1628 HARVARD LAW REVIEW [Vol.

132:1613

The Chicago reparations initiative provides one instance of what

reimagining justice in abolitionist terms might look like. As Kaba
describes:
[T]he reparations ordinance . . . [is] an abolitionist document . . . [b]ecause
it’s a document that did not rely on the court, prison, and punishment sys-
tem, to try to envision a more expansive view of justice.
So while financial restitution was a part of that package, it also did a
whole bunch of other things. . . . [W]e asked for a whole series of things that
we thought would be about rethinking justice for people who have been
wronged, survivors of violence . . . . Chicago is the first municipality in
history to ever pass a reparations bill for law enforcement violence. So
that’s something that other cities are looking at for themselves now, as ave-
nues for justice that are not personal and individual indictments of the po-
lice, not calls for cops to be jailed . . . [not] the same kind of language we
hear over and over again . . . .92
Instead of the typical calls for punitive responses to harm, participants
engaged in a broad and deep democratic process to contemplate how to
make amends. They then sought redress and repair in a form that would
begin to make the survivors whole, prevent future harm, and educate
young people so that they have an understanding of some of the root
causes and persistent legacies of racial inequality and violence.
B. Realizing Transformative Peace and Justice
Along with rethinking how to respond to the most awful forms of
state-perpetrated violence, abolitionists in Chicago and elsewhere have
sought to address other forms of less public interpersonal harm. This
has involved developing alternative means of preventing violence and
alternative means of responding in the aftermath of harm. These efforts
are small-scale attempts to prefigure different relationships between
people, to develop meaningful and thick mutual support networks, to
constitute real alternatives to police and jail intervention, and to build
power that may be used to realize farther-reaching change.
Many of these local projects provide alternative first responders, me-
diation support, or other forms of mutual aid to those who would
otherwise likely be subject to victimization, arrest, possible police vio-
lence, or incarceration. In these various programs around the country,
community members aim to intervene before conflicts escalate. In
Chicago and some other major cities, for example, teams of “violence
interrupters,” associated with a program called Cure Violence, work to
identify community conflicts likely to escalate into gun violence or other

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
92 Dan Sloan, A World Without Prisons: A Conversation with Mariame Kaba, LUMPEN MAG.
(Apr. 7, 2016), http://www.lumpenmagazine.org/a-world-without-prisons-a-conversation-with-
mariame-kaba/ [https://perma.cc/M8LH-XUB4].
2019] DEVELOPMENTS — PRISON ABOLITION 1629

violent assaults.93 Then mediators, often individuals formerly involved

in gangs, intervene to help resolve or de-escalate disputes.94 The pro-
gram is accompanied by ongoing empirical analysis that has demon-
strated success in the form of “statistically significant reductions in vio-
lence,” and is being replicated in communities around the country.95
Advance Peace, pioneered in Richmond, California, adopts a similar
model of relying on mediators to intervene in disputes, but also provides
financial support and mentorship to young people at risk of perpetrating
violence.96 The program claims to have significantly reduced youth
homicides in the jurisdiction.97
The Oakland Power Projects, organized by the Critical Resistance
chapter in Oakland, California, offer another approach to addressing
harm in which community street medics and healthcare workers train
residents in de-escalation and other tactics.98 These other tactics are
aimed at assisting neighbors confronted with a loved one facing a mental
health crisis — a frequent reason for calls to police that result in violence
and unnecessary jailing.99 The program expects that the trainees will
go on not only to provide assistance to community members in need, but
also to train others so that the relevant skillset and means of support
become increasingly widespread in communities over time.100 Likewise,
the Harm Free Zone project in Durham, North Carolina, and the Audre
Lorde Project’s Safe OUTside the System Safe Neighborhood
Campaign in Brooklyn, New York, both educate interested community
residents and train them to take action to prevent harm without police
intervention.101 The Safe Neighborhood Campaign focuses in particular
on reducing harm to queer and gender-nonconforming people of color —
who are often subject to harassment and assault by police and private
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
93 Essential Elements, CURE VIOLENCE, http://cureviolence.org/the-model/essential-elements/
[https://perma.cc/5RTQ-MLR4].
94 See, e.g., Michael J. Lewis, Two Ex-gang Members Stop a Long-Running War in the Bronx
Using Unconventional Methods, CURE VIOLENCE BLOG (Jan. 11, 2016), http://cureviolence.org/
post/two-ex-gang-members-stop-a-long-running-war-in-the-bronx-using-unconvential-methods/
[https://perma.cc/72G3-2THJ]; THE INTERRUPTERS (Kartemquin Films 2011).
95 Scientific Evaluations, CURE VIOLENCE, http://cureviolence.org/results/scientific-
evaluations/ [https://perma.cc/8V3Q-MVHJ].
96 The Solution, ADVANCE PEACE, https://www.advancepeace.org/about/the-solution/ [https://
perma.cc/B2K8-76GE].
97 Id. (“As a result of [Advance Peace’s] efforts, Richmond, California, experienced a 66% re-
duction in firearm assaults causing injury or death between 2010 and 2017.”).
98 Candice Bernd, Community Groups Work to Provide Emergency Medical Alternatives, Sepa-
rate from Police, in WHO DO YOU SERVE, WHO DO YOU PROTECT?: POLICE VIOLENCE AND
RESISTANCE IN THE UNITED STATES 151, 152–55 (Maya Schenwar et al. eds., 2016) [hereinafter
WHO DO YOU SERVE].
99 Id. at 151–52.
100 Id. at 154.
101 Rachel Herzing, Big Dreams and Bold Steps Toward a Police-Free Future, in WHO DO YOU
SERVE, supra note 98, at 111, 116.
1630 HARVARD LAW REVIEW [Vol. 132:1613

individuals — by “working with local businesses and community spaces

to provide” places that are safe for those fearing victimization.102
In Eugene, Oregon, White Bird Clinic’s Crisis Assistance Helping
Out on the Streets (CAHOOTS) program, which receives public fund-
ing, serves as another type of alternative first-responder initiative that
is operated through a central city ambulance dispatch.103 CAHOOTS
assists in teams composed of at least one nurse or EMT and one crisis
worker in cases of “drug and substance abuse, poverty-related issues,
and mental health crises” without involving police — often intervening
to support people who are homeless and other populations otherwise
subject to frequent police contact, arrest, and incarceration.104
The ambition of these various local projects is to expand capacity
and membership over time, to demonstrate their success and promise,
and to change people’s minds more broadly about the necessity of police
interventions across a wide variety of contexts, and to thereby build
local power in support of more peaceable means of collective democratic
governance. Of course, not all interpersonal harm will be prevented
through these measures; but neither is such harm effectively addressed
through existing penal measures. These projects hold more promise
than penal measures, however, because they initiate a shift in resources,
values, and political power, transforming the people whose lives they
touch and shifting attention toward how to reduce harm on the ground
such that over time more far-reaching change may become possible.
Transformative justice takes a related approach, working to prefig-
ure changed social relations by intervening in the aftermath of interper-
sonal harm. Transformative justice — developed by antiviolence
activists of color — is a community-based approach to responding to
violence or interpersonal harm that works, as Kaba and Kelly Hayes
describe, to “build support and more safety for the person harmed, figure
out how the broader context was set up for this harm to happen, and
how that context can be changed so that this harm is less likely to hap-
pen again.”105 Transformative justice differs from certain other experi-
ments in restorative justice — which are often focused primarily, if not
exclusively, on individualized responsibility — in that transformative
justice processes aspire to work toward broader social, political, and

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
102 Id. at 116. The Safe Neighborhood Campaign self-describes as “an anti-violence program led
by and for Lesbian, Gay, Bisexual, Two Spirit, Trans, and Gender Non Conforming people of color.”
Safe Outside the System (SOS), AUDRE LORDE PROJECT, https://alp.org/programs/sos
[https://perma.cc/GB8P-634W].
103 See Herzing, supra note 101, at 155.
104 Id. at 156.
105 Kelly Hayes & Mariame Kaba, The Sentencing of Larry Nassar Was Not “Transformative
Justice.” Here’s Why, THE APPEAL (Feb. 5, 2018), https://theappeal.org/the-sentencing-of-larry-
nassar-was-not-transformative-justice-here-s-why-a2ea323a6645/ [https://perma.cc/NRG2-P7G8].
2019] DEVELOPMENTS — PRISON ABOLITION 1631

economic change.106 These processes manifest changed dynamics on a

small scale in the most difficult interpersonal encounters, while simulta-
neously considering what broader transformation is immediately neces-
sary and realizable.107
Participants in the Movement for Black Lives, for example, have
turned to transformative justice processes in response to sexual harm
perpetrated by certain members of the anti-violence racial justice move-
ment against others. When one of BYP100’s leaders was accused of
sexual assault, the organization and the survivor, who is also a
Movement member, convened a transformative justice process to come
to terms with the harm done.108 The survivor, Kyra, made BYP100
aware of the assault in a letter when the perpetrator, Malcolm London,
became the focus of widespread attention on social media and elsewhere
after his arrest at a protest of the police killing of Laquan McDonald.109
At the same time that Kyra made her experience of assault public,
she also underscored that she did not believe the criminal process could
deliver justice or provide meaningful redress.110 Kyra, Malcolm, and
the transformative justice facilitators then embarked on a more than
year-long effort to address Kyra’s assault, and along the way, they pub-
lished accounts of their respective experiences.111
In consultation with her support team, Kyra decided that what she
wanted from the process was for Malcolm to publicly acknowledge the
harm he had caused and to commit to “a political education process
about sexual violence and enthusiastic consent.”112 She also wanted to
build her own confidence so that she might feel ready and able to meet
with Malcolm face-to-face and address together what had happened.113
More generally, she asked that BYP100 include in its orientation, polit-
ical education, and organizing processes a curriculum on enthusiastic
consent and the history of sexual violence in the black community that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
106 Patrisse Cullors’s essay offers a further demonstration of what transformative justice entails.
See Patrisse Cullors, Abolition and Reparations: Histories of Resistance, Transformative Justice,
and Accountability, in Developments in the Law — Prison Abolition, 132 HARV. L. REV. 1689,
1689–96 (2019).
107 Id.
108 See Post by Sarah Daoud on Behalf of Kyra, Black Youth Project (BYP100) Community
Accountability Process (Chicago, 2015–2016), TRANSFORMATIVE JUST. INITIATIVE 1–2 (Nov.
27, 2015), https://transformativejusticeinitiative.files.wordpress.com/2016/02/byp100-survivor-
statement.pdf [https://perma.cc/F8J3-EBQK].
109 Id. at 1.
110 Id. at 2.
111 Summary Statement Re: Community Accountability Process (March 2017), TUMBLR:
TRANSFORMING HARM (Mar. 8, 2017), http://transformharm.tumblr.com/post/158171267676/
summary-statement-re-community-accountability [https://perma.cc/Y88K-A3X5].
112 Community and Organization Accountability Process Update (3/1/16), TUMBLR: TRANS-
FORMING HARM (Mar. 1, 2016), http://transformharm.tumblr.com/post/140296664386/community-
and-organization-accountability-process [https://perma.cc/S2EW-7NHK].
113 Id.
1632 HARVARD LAW REVIEW [Vol. 132:1613

Kyra — who already had five years of experience in sexual violence

prevention education — would help to develop.114 Finally, Kyra re-
quested that platforms be created within the broader movement for dis-
cussions about sexual violence and how organizations might attend to
these problems.115
After fifteen months of work with their separate teams, Kyra and
Malcolm met together with all parties involved in the transformative
justice process to discuss what had happened between them.116 This
convening marked the end of the process, which Kyra, Malcolm, and all
involved described as deeply impactful, both personally and as a possi-
ble fount of wide-ranging change in practices of positive sexual intimacy
in the broader community.117
Beyond the work of the individual participants, BYP100 developed
new policies to address sexual harm.118 BYP100 generally resolved to
place any member accused of sexual assault on a membership hiatus, to
meet with both parties to hear their respective accounts, and to begin
an internal deliberation regarding further action that might include pos-
sible permanent revocation of membership, arranging the facilitation of
a mediation session, an internal accountability session, and an “agree-
ment to atone as a condition of full membership reinstatement.”119
BYP100 also explored how to realize enthusiastic consent practices
among membership and provide community healing spaces.120
A Healing and Safety Council was created to convene transformative
justice processes whenever a member has been hurt.121 The Council is
composed of two squads, one focused on prevention and one on inter-
vention, and both collaborate to respond to harm in the organization’s
chapters and to foster a culture of “healing praxis.”122 As part of this
approach, the Council created a Safety Plan that allows each member to
indicate how they would want BYP100 members to respond if harm
were to befall them, and it also produced a manual, Stay Woke Stay
Whole: Black Activist Manual, as a guide for preventing and intervening
in harm.123
Rather than viewing this process as a prescription of how to respond
to wrongdoing across the board in all circumstances, all participants

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
114 Id.
115 Id.
116 Summary Statement Re: Community Accountability Process (March 2017), supra note 111.
117 Id.
118 Id.
119 Id.
120 Id.
121 Id.
122 Id.
123 Id.
2019] DEVELOPMENTS — PRISON ABOLITION 1633

understood their work together as creating a framework for an alterna-

tive response, one which was consistent with their critiques of criminal
legal practices and with their commitment to realizing justice in other
terms.124 This is difficult work and there is by no means consensus on
the role such processes ought to play in responding to sexual harm or
other forms of violence. But by devising an alternative approach to
addressing interpersonal violence and working to realize meaningful ac-
countability and amends, participants begin to prefigure a world with-
out prisons and police, shrinking the role of criminal law in their lives,
and in so doing, paving the way for others to do the same.
C. Reimagining Security, Expanding Sanctuaries
Abolitionists have also begun to broadly reconceptualize what actu-
ally constitutes criminal wrongdoing and to advocate for a democrati-
zation of local political economies as a means of reducing harm and
ensuring collective well-being. For abolitionists, much of the conduct
that is the focus of criminal law enforcement should not be understood
as criminal at all. The vast majority of police stops, arrests, and prose-
cutions in the United States involve low-level quality-of-life offenses and
other trivial infractions.125 Abolitionists work to eliminate much of this
low-level criminal enforcement altogether. They instead look to build
local democratic power to reinvest public resources in projects that ac-
tually provide meaningful security, while simultaneously reducing the
violent theft perpetrated daily by mainstream economic practices and
institutions. A significant part of this work entails contesting existing
resource allocations, which are understood themselves to be deeply un-
just — and a cause, in fact, of much criminalized conduct.126
To carry out this work, abolitionists have undertaken a variety of
different projects across the country. In Chicago, organizers have
launched a public debate about what it would mean to make cities gen-
uinely secure, demanding that Chicago become a true sanctuary city and
pushing the city to make good on its claims of being a sanctuary — a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
124 Id.
125 See, e.g., Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 STAN. L.
REV. 611, 613 n.3 (2014) (noting that, in 2009 alone, a “conservative estimate” from sixteen states
documented 5.9 million misdemeanor filings compared to only 1.4 million felony filings); see also
DIV. OF CRIMINAL JUSTICE SERVS., N.Y. STATE, ADULT ARRESTS: 2005–2014 (2015),
http://www.criminaljustice.ny.gov/crimnet/ojsa/arrests/NewYorkCity.pdf [https://perma.cc/V88F-
VG78] (indicating that, between 2005 and 2014, roughly two-thirds of all New York City arrests
were for misdemeanors). See generally ISSA KOHLER-HAUSMANN, MISDEMEANORLAND:
CRIMINAL COURTS AND SOCIAL CONTROL IN AN AGE OF BROKEN WINDOWS POLICING
(2018); ALEXANDRA NATAPOFF, PUNISHMENT WITHOUT CRIME: HOW OUR MASSIVE MIS-
DEMEANOR SYSTEM TRAPS THE INNOCENT AND MAKES AMERICA MORE UNEQUAL (2018).
126 Cf. DAVIS, ABOLITION DEMOCRACY, supra note 8, at 103; MOVEMENT FOR BLACK
LIVES, supra note 9 (“We demand economic justice for all and a reconstruction of the economy to
ensure Black communities have collective ownership, not merely access.”).
1634 HARVARD LAW REVIEW [Vol. 132:1613

place where all people are truly safe from state and private violence.127
Organizers have exposed how, despite Chicago’s purported status as a
“sanctuary city,” policing often renders life in Chicago insecure for many
youth of color — immigrant and U.S.-born alike — who are subject to
arbitrary stops and arrests on a recurring basis.128 The difference be-
tween “innocence” and “criminality,” abolitionists have underscored, is
often just the product of policing practices that target low-income com-
munities of color, such as “stop and frisk,” “broken windows” policing,
predictive policing, and the use of “gang databases” to track youth who
wear gang colors, sport tattoos, or associate with community members
believed to be gang affiliated.129 As organizer Reyna Wences and
Professor Ruth Gomberg-Muñoz explain, “most municipal sanctuary
measures have a central weakness: they only seek to protect immigrants
deemed as ‘law-abiding,’ leaving those already ensnared in a racist sys-
tem of criminalization and policing unprotected.”130
The debate over the true meaning of “sanctuary cities” has sparked
a broader conversation, in which abolitionists have played a major part,
about what security, safety, and well-being might consist of instead.
Organizers for racial and immigration justice — working with BYP100,
Mijente, Communities Organized Against Deportations, and researchers
at the University of Illinois at Chicago — have collaborated to gather
evidence and raise awareness in order to eliminate the Chicago gang
database and redirect resources toward education and social services.131
As Wences and Gomberg-Muñoz write: “As [these groups] draw atten-
tion to racist policing practices and the false promises of city leaders
who vow to protect them, organizers mobilize community members to
create real sanctuary in their relationships with each other and a wider
Chicago community truly invested in equality and justice.”132
These efforts have also focused attention on budgeting processes,
challenging the direction of public funds to policing and punishment
rather than social, restorative, or other projects. BYP100, in conjunc-
tion with some other organizations, has produced a powerful analysis of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
127 See, e.g., About, ERASE THE DATABASE, http://erasethedatabase.com/about [https://
perma.cc/S4NB-HPVB] (describing a Chicago activist coalition’s mission to “urg[e] the city of
Chicago [to] expand what it means to be a ‘Sanctuary City’ to protect immigrants” and U.S.-born
people of color “who are targeted by police”).
128 See Reyna Wences & Ruth Gomberg-Muñoz, To Create True Sanctuary Cities, We Must End
Racist Policing, TRUTHOUT (May 14, 2018), https://truthout.org/articles/to-create-true-sanctuary-
cities-we-must-end-racist-policing [https://perma.cc/QR4Z-QN7Y]; see also Monica Davey & Mitch
Smith, Chicago Police Dept. Plagued by Systemic Racism, Task Force Finds, N.Y. TIMES (Apr. 13,
2016), https://nyti.ms/1SgbFbX [https://perma.cc/RJP9-GJT6] (summarizing longstanding patterns
of institutionalized racism and discriminatory treatment in Chicago policing).
129 Wences & Gomberg-Muñoz, supra note 128.
130 Id.
131 See id.
132 Id.
2019] DEVELOPMENTS — PRISON ABOLITION 1635

