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  • Writer's pictureCy Gilman

Against the Punitive Society

Updated: Mar 14, 2021

Bernard Harcourt on critical praxis and abolition.

By Cy Gilman

When I spoke with Bernard Harcourt in mid-December, the Trump administration had just executed Brandon Bernard and Alfred Bourgeois the previous week—two out of the thirteen citizens that the administration would rush to execute in its final year. Harcourt, who has spent his legal career representing death-row inmates—formerly with Bryan Stevenson and the Equal Justice Initiative in Alabama, and now pro-bono—seemed perfectly suited for the political moment.

Illustration by Rea Rustagi

Then again, it feels as if there has been not one point in the last decade in which some facet of Professor Harcourt’s work—as a litigator, educator, critical theorist, activist, scholar—did not strike at the heart of American political life. In addition to his death penalty work, Harcourt has challenged Trump’s Muslim ban, advocated for Standing Rock protestors, defended student protestors at Columbia and other universities. He has written extensively on surveillance, counter-insurgency tactics and statistical profiling in policing, the free market, and much more. At Columbia, where he is the Isidor and Seville Sulzbacher Professor of Law and a professor of Political Science, Harcourt directs both the Holder Initiative and the Center for Contemporary Critical Thought, where he moderates his academic magnum opus, the 13/13 seminar series. For 13 weeks each school year, Harcourt hosts scholar-stars to publicly think through themes like Uprising, Nietzsche, or Foucault—this year’s topic is Abolition Democracy. Indeed, an exhaustive account of Harcourt’s writings, institutional affiliations, and accomplishments could fill a seminar syllabus in itself.

Harcourt's latest book, Critique and Praxis, is at once a compendium of critical theory and a call to action, attempting to reinsert an activist urgency into critical philosophy, and encouraging its readers to ask, “What more am I to do?” One might interpret Harcourt's entire career along these lines—not as a set of individual projects, but as an assault on the foundations of our punitive society. However and wherever that punitive structure manifests —in academia, journalism, economics, policing, the legal system—Harcourt follows.

This conversation has been edited and condensed for clarity.


The Blue and White: I suppose a good place to start: The central praxis of your work is death penalty cases ... and the death penalty, as I’m sure you are aware, has been in the national spotlight quite a bit over the last couple of weeks with the recent series of executions. What do you think is the logic or motivation of the Trump administration in administering these lame duck executions? And what are your thoughts on them more broadly?

Bernard Harcourt: You know, it reminds me of a disturbing passage in Kant's Metaphysics of Morals, where he declares that if “a civil society were to be dissolved by the consent of all its members ... the last murderer remaining in the prison would first have to be executed”—that one couldn’t leave him there alive out of some kind of mistaken notion that mercy somehow devalues rights, the rule of law and our notion of justice. That passage has been really present in my mind as I watch these horrific—just cruel—lame duck executions.

There’s a way in which I understand the evil nature of using the death penalty as a political tool—I’m used to it. Where I practice, in the state of Alabama, judges run for election on the basis of sentencing people to death. That was the way that I understood the original federal executions this past summer during the height of the campaign. There was a way in which those executions made sense, or were comprehensible as purely instrumental political strategies. And that’s not to justify any of them, but to say that, tragically, the death penalty is always used as a political tool, and it’s always used in elections. And it’s not just the politicians we don’t like who do that. Bill Clinton did it with Ricky Rector’s execution in Arkansas. But the idea of a lame duck execution … it's almost gratuitous in its violence and in its obscenity. And that’s, I think, what makes it so—evil, today, really.

B&W: You have the goal of abolishing our punitive paradigm of governing in this country. Here in LA, where I am now, we just elected a DA, George Gascón, who ran on a platform of reducing sentences. And almost immediately as he started doing that, media coverage here was very critical. The most popular justification for the death penalty is something along the lines of “an eye for an eye.” How is the punitive paradigm something that becomes internalized in social contexts and in the populace at large? How does that internalization happen? How do we deal with it? Where else does it manifest itself?

