Dignity and its discontents: Towards an abolitionist rethinking of dignity
| Author | Jonathan Simon |
| DOI | 10.1177/1477370820976578 |
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
research-article2020
Special Issue: Human rights, prisons and penal policies
European Journal of Criminology
2021, Vol. 18(1) 33 –51
Dignity and its discontents:
© The Author(s) 2020
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Towards an abolitionist
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DOI: 10.1177/1477370820976578
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rethinking of dignity
Jonathan Simon
UC Berkeley, USA
Abstract
As we approach the decade anniversary of the US Supreme Court decision in Brown v. Plata (2011), it
is perhaps a good time to take stock of some of the optimism expressed by this author (Simon, 2014)
that the landmark prisoners’ rights decision, with its stark condemnation of the toxic combination
of chronic illness, medical neglect, and overcrowding so typical of American prison systems in the
era of mass incarceration, and its rhetorical invigoration of ‘dignity’ as a constitutional value, could
play a role in taming mass incarceration in the United States. In doing so, part of the inquiry is
juridical and jurisprudential. Did the opinion move the court system towards more protection of
human rights for prisoners? The second aspect of the question is cultural and political. At a time of
unprecedented public interest in reforming the criminal legal system in the United States, has the
language or rhetoric of ‘human dignity,’ along with the problems of illness and overcrowding that the
Plata case called national attention to, played a role in the foment? The Black Lives Matter movement,
a major force in the street protests against policing in the summer of 2020, emerged just two years
after Plata and, completely independently, has revitalized abolition discourse in the United States,
leading to popular calls to ‘defund’ the police. To what extent should abolition and other goals of the
movement for racial justice, supplant human dignity, with its liberal legal genealogy, as a meaningful
lodestar for legal and political efforts to end mass incarceration? As an essay in normative sociological
jurisprudence, my answers will be both descriptive and prescriptive.
Keywords
Dignity, abolition, prisoners’ rights, mass incarceration, colonialism, slavery
Introduction: Does dignity matter?
The decade anniversary of the US Supreme Court decision in Brown v. Plata (2011) in
Spring 2021 provides enough distance to revisit the considerable optimism (some might
Corresponding author:
Jonathan Simon, U C Berkeley, School of Law, 215 Bancroft Way, Berkeley, CA 94707, USA.
Email: jsimon@law.berkeley.edu
34
European Journal of Criminology 18(1)
say naivety) I expressed (Simon, 2014) that the landmark prisoners’ rights decision
marked a turning point away from mass incarceration in the United States. The decision
had a very significant effect on California, where its cap on the prison population forced
the state to begin a process of sentencing reform that has not run its course. But, unlike
human rights courts elsewhere, the decisions of the US federal courts are, with very rare
exceptions, narrowly limited to the specific state correctional system (or sometimes
even the specific prison). What effects can we find for Plata outside of the gigantic
California system? The opinion combined vivid condemnation of the toxic combination
of chronic illness, medical neglect, and overcrowding found in California, but so typical
of many American prison systems in the era of mass incarceration, with rhetorical
invigoration of ‘dignity’ as a constitutional value. Beyond its precedential value to simi-
lar factual circumstances, could this combination embolden courts or legislatures to act
against mass incarceration?
As a legal decision, the case undeniably played the major role in driving California’s
steep prison population decline during the first years of the decade, when the state
responded to the beginning of a two-year time clock for compliance with a court-ordered
population cap by adopting important sentencing reforms. In turn, California represented
a major portion of the national imprisonment drop during the decade. But the immediate
effects of Brown v. Plata are behind us now, and its author, Associate Justice Anthony
Kennedy (for a time the Court’s most influential justice as its fifth ‘swing’ vote between
the Court’s then evenly divided liberal and conservative wings), retired to be replaced by
an appointee whose commitment to human dignity as a legal value is uncertain at best,
and a second very conservative justice opening the Court to reversing recent precedents,
including Brown v. Plata.