how participatory budgeting could reshape public spending in cities

across the country.133 In Chicago in 2017, for example, the city allocated
nearly $1.5 billion of its $8.2 billion operating budget (or 17.6%) to the
Department of Police, far exceeding expenditures on critical resources
like health services and programs for youth.134 The Department of
Public Health, by contrast, was allocated about a third of one percent
(0.4%) of total budget expenditures.135 The Department of Family and
Support Services, which houses youth programs, violence reduction pro-
grams, after-school programs, and homeless services, also was allocated
less than one percent of total expenditures.136 BYP100 Chicago is spear-
heading an organizing campaign for a participatory city-budgeting pro-
cess in which the public is empowered to defund police and reinvest
resources by “setting a living wage and by fully funding healthcare, so-
cial services, public schools, and sustainable economic development pro-
jects.”137 This is not only an effort to change the allocation of resources,
however; the organizers are working more broadly to democratize the
local political economy and to underscore the antidemocratic character
of existing public-spending decisions.138
Organizers in other cities have made similar calls to tie abolitionist
organizing around the criminal process to economic justice and demo-
cratic political economy reform. Zachary Norris, the executive director
of the Ella Baker Center for Human Rights in Oakland, California,139
has launched a “truth and reinvestment” campaign advocating for rein-
vestment from the criminal legal system into low-income communities
and communities of color.140 Norris, the Ella Baker Center, and orga-
nized community members have called their campaign “50% for Jobs
Not Jails, Books Not Bars, and Healthcare Not Handcuffs,”141 and
much of their work has involved local advocacy around budgeting de-
cisions, such as working to redistribute dollars from sheriffs’ and pro-
bation offices to community-based worker-resource centers for people
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
133 See CTR. FOR POPULAR DEMOCRACY ET AL., FREEDOM TO THRIVE: REIMAGINING
SAFETY AND SECURITY IN OUR COMMUNITIES 21 (2017), https://populardemocracy.
org/sites/default/files/Freedom%20To%20Thrive%2C%20Higher%20Res%20Version.pdf [https://
perma.cc/36T3-LM7X].
134 Id. at 21.
135 Id.
136 Id.
137 Id. at 20.
138 Id. at 79–80.
139 Our Team, ELLA BAKER CTR. FOR HUM. RTS., https://ellabakercenter.org/about/
staff-and-board [https://perma.cc/J92Q-EQF7].
140 See Zachary Norris, Ella Baker Center, Truth and Reinvestment: Why We Need Reparations for
Right Now, MEDIUM (Mar. 9, 2016), https://medium.com/@ellabakercenter/truth-and-reinvestment-
why-we-need-reparations-for-right-now-2dba1f26cb49 [https://perma.cc/5FYG-UNLZ].
141 Jobs Not Jails for Alameda County, ELLA BAKER CTR. FOR HUM. RTS., https://
ellabakercenter.org/jobs-not-jails-for-alameda-county-0 [https://perma.cc/QYJ2-43D6].
1636 HARVARD LAW REVIEW [Vol. 132:1613

returning to communities after incarceration.142 Anthony Newby, work-

ing with Neighborhoods Organizing for Change (NOC), a black-led
community organization in Minneapolis, pressured the city and state to
reinvest public funds after the killing of Jamar Clark by police in
2015.143 Newby and other organizers shut down an airport terminal
and the Mall of America.144 Ultimately, Newby and his collaborators
managed to secure thirty million dollars for reinvestment.145 The next
stage for his organization and movement, Newby has said, is to think
about how to most meaningfully invest that money so it does not simply
go to providers who are committed to preserving the status quo.146
In Washington, D.C., in 2015 and 2016, local Black Lives Matter
activists successfully opposed the mayor’s proposed anticrime legisla-
tion, which would have expanded funding for policing, increased police
presence, and increased penalties for a range of offenses.147 Organizers
pushed instead for a separate initiative that would use “a community-
based public health approach to violence prevention.”148 At the same
time, activists in D.C. also pressed the city to increase investment in
community land trusts, a form of collective property ownership that
maintains the affordability of homes in gentrifying neighborhoods over
time,149 and organizers made significant strides towards implementing
a living wage.150
As these projects have unfolded, the Movement for Black Lives and
other organizers have developed accompanying webinars, have com-
piled hyperlinked resources for litigation and legislative advocacy, and
have explored model domestic and foreign legislation.151 The idea is
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
142 Vision 4 Black Lives Webinar Series, supra note 25 (comments by Zachary Norris).
143 See Anthony Newby, In North Minneapolis, Funding Should Be Problem-Solving, Not Pu-
nitive, STAR TRIB. (Dec. 15, 2015, 6:37 PM), http://www.startribune.com/in-north-minneapolis-
funding-should-be-problem-solving-not-punitive/362549591/ [https://perma.cc/4VRJ-AQDA].
144 See Amanda Holpuch, Black Lives Matter Protest Shuts Down Mall of America and Airport
Terminal, THE GUARDIAN (Dec. 23, 2015, 4:46 PM), https://www.theguardian.com/us-news/
2015/dec/23/black-lives-matter-organizers-protest-mall-of-america [https://perma.cc/VXN7-J92W].
145 Vision 4 Black Lives Webinar Series, supra note 25 (comments by Zachary Norris).
146 Id.
147 See Abigail Hauslohner & Aaron C. Davis, Black Lives Matter Activists Disrupt Bowser
Speech on How to Stop Killings, WASH. POST (Aug. 27, 2015), http://wapo.st/1fIrrKp [https://
perma.cc/542E-UNS4]; Brent J. Cohen, Implementing the NEAR Act to Reduce Violence in
D.C., D.C. POL’Y CTR. (May 25, 2017), https://www.dcpolicycenter.org/publications/
implementing-near-act-reduce-violence-d-c/ [https://perma.cc/87PX-2TQR] (explaining that com-
munity advocates were a major cause of revisions to the NEAR Act).
148 Cohen, supra note 147.
149 See Mary Hui, In Bid to Keep Homes Affordable, Anacostia Will Have Its First Community
Land Trust, WASH. POST (Sept. 24, 2017), http://wapo.st/2fK6wty [https://perma.cc/2AF5-CWFR].
150 Martin Austermuhle, Bowser Signs Bill Raising D.C.’s Minimum Wage to $15, with Nod
from Obama, WAMU 88.5 AM. U. RADIO (June 27, 2016), https://wamu.org/
story/16/06/27/bowser_signs_bill_raising_dcs_minimum_wage_to_15_with_nod_from_obama/ [https://
perma.cc/834H-GVJR].
151 See MOVEMENT FOR BLACK LIVES, supra note 9.
2019] DEVELOPMENTS — PRISON ABOLITION 1637