BH: That’s such an important question: How is it that even those of us who believe in a more just, less punitive society so often return naturally to these punitive instincts? And I think that the most troubling and evident exemplar of that is when abolitionists turn to the criminal justice system in order to want to punish and incarcerate police officers accused of killing a Black man or woman. Now, I know and I understand the emotion of wanting to see individual accountability and responsibility. But it’s puzzling to me how even very progressive people, even sometimes abolitionists, turn to the criminal justice system and are justifiably upset when there’s a non-indictment of a police officer in a police killing.

That just happened, of course, with regard to Breonna Taylor’s murderers, who were not indicted, and of course—justifiably, rightly—there was just this sense of betrayal, the sense of appalling injustice in the fact that they weren't indicted. That's kind of the flip side of what you’re talking about, which is just the desire of victims of a tragic homicide to actually see the person executed. I mean, here, we’re even dealing with a more extreme case of people who are not in favor of the criminal justice system, as we used to call it, or the criminal legal system, or what I call now the criminal-legal ordeal … turn to it in order to seek satisfaction or individual responsibility in cases of police killings. Now, how does that happen? It has to be that in this society, the punitive response is so ingrained in us and such a deep part of the fabric of our subjectivity that we simply can't think outside of the box in so many situations.

How does it become so internalized? It’s that it’s everything we see and breathe and hear. It’s every show that we watch on TV or on YouTube—it’s everywhere, pervasive around us. And as a result, it’s the only way that we've been able to conceptualize individual responsibility and consequences. And in part, it’s because we are also caught in a framework of … political liberalism: the idea that individuals have rights and responsibilities, and that we need to think about the framework of those individual rights rather than something about the collectivity or cooperation among people. That model of individual rights means that we can only think about individual accountability and individual responsibility predominantly through a criminal law lens.

B&W: I want to turn briefly to your role as an educator, and ask to what extent your ideas of abolishing the punitive paradigm and the negotiation between critique, praxis, and values, as you’ve described, factor into your teaching in general? To clarify, I’m not speaking about the content of your teaching, but rather methodology and structure.

BH: On that score, I would say that there are certain institutional constraints that limit my ability to put into pedagogical practice all of my critical-theoretical beliefs—and that’s probably a big problem that I don’t sufficiently contest, fight, and struggle against. So, for instance, at the Law School, there’s a curve—an imposed curve. And this has been true in other institutions that I’ve taught at as well—University of Chicago, Harvard, elsewhere. The notion of a curve, to me, violates everything I sincerely believe in about knowledge, the relationship between knowledge and power, and everything I aspire to in terms of transforming the world and working with colleagues—and when I use the word “colleagues,” I mean students. I think that the curve is a piece of the punitive society, and that it does violence to the reality of knowledge—but I think it also violates my normative precepts of social justice and solidarity. I mean, it’s essentially suggesting that reality has to conform to a normal curve, in a way, and that's just fiat ... that’s a decree—it’s not a reflection, necessarily, of reality.

B&W: You said that the curve “does violence” to some principle you hold dear. The word “violence” is one that’s been very contested this year in particular, and one that seems to have acquired a separate meaning among political scholars and activists than might be used as common terminology.

BH: Yeah. So in Critique and Praxis, I think I spent about three chapters dealing with the notion of violence. And what I try to suggest there is that the conventional liberal-political-theoretic understanding of violence as being limited typically to physical criminal activity is deeply misleading, and that there’s much more violence in society, much of which we don’t call violence.

So I would identify, for instance, the water in Flint, Michigan as having been an instance of violence, a way in which people are deeply affected by political choices and political structures.

So, specifically, for the term “violence,” I think that I use it in a particular way having to do with the imposition of values on other people. And in part, that has to do with the normative importance of values in my way of thinking and the radical theory of values that I try to develop. That imposition of values is doing violence, which is why I would use it in the context I just did.

B&W: I wanted to touch on this year’s 13/13 series about abolition. Each of these individual seminars talks about a form of abolition that is probably somewhat familiar in popular discourse —abolish the police, prison abolition, abolition of slavery. Is there an idea of abolition, as a concept, that has some valence on its own—that is a common thread throughout everything, beyond the specific object that is to be abolished?