When we turn to the cultural and political fields, the decade since Plata has seen
escalating public opposition to the criminal justice system, mostly focused on policing
and especially police use of deadly force against Black and Indigenous people and
People of Color on American city streets. Much of this social movement has been led
by a loose network of activists known as the Black Lives Matter movement, which first
emerged after the death of Trayvon Martin, an unarmed Black teenager, in Florida in
2012 at the hands of a self-appointed neighborhood watch leader stirred national out-
rage (compounded by police handling of the case and the eventual acquittal of the man
who killed him).1 This movement expanded even further in the Spring of 2020, after
video emerged of a Minneapolis police officer choking the life out of an unarmed Black
man with his knee for over nine minutes. In the aftermath of the movement’s crest in the
Summer of 2020, the discourse of criminal justice reform has been transformed by seri-
ous discussion of abolitionist positions for the first time in decades. Plata, which
enshrined overcrowding at less than 137 percent of a prison’s design capacity as consti-
tutional, comes up very short by the standards of a social moment that has moved on to
talk of abolition.
For different but perhaps not unrelated reasons, the COVID-19 pandemic, which has hit
confined populations especially hard in the United States and prisons in particular, has
placed Plata’s overcrowding math into a past that now seems shockingly insensitive to
the danger of disease in prison, despite generations of ill-health behind bars. Recently,
for example, a unanimous three judge panel of the California Court of Appeals, First
Simon
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Circuit, ordered the California Department of Corrections and Rehabilitation to reduce
the population of one prison, stricken hard by COVID, to half of its current population (far
below the Plata cap) (In re Ivan Von Staich, 2020).
With these developments in mind, it is fair to ask whether human dignity, with its
liberal genealogy and association with the European history of colonialism and slavery,
can serve as a meaningful lodestar for legal and political efforts to end mass incarcera-
tion, with its deep anti-Black orientation (Muhammad 2019; Hinton, 2016). Applying a
mode of inquiry I have called normative sociological jurisprudence (Simon, 2014), my
analysis takes seriously jurisprudential developments, including the reasoning of impor-
tant constitutional or human rights courts, not simply for their legal force but for their
normative intervention in politics and society. In seeking not just the influence of Plata
but its prescience, I look first to the legal domain, and especially the federal courts,
which in the United States play a disproportionate role compared with other countries in
protecting prisoners’ rights and where one might expect a landmark Supreme Court deci-
sion to have the most immediate effect. There the language of human dignity appears to
encourage courts to intervene where the facts point to inhuman conditions imposed upon
imprisoned people. In a sense that is nothing new (Feeley and Rubin, 2000), but suggests
a modest return towards a norm of human rights enforcement first established in the
1970s but that went into decline in the 1990s.
Whether this small trend continues or not, it is likely to be modest in its impact. The
not so secret power of the judicial branch in American democracy has often been to sig-
nal a cultural shift that will ultimately have its most significant ramifications in political
and social changes (Klarman, 2006). The most famous example is Brown v. Board of
Education, whose legal mandate to integrate schools with ‘all deliberate speed’ lan-
guished until backed up by federal legislation and a national consensus against segrega-
tion a decade later (Rosenberg, 2008).
A decade out from Plata, its vivid call to recognize that prisoners retain their essential
human dignity has arguably found its most powerful expression in the Black Lives
Matter movement and the renewed discourse of abolition (Cullors, 2019; Davis, 2020;
Kaepernick, 2020). Here the language of dignity is an integral part of reclaiming margin-
alized communities from an overextended carceral state but with a very different, far
more robust, conception of dignity. I argue here that the long-term success of dignity as
a legal tool against mass incarceration in the United States depends on an enrichment of
the cultural meaning of dignity coming from the abolition movement.
Dignity and its discontents
Before we turn to the inspiring universalist language of ‘human dignity’ in Brown v.
Plata (2011), it is important to consider why many, especially many people in communi-
ties of color, queerness, and economic...
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