that other communities may turn to these resources to devise their own
related projects. Through these and other efforts, local organizers have
built a national movement that serves to denaturalize common assump-
tions about crime and punishment, connecting criminal law reform to
mobilizations for a living wage, affordable housing, cooperative owner-
ship, and a redistribution of public resources.
Professor Keeanga-Yamahtta Taylor has underscored how the
Movement for Black Lives has reshaped public discourse on crime, po-
licing, and race.152 But the movement has also revitalized local demo-
cratic politics, reshaping local and state budgeting efforts, in large part
by organizing communities to actively redirect their own state and local
governments. In localities around the United States, organizers are en-
gaging in the collective institution-building political work essential to
realizing abolition democracy.153 Ultimately, for abolitionists, the
question of what democracy and justice might look like without prisons
and police remains open, but these are attempts to begin to prefigure
more meaningful forms of redress and a more liberatory democratic
politics.154

III. ABOLITION’S CHALLENGE TO LEGAL THEORY,

IMAGINING JUSTICE ANEW
While abolition democracy holds open the question of what justice
requires and attends to the substance of redress in particular contexts,
conventional legal theories, by contrast, consist of formal, abstract, and
well-settled but seldom-examined constructions.155 Conventional ac-
counts of legal justice typically neglect the overwhelming discontinuity
between the ideals of justice proclaimed and their deeply inadequate,
often violent, racialized, and ultimately destructive realization. Aboli-
tion democracy is, of course, committed to a set of ideals as well. But
the problem with conventional accounts of legal justice is not simply
one of as-yet-imperfect implementation of existing ideals of legal justice.
Rather, the very foundations of existing conceptions of legal justice are
inadequate, compromised, limited in the ideas of justice exhorted, and
corrupted by inescapably vicious and inegalitarian institutional histories
and cultures. Moreover, the standard approaches to assessing whether
legal justice is served fail to attend to actual experience, focusing almost
exclusively on idealized justifications of existing practices.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
152 See KEEANGA-YAMAHTTA TAYLOR, FROM #BLACKLIVESMATTER TO BLACK LIBERA-
TION 153–77 (2016).
153 See DAVIS, ABOLITION DEMOCRACY, supra note 8, at 95–96.
154 For a further exploration of the ideas presented in sections II.B and II.C, see Allegra M.
McLeod, Law, Critique, and the Undercommons, in A TIME FOR CRITIQUE (Didier Fassin &
Bernard E. Harcourt eds. (forthcoming 2019)).
155 See supra pp. 1613–16.
1638 HARVARD LAW REVIEW [Vol. 132:1613

A. Criminal Justice
The most widely embraced conception of how legal justice should
take shape in the aftermath of harm involves recourse to the criminal
legal system. Various justifications for criminal arrest, criminal prose-
cution, and criminal punishment vie for dominance in legal theory, with
some embracing retributivism,156 others advocating deterrence-based
rationales, and still others focused on the community’s expression of
shared norms.157 But the realities of the criminal legal process are
starkly at odds with these theoretical justifications. Instead, criminal
prosecution generally fails to address the needs of survivors of harm.158
It also degrades and brutalizes those subject to prosecution.159 All the
while, the criminal legal system neglects the underlying causes of the
problems at hand so that they are almost certain to occur again. The
widespread attachment to the idea that criminal adjudication promises
justice is often accepted as an unquestioned article of faith even as it is
dramatically belied by experience.
Although the primary objection to penal abolition is that murder,
rape, and child sexual assault demand a criminal prosecutorial re-
sponse,160 the truth is that the criminal process fails to respond at all to
many of these most egregious forms of wrongdoing,161 and when it does,
the redress available through the criminal process is typically deeply
inequitable, violent, and at odds with any conception of meaningful
amends or principled accountability. Consider first the case of state-
perpetrated violence, such as police killings of ordinary men and women
or the torture carried out by the Chicago police under the direction of