BH: Yes, the common thread is this concept of abolition democracy, which W. E. B. Du Bois wrote about in his magnum opus, Black Reconstruction in America, which was published in 1935. It had two different connotations in the book. One connotation was much more idealistic: It was an idea … an ambition to achieve this ideal of racial justice. And basically, I interpret it as a three-fold ambition:

First, there’s this negative dimension of trying to get rid of institutions of injustice, whether it's slavery or convict labor or segregation.

Then there’s a second, positive dimension, which is the idea of trying to imagine, prefigure, and establish more just institutions. And, in part, of course, it’s the failure to do that that Du Bois identifies as being the failure of abolition: that abolition never put in place those necessary institutions to make it possible for persons who were being freed from slavery to actually be on an equal footing as other persons, and so equality was never achieved; racial justice was never achieved.

And then the third dimension is the fact that there needs to be a transformation of the economic incentives and the economic structures themselves: the broader political economy of society. The idea there ... is that if you don't change the economic incentives, but you get rid of slavery, the system will simply find other ways to recreate slavery—that was the criminal justice system, the creation of convict leasing, plantation prisons. They stepped in to replace slavery, because the economics of the cotton industry hadn't changed in any way. So, somehow, you need to have a broader transformation of political economy in order to achieve abolition democracy.

So that’s the ambitious idealist view of democracy in Du Bois’s work. And then there’s also a more realpolitik idea of abolition democracy: that actually it was a certain bourgeoisie, a combination of small-time capitalists and certain propertied interests, that wanted to see abolition happen. And so there was more of a political dimension to it: not just the idealism and not just the ideas, but class interests.

The book Black Reconstruction in America addresses a number of the individual objects of abolition, as you mentioned, such as slavery, the punitive society, the crime and punishment mechanisms that were constructed to replace slavery. There’s even some discussion of questions of the police in there as well. But what ties all of these individual topics together is the broader category of the ideal or the theory of abolition democracy. So when we’re studying, for instance, questions of property, which we did in December, reading Proudhon, reading Marx, when we were talking about the questions of capital and capitalism in December, as well, reading works by the Frankfurt School about Nazi Germany ... what ties together those conversations is trying to see how the framework of abolition democracy can shed light on individual struggles, can make sense of, and change the way we think about individual struggles.

To be a little bit more concrete, one could focus only on the abolition of capital punishment—a lot of people do. My background is in death penalty litigation, so I’m very familiar with discourse that really looks at abolishing the death penalty as the first and most important thing to abolish in the context of the criminal-legal ordeal, or what used to be called the criminal justice system.

Now, when you approach the death penalty from that perspective, one of the things that happens is that you are pretty much obsessively trying to get rid of death sentences and replace them with life imprisonment without parole. Having been very close to executions, it’s understandable that one would want to avoid that at all cost. But of course, there’s a whole debate that arises about what life imprisonment without parole is like, and whether that really is progress. Now, I can assure you that from my perspective, having gone to an execution, that anything short of an execution is better than the alternative. But if one takes a broader view about democracy, and thinks about the abolition of the punitive society more broadly, then I think you think differently about the abolition of capital punishment. It makes it harder to be satisfied with escaping the execution chamber and creating a living death sentence. So it’s in thinking about the interconnections that one can, I think, change the way any one of those individual movements conceptualizes, develops an understanding of self and conceptualizes the world.

B&W: I guess the last major question I have is: Your will to move action into the realm of critical thought reminds me a lot of Columbia’s particular reputation as a hub of activism. And yet what’s interesting about that is many of Columbia’s most well-known activist campaigns, such as the 1968 protests, or the campaign to divest from private prisons more recently, have often been against things that the school itself has done. We see this now with students responding to the Manhattanville expansion as well. How do you reckon with Columbia, specifically, as simultaneously an institution that enables social change and is also an institution of power? And secondly, how do you, as a practitioner, negotiate between trying to advocate for various kinds of abolition and working within institutions of power, such as the criminal-legal ordeal, as you put it, and the University?

BH: You know, I think that your question raises the overarching issue that is, in a way, captured by the slogan, “Think globally, act locally.” At least, it raises the question of—the challenge of—how much of one’s political action should be addressed at these broader social problems in relation to the local manifestations and reflections of those problems in one’s immediate institution. And I think for me, that has always been a difficult challenge, because I have generally been interpellated, been called upon, by social problems that are at a very broad societal level, such as the death penalty, or such as the punitiveness of policing.

Now, of course, some of that is completely local. So, for instance, on policing: We’ve experienced that at a local level. We experienced that when there was the incident at Barnard involving racial profiling. So for some of these issues, there’s a direct local link. For some others of these issues, there really isn't. I’m not sure how Columbia is implicated in my death penalty cases in Alabama. I don’t think Columbia is implicated in my case involving a person detained at Guantanamo. And so when I’m working on the Guantanamo case, or when I’m working on my Alabama death penalty case, I don’t really feel the local as pressing on me.

But that doesn't mean, of course, that I don’t get involved at a local level when those issues do, then, intersect with Columbia University, and without breaching any confidence, it has involved, in the past, representing students accused of disciplinary violations involving protest or occupations. Both in Chicago and at Columbia—I was deeply involved in representing a group of graduate students who were arrested at Occupy Chicago, and students at Columbia involved in the conduct of the divestment efforts, or Johns Hopkins, during the occupation of Garland Hall. Those are all important parts of praxis that are completely local but that tie into the broader ambition to get rid of our punitive society.

There’s another element to your question, though, which—I think you're being somewhat polite or roundabout—in a way, raises a question of my own implication in the institution. In other words, being part of an institution, as a faculty member of an institution that has some semblance of faculty governance—how do I think about that?

Well, first of all, let me just say: Naturally, I struggled with these issues, and I’m sure I’m not fully satisfied with my own taking of responsibility for a lot of the ways in which I am part of an institution that is involved in so complex, and often not just uncomfortable, but unacceptable, relations with the community and external partners. And there are times when I feel that I’m spending too much time on my other praxis, whatever it is—the litigation involving Standing Rock protests or the Guantanamo case or whatever—and not enough time addressing, at home, in my own institution, things that I would find problematic.

But here’s something else that I feel strongly about. I’m not entirely sure how to understand it completely—but I will say that the notion of an institution has a way of reifying, in a problematic way, the actions of individuals, and I think that often, when when we think and when we talk about Columbia University, we are misleading ourselves into thinking that there is this monolithic institution called “Columbia” that is doing something, when, in fact, what we face, really, are a lot of human choices, individuals, groups who are doing things.

I think sometimes, it’s dangerous to reify institutions because, first of all, that hides the fact that there are a lot of different and conflicting efforts and projects within Columbia. When we talk about Columbia University, I think it’s important not to anthropomorphize an institution; it’s important to remember that institutions are just a bunch of people who act in an official capacity, but that even within that, there are going to be groups that are pushing in different directions. And I think it’s important to do the work to see who is actually pushing in what direction, so that it’s not simply a question of asking, “What is Columbia University? What is Columbia University's relationship to the community?” Because there are lots of different persons, entities, centers, groups, administrators within Columbia University that have different relationships to the community.

I think, for instance, of the Center for Justice, which really tries to bring the community into its work on questions of the punitive society, which really tries to bring persons who were formerly incarcerated into the life of Columbia as students, as Justice-in-Education fellows. So you can’t just talk about Columbia University having a bad relationship with the community. I think that elides the question of “Who is it that's not paying sufficient attention to the community interests and who is it that is paying attention?” And so it’s doing a disservice, in a way, to both, because there are people and faculty members and centers and institutes that really are trying to develop positive engagements and exchanges with folks from the community, or folks who become part of Columbia that way.

The 11th seminar in the Abolition Democracy 13/13 series, Abolish Oil, will take place on March 11th at 6:15PM EST.


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