dramatically worse off in the criminal legal system. The imprisonment rate quadrupled, and racial disparities in incarceration exploded from two-to-one, when Gideon was decided,  to seven-to-one, in the 2000s.

The problem is not that Gideon is inadequately enforced, though it is. The problem is that Gideon provided a veneer of impartiality and respectability to a system whose core function remained unchanged: the control and subordination of poor people and people of color. By establishing a formal right to counsel, Gideon made the criminal legal system appear fair even as it became vastly more punitive. The right masked the reality that poor people lose in American criminal justice not because they lack effective lawyers, but because the system is designed to make them lose.

As I noted then, rights discourse converts social problems into individual, dehistoricized entitlements. It channels political energy into decades of litigation over the meaning and enforcement of rights rather than into the political mobilization needed to challenge the system itself. Most importantly, winning a right—even when that right is partially enforced—can actually impede progressive change by legitimating the status quo.

Anti-ruination risks repeating this pattern. Resnik's historical account suggests as much. In Chapters 6 and 9, she describes how "minimum standards" for prison conditions functioned as reformist traps—establishing baselines that legitimated incarceration rather than constraining it. In Chapters 22 and 23, she analyzes how the concept of "constitutional tolerability" worked similarly, setting a floor for humane treatment that paradoxically enabled the system's expansion.

If adopted by courts, anti-ruination would be poised to become the 21st century equivalent of these earlier reforms. A new constitutional floor would be established: punishment must not "ruin" inmates. This standard will channel decades of litigation into defining "ruin"—lengthy battles over what kinds of isolation, what length of sentences, what conditions of confinement cross the line. Meanwhile, punishment that stays above this floor becomes constitutionally permissible. The right creates its own ceiling.

More fundamentally, anti-ruination focuses on the methods of imprisonment rather than the legitimacy of imprisonment. It asks: How can we incarcerate people without destroying them? But it does not ask: Should we be caging human beings at all? Should we use punishment as our primary response to social problems? Should criminal law be the central mechanism for maintaining social order? By tolerating and seeking only to make it more humane, anti-ruination functions as a constraint on the carceral system, not a challenge to it.

Dorothy Roberts' work on abolition constitutionalism helps us understand why anti-ruination would fail where it matters most. Both Resnik and Roberts recognize that anti-Blackness is a feature, not a bug, of the U.S. criminal legal system. Both understand that, in the United States, police, prisons, and capital punishment are rooted in slavery and its afterlife. But they draw different conclusions from this insight.

Roberts argues that because racial subjugation is the system's structural design—its foundational logic—the system cannot be fixed; it must be abolished. No amount of procedural reform or substantive rights will transform an institution whose purpose is domination. A race-neutral principle like anti-ruination fails because it tries to fix a feature without addressing the structure that produces that feature. It’s like setting up a human resources department on a plantation. 

Roberts' analysis of the Court's "anti-abolition jurisprudence" is instructive. She demonstrates that rights doctrines like colorblindness and the discriminatory purpose requirement are not neutral legal principles but active tools that protect the racist carceral system. These doctrines make it nearly impossible to challenge systemic racial subordination because they require proof of individual discriminatory intent rather than recognizing structural racism.

A paradigmatic case is McCleskey v. Kemp. Warren McCleskey presented overwhelming statistical evidence that Georgia's capital punishment system was infected with racial bias—that defendants who killed white victims were far more likely to receive death sentences than those who killed Black victims, and that Black defendants who killed white victims faced a vastly disproportionate risk of execution. The Court ruled against Mr. McCleskey, requiring him to prove intentional discrimination in his specific case. As Roberts observes, the Court used rights discourse—the requirement of proving discriminatory purpose—to ensure that Mr. McCleskey would lose his case.  The right became a mechanism of exclusion rather than inclusion, a tool for dismissing rather than remedying racial subordination.

Anti-ruination would likely function the same way. Courts could recognize the principle, define it narrowly, and use it to uphold the constitutionality of prisons that meet the standard. Prisoners whose confinement doesn't quite rise to the level of "ruin" will have their claims dismissed—their suffering falling within the bounds of constitutional tolerability. The principle will establish what is permissible rather than what is impermissible.

But Roberts and other abolitionists insist that the choice is not between humane prisons and inhumane ones. The choice is between a carceral society and a free one. Abolition constitutionalism, as Roberts articulates it, recognizes that the Reconstruction Amendments were meant to establish a foundation for genuine freedom—for the dismantling of all systems of racial domination, not merely their refinement.

This is why abolitionists focus on building alternatives to incarceration rather than merely improving conditions within prisons. The goal is not to make the cage more comfortable but to tear it down. It is to create the social conditions—robust education, healthcare, housing, employment—that make caging people unnecessary. It is to develop community-based responses to harm that do not rely on the intentional infliction of pain by the state.

I do not mean to critique Resnik’s motives or intentions. She is trying to articulate a principle that courts might actually adopt, a reform that could happen within existing legal frameworks. But that is the problem. As the critique of rights teaches us, working within the system's logic tends to reproduce the system. Proposing new rights and new standards of constitutional tolerability does not transform power relations; it legitimates them.

Anti-ruination, for all its moral appeal, will not get us there. Like minimum standards and constitutional tolerability before it, it will become another floor that legitimates the ceiling—another baseline that says, "This much punishment is acceptable." It will channel our energies into litigation rather than liberation. And it will provide cover for a system that should not be reformed but ended.

The book’s subtitle “How Prison Became a Problem for Democracy” conveys a nostalgia for the Before Times, when prison was not a problem for democracy.  I examined the book for a description of those glory days but I couldn’t find one.  There are, again, many pages so it’s entirely possible that I missed it.  It’s also possible that the publisher dismissed a more accurate subtitle like “How Prison Cancels Democracy.”  I could see how it would be a marketing problem.  Maybe the only people who would be interested in that book would be me plus “Angela Davis, Dorothy Roberts, Allegra McLeod, Ruth Gilmore, Mariame Kaba, Bernard Harcourt, Jessica Mitford, and others.”

Some people might read this commentary and say that the core of my critique is that Resnik is not an abolitionist. They would be right.  I subscribe to an intellectual and moral imperative from  hip-hop culture to “act like you know”.  Chapters 1-29 demonstrate that Resnik understands, better than most scholars, that punishments in the western world are profoundly inhumane. Millions of people in the United States, and tens of millions around world, suffer – they are caged, beaten, tortured, isolated, banished – because their governments intend to inflict pain upon them. This is barbaric. Chapter 30 reveals that Resnik is not acting like she knows. She is either willfully blind to, or purposefully agnostic about, the inevitability of the cruelty that her magisterial history has revealed.  She should know better.  We should do better.  Better is abolition. 

Paul Butler is the Albert Brick Professor in Law at Georgetown University and the host of Returning Citizens on PBS.  You can reach him at paul.butler@law.georgetown.edu.