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
156 See generally Russell L. Christopher, Deterring Retributivism: The Injustice of “Just” Pun-
ishment, 96 NW. U. L. REV. 843, 845–47 (2002).
157 See SANFORD H. KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES 96–132 (10th ed.
2017) (surveying various justifications for punishment, including utilitarianism, retribution, and re-
lated theories such as vengeance and social cohesion, and mixed theories); David Scott, Why Prison?
Posing the Question, in WHY PRISON? 1, 10–15 (David Scott ed., 2013) (critically reviewing common
arguments justifying the existence of prisons, including retribution and deterrence theories).
158 See, e.g., Mary Fan, Adversarial Justice’s Casualties: Defending Victim-Witness Protection,
55 B.C. L. REV. 775, 776 (2014) (“The evidence is mounting that undergoing rituals of adversarial
adjudication retraumatizes victims of violent and sexual assault crimes.”); Ilene Seidman & Susan
Vickers, The Second Wave: An Agenda for the Next Thirty Years of Rape Law Reform, 38 SUFFOLK
U. L. REV. 467, 472 (2005) (“[T]he criminal justice process is too slow and poorly equipped to protect
against the immediate devastating consequences of assault.”).
159 Angel Sanchez’s essay, In Spite of Prison, offers one example of this disconnect between
theory and experience. See Angel E. Sanchez, In Spite of Prison, in Developments in the Law —
Prison Abolition, 132 HARV. L. REV. 1650 (2019).
160 See, e.g., Julia C. Oparah, Why No Prisons?, in WHY PRISON?, supra note 157, at 278, 285.
161 See, e.g., Aamer Madhani, Unsolved Murders: Chicago, Other Big Cities Struggle; Murder
Rate a “National Disaster,” USA TODAY (Aug. 10, 2018, 3:19 PM), https://www.usatoday.
com/story/news/2018/08/10/u-s-homicide-clearance-rate-crisis/951681002/ [https://perma.cc/32WS-
NCX6].
2019] DEVELOPMENTS — PRISON ABOLITION 1639

Burge.162 In the case of murders or assaults by agents of the state, crim-

inal prosecution typically fails to deliver much in the way of redress at
all,163 perhaps because those responsible for initiating criminal proceed-
ings are compromised by their close ties to policing and related state
institutions.164 The failure to impose any proportional punishment in
these cases plainly violates retributive premises, as well as deterrence
goals, and also falls far short of expressing community norms. The
frequent refusal to impose any consequences in cases of state-
perpetrated violence — for instance, in fifteen recent high-profile cases
in which Black people were killed by police or died in custody, only
three resulted in a conviction165 — strongly suggests the inadequacy of
the criminal process in responding to this form of homicidal violence.
But the problem is deeper than advocates for convictions might suggest;
justice would still not be meaningfully served even if all those police
officers guilty of these acts were prosecuted, convicted, and sentenced to
prison.166
This is so for at least three reasons. First, criminal prosecutions of
state violence — such as murders perpetrated by police — focus on in-
dividual culpability of particular officers, leaving unchanged the insti-
tutional and cultural dynamics responsible for the pervasive violence of
policing and its concentration on particular bodies and in specific disen-
franchised communities.167 In fact, by characterizing the problem at
hand as simply one of incapacitating isolated “bad apple[s],” criminal

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
162 See supra pp. 1624–28.
163 See, e.g., infra text accompanying note 165.
164 See, e.g., Safia Samee Ali & William Sherman, Why Police Officers Often Aren’t Convicted
for Using Lethal Force, NBC NEWS (July 30, 2016, 4:07 PM), https://www.nbcnews.com/news/us-
news/why-police-officers-often-aren-t-convicted-using-lethal-force-n619961 [https://perma.cc/3566-
NWKX] (“[O]fficers across the country are often not charged . . . due to . . . a set of factors . . .
including . . . the weight of an officer’s word, and, of course, the softer approach prosecutors take
with police defendants.”); Joseph P. Williams, Why Aren’t Police Prosecuted?, U.S. NEWS
(July 13, 2016, 1:31 PM), https://www.usnews.com/news/articles/2016-07-13/why-arent-police-held-
accountable-for-shooting-black-men [https://perma.cc/B236-PC8Z] (“[L]ocal prosecutors can be re-
luctant to charge members of a department they closely work with on a daily basis.”).
165 See Jasmine C. Lee & Haeyoun Park, 15 Black Lives Ended in Confrontations with Police. 3
Officers Convicted., N.Y. TIMES (Oct. 5, 2018), https://nyti.ms/2B1l43S [https://perma.cc/H6VT-
5MNW].
166 See Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal
Justice Reform, 104 GEO. L.J. 1419, 1425 (2016) (“‘[S]uccessful’ reform efforts substantially improve
community perceptions about the police without substantially improving police practices.”).
167 See, e.g., Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and
Disorder in New York City, 28 FORDHAM URB. L.J. 457, 489, 496–503 (2000).
1640 HARVARD LAW REVIEW [Vol. 132:1613

prosecutions and convictions of abusive officers may even stand to legiti-

mize policing practices in general, though those practices tend to
dehumanize men, women, and children on a daily basis.168
Second, the law itself countenances many forms of excessive force
deployed by police — granting to police what Professor Paul Butler calls
“super powers.”169 So the legal standards applied in prosecutions of
murderous officers will often fail to capture the scope of violent conduct
that ought rightly to be condemned, suggesting certain abuses are inno-
cent when in fact they cause grave harm.170
Third, and perhaps most important, the conviction and incarceration
of police who have perpetrated violence do not offer tangible recom-
pense to survivors and others who have been harmed, nor do those
responses work to prevent similar acts from occurring in the future.171
The only sense in which one can understand such convictions and in-
carcerations as delivering justice is against the backdrop of a status quo
of utter impunity or public acquiescence, taking for granted that the
application of criminal sanctions offers meaningful redress without
inquiring more deeply into what interests are actually served by such an
outcome and of what the promised justice substantially consists. By con-
trast, the work of abolitionist organizers to address the Chicago police tor-
ture sought to devise a remedial scheme that served to make survivors as
close to whole as possible, to address the underlying causes of the violence
at hand, and to commit to preventing it from occurring in the future.172
The case of rape and sexual assault is instructive here as well. Rapes
and sexual assaults are seldom criminally reported, rarely criminally
prosecuted, and infrequently result in criminal conviction or substantial
punishment.173 Yet, even when a police officer is severely punished for
sexual abuse — such as Daniel Holtzclaw, who was sentenced to 263
years of incarceration for sexually assaulting multiple women while

