What Is a Prison?

Grace Y. Li* April, 2024

A review of The Idea of Prison Abolition. By Tommie Shelby.

The Idea of Prison Abolition. By Tommie Shelby. Princeton University Press. 2022. Pp. 248. $29.95.

Introduction

Tommie Shelby’s The Idea of Prison Abolition¹ sets out to translate for a popular audience arguments for and against prison abolition. Prison abolition is a social movement and policy agenda that has generated considerable conversation and popular appeal, particularly in the wake of the protests following the police killings of George Floyd, Breonna Taylor, and others.² Shelby’s aim is “to see what can be gained, philosophically and practically, from taking abolitionist ideas seriously” (p. 5). In doing so, he relies solely on Angela Davis’s works to compile and rearticulate the main arguments for abolishing prisons.

Shelby describes his book as containing his reflections in “thinking through whether to adopt abolition as [his] own philosophical and political stance” (p. 4). Shelby identifies problems that abolitionists raise, including that prisons dehumanize people; prisons are a legacy of slavery; and prisons’ true functions are economic exploitation, racