For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).
Paul Butler
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.
Chapter 30 proposes the "anti-ruination principle" - that punishment must not "ruin" individuals by stripping them of their capacity to participate in society. Resnik's anti-ruination principle emerges from her meticulous documentation of the centuries of struggle over the meaning of human dignity in the context of punishment. In the United States courts have grappled with the Eighth Amendment's prohibition on cruel and unusual punishment, tracing evolving standards of decency through battles over solitary confinement, prison conditions, and capital punishment.
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.
[1] Fred Moten & Stefano Harney, The University and the
Undercommons: Seven Theses, 22 Soc. Text 101, 114
(2004).
[2] Critical
Perspectives on Rights, BRIDGE,
http://cyber.law.harvard.edu/bridge/CriticalTheory /rights.htm.