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
168 See Kaba, supra note 21 (“This is not a problem of individually terrible officers rather it is a
problem of a corrupt and oppressive policing system built on controlling & managing the margin-
alized while protecting property.”).
169 Butler, supra note 166, at 1446.
170 See Allegra M. McLeod, Police Violence, Constitutional Complicity, and Another Vantage,
2016 SUP. CT. REV. 157, 159–69.
171 See Scott, supra note 157, at 11–12 (explaining how incarceration does not serve deterrence-
based goals).
172 See supra pp. 1613–14.
173 See Allegra M. McLeod, Regulating Sexual Harm: Strangers, Intimates, and Social Institu-
tional Reform, 102 CALIF. L. REV. 1553, 1556–57 (2014) (citing LYNN LANGTON ET AL., U.S.
DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: VICTIMIZATIONS
NOT REPORTED TO THE POLICE, 2006–2010, at 4 (2012)); see also Kimberly A. Lonsway &
Joanne Archambault, The “Justice Gap” for Sexual Assault Cases: Future Directions for Research and
Reform, 18 VIOLENCE AGAINST WOMEN 145, 157 (2012); Seidman & Vickers, supra note 158, at 472.
2019] DEVELOPMENTS — PRISON ABOLITION 1641

working as a police officer174 — the punishment prescribed often fails

to redress the wrong committed. The incarceration of Holtzclaw, for
example, leaves in place the dynamics of unconstrained power and con-
trol by police officers over poor, drug-addicted women of color involved
in sex work such that his crimes can readily occur again. Holtzclaw’s
sentence also offers little to the survivors of his assaults. The propor-
tionality of the sentence to the crimes remains ultimately uncertain as it
neither makes his victims whole, nor requires any acceptance of respon-
sibility, nor otherwise calibrates the consequences of his conduct to the
harms he caused. Moreover, the pronouncement of a lifetime sentence
like this one fails to express with any specificity the norms of the com-
munity vis-à-vis sexual assault, as it does not address the community’s
practices that render sexual misconduct pervasive and largely unre-
dressed. It does not demand active accountability at all. Finally, the
sanction violates any principled conception of justice as it entails impos-
ing on another human being — however vile his conduct — a life in a
cage, where he will almost certainly be brutalized, possibly sexually vio-
lated,175 or left to decompensate in a state of solitary confinement widely
regarded as torture.176
It is also instructive to consider the prevalence of gun-related homi-
cides. In certain neighborhoods in Chicago and other cities, like
Richmond, California, gun-related homicides are frequent events.177 As
Professor Marie Gottschalk notes: “The homicide rate in Chicago’s af-
fluent Hyde Park . . . is 3 per 100,000. . . . The homicide victimization
rate for young black men involved in criminally active groups in a high
crime neighborhood on Chicago’s west side is 3,000 per 100,000, or
about 600 times the national rate.”178 But as in the case of rape and

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
174 See Elliott C. McLaughlin, Sara Sidner & Michael Martinez, Oklahoma City Cop Convicted
of Rape Sentenced to 263 Years in Prison, CNN (Jan. 22, 2016), https://www.cnn.com/
2016/01/21/us/oklahoma-city-officer-daniel-holtzclaw-rape-sentencing/index.html [https://perma.cc/
VJC5-E3KZ].
175 See Nancy Wolff et al., Sexual Violence Inside Prisons: Rates of Victimization, 83 J. URB.
HEALTH 835, 836, 841 (2006). See generally JOANNE MARINER, HUMAN RIGHTS WATCH, NO
ESCAPE: MALE RAPE IN U.S. PRISONS (2001).
176 See, e.g., Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Anal-
ysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC. CHANGE 477, 508 (1997); see
also Reginald Dwayne Betts, Only Once I Thought About Suicide, 125 YALE L.J.F. 222 (2016).
177 See, e.g., Stef W. Knight & Michael Sykes, The Deadliest City: Behind Chicago’s Segregated
Shooting Sprees, AXIOS (Aug. 14, 2018), https://www.axios.com/chicago-gun-violence-murder-rate-
statistics-4addeeec-d8d8-4ce7-a26b-81d428c14836.html [https://perma.cc/DRB3-LVH7]; Joaquin
Palomino & Kimberly Veklerov, In Richmond, High Number of Homicides Go Unsolved, S.F.
CHRON. (Apr. 8, 2017, 5:14 PM), https://www.sfchronicle.com/crime/article/In-Richmond-many-
murders-go-unsolved-11055724.php [https://perma.cc/Y32F-7ZYW].
178 MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF
AMERICAN POLITICS 276–77 (2014).
1642 HARVARD LAW REVIEW [Vol. 132:1613

sexual assault, the vast majority of these incidents go unsolved.179

Chicago police solve roughly only one in every twenty shootings.180 As
a consequence, these cases typically go unaddressed by the criminal pro-
cess — and again the criminal process is failing to impose retributive
justice, achieve deterrence objectives, or express community norms. In
those one-in-twenty cases where charges are brought, the ultimate con-
viction and sentencing of one young person does little to address the
underlying dynamics that fuel this violence, to offer meaningful account-
ability, or to make the victims or their survivors whole.
Of course, the vast majority of criminally prosecuted conduct does
not involve serious harm along these lines at all. Most of the work of
criminal courts involves processing arrests of poor people for trivial or
even victimless crimes — petty thefts, minor drug possession or sales,
trespassing, or offenses related to addiction, mental illness, and poverty.181
While some of what is most abhorrent in prison-based punishment
is associated with horrific conditions in prisons and jails,182 the problems
with this conception of justice would still abound even if the conditions
could be improved to the point where they were analogous to the most
pristine Scandinavian prisons.183 Punishment, even in sanitized prisons,
would still not respond to the needs of survivors or the public, and
would still treat the perpetrators as disposable even if the place where
they were deposited was relatively comfortable. It is also disingenuous
to suggest that U.S. prisons could become more like those of Norway or
Finland without the sorts of broader changes to the U.S. political econ-
omy urged by abolitionists — and if such changes were achieved, it is
not clear why a more democratic and welfarist expansion and redistri-
bution of resources would be best allocated to beautifying prisons rather
than radically reducing reliance upon them.
Across all of these contexts — from the frequent failure to redress
homicides, rapes, and sexual assaults, to the overcriminalization of poor
people charged with petty offenses — the prevailing accounts of how
the criminal process delivers justice are blatantly violated. Criminal

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
179 See Annie Sweeney & Jeremy Gorner, Chicago Police Solve One in Every 20 Shootings. Here
Are Some Reasons Why That’s So Low., CHI. TRIB. (Aug. 8, 2018), https://www.chicagotribune.com/
news/local/breaking/ct-met-chicago-violence-clearance-rate-20180807-story.html [https://perma.cc/
JEH3-2WAG].
180 Id.
181 See KOHLER-HAUSMANN, supra note 125; NATAPOFF, supra note 125; Kohler-Hausmann,
supra note 125.
182 See, e.g., Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84 N.Y.U.
L. REV. 881, 887–89 (2009).
183 See, e.g., Erwin James, The Norwegian Prison Where Inmates Are Treated Like People, THE
GUARDIAN (Feb. 25, 2013, 3:00 PM), https://www.theguardian.com/society/2013/feb/25/norwegian-
prison-inmates-treated-like-people [https://perma.cc/EMD5-DUBM].
2019] DEVELOPMENTS — PRISON ABOLITION 1643

justice — the idea that criminal conviction and punishment render jus-
tice in the aftermath of harm — appears to be a delusion, grounded in
ideology rather than attention to actual criminal prosecutions and their
aftermath. To equate the criminal legal process with justice is to insist
upon an idealist notion of what criminal punishment will deliver, with-
out accounting at all for the experiences of those whose lives it touches.
Moreover, as I have described earlier in this Essay, efforts to reform
criminal legal processes in order to attempt to realize idealized visions
of justice are doomed to simply further entrench existing injustices if
they are not accompanied by more transformative demands.184
B. Procedural Justice
Procedural justice — an influential approach to criminal law
reform — works to render the criminal legal process more just by chang-
ing the way police and other officials interact with those they serve in
order to signal respect and fairness, and to improve perceptions of law
enforcement’s legitimacy. Social psychologist Tom Tyler introduced this
account of procedural justice in his widely influential study Why People
Obey the Law, in which he argued that legal compliance occurs not so
much because people fear punishment but because they believe the law
is legitimate and respect its authority.185 Professor Tracey L. Meares
explains the relevance of procedural justice to criminal law reform:
Scholars of procedural justice note that people generally care much
more about how they are treated by police than whether those police are
effective crime fighters or make decisions that benefit them personally.
People of all races and genders wish to be treated with dignity, respect, and
concern for their rights; that this minimal expectation sets such a surpris-
ingly high bar means that it offers a compelling starting point for thinking
about police reform across conventional social barriers.186
Criminal law reform organized around procedural justice aims to
improve communities’ perceptions of the criminal legal system (and
thereby increase legal compliance) by changing the tenor of how law
enforcement engages community members. The most prominent em-
brace of procedural justice took shape in the May 2015 Final Report of
the White House Task Force on 21st Century Policing, the foundation
of which is a reform strategy centered on building trust in and legitimacy
of law enforcement.187

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
184 See supra pp. 1615–16.
185 See TOM TYLER, WHY PEOPLE OBEY THE LAW 3 (1990).
186 Tracey L. Meares, Policing: A Public Good Gone Bad, BOS. REV. (Aug. 1, 2017),
http://bostonreview.net/law-justice/tracey-l-meares-policing-public-good-gone-bad [https://perma.cc/
94M9-XJLF].
187 PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING, U.S. DEP’T OF JUSTICE,
FINAL REPORT OF THE PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING 9 (2015).
1644 HARVARD LAW REVIEW [Vol. 132:1613

The core problem with this approach to redeeming criminal law en-
forcement and rendering it consistent with the demands of justice is pri-
marily that procedural justice focuses on a feeling of respect or fairness
rather than on realizing substantively just conditions at a more funda-
mental level. As Professor Monica Bell explains in a powerful critique
of procedural justice, legitimacy theory locates the problems with the
criminal legal process in the social dynamics of officer-citizen interac-
tions rather than in more foundational structural problems and group-
level dynamics.188 The inability of the criminal legal process to deliver
meaningful justice in the aftermath of severe interpersonal harm, and
its overemphasis on the enforcement of laws against conduct that ought
not to be criminalized, will not be corrected by police training or by
making officers more respectful of those they police.
The procedural justice framework is also inadequate in that it cali-
brates its argument for greater fairness and respect in law enforcement
to increased legal compliance. Justice ought not to be primarily con-
cerned with how often people comply with legal rules but instead should
attend broadly to the quality of collective life, fair and more equitable
distribution of material resources, and human flourishing.
C. Civil Justice
Another common conception of legal justice is organized around the
civil legal system and specifically the body of law referred to as tort law.
As Professor Benjamin Zipursky, a tort law scholar, explains, “[T]ort law
is a private right of action that the state, through courts, empowers cer-
tain plaintiffs to have against certain defendants.”189 An adjunct or
alternative to criminal punishment, then, is to pursue justice through a
civil lawsuit where the person wronged seeks to be made whole, taking
something from the wrongdoer to remove his or her unjust gain and
transferring that sum to the victim or survivor of the harm.190
The problems with this fault-based approach to civil justice are sev-
eralfold. First, as with criminal justice, the actual operations of the civil

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
188 Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 YALE L.J.
2054, 2058–59 (2017).
189 Benjamin C. Zipursky, Civil Recourse and the Plurality of Wrongs: Why Torts are Different,
2014 N.Z. L. REV. 145, 146.
190 This view of tort law as primarily concerned with transferring something from the wrongdoer to
the person wronged, known as civil recourse theory, has been persuasively advanced by Professors John
Goldberg and Benjamin Zipursky. See John C.P. Goldberg & Benjamin C. Zipursky, Torts as
Wrongs, 88 TEX. L. REV. 917, 946 (2010) (“Tort law provides victims with an avenue of civil re-
course against those who have committed relational and injurious wrongs against them.”).
Although civil recourse theory has been the subject of some debate, see, e.g., Guido Calabresi, Civil
Recourse Theory’s Reductionism, 88 IND. L.J. 449, 451–59 (2013); Jane Stapleton, Evaluating
Goldberg and Zipursky’s Civil Recourse Theory, 75 FORDHAM L. REV. 1529, 1532 (2006), civil recourse
theory most closely approximates the idealized version of how civil legal systems deliver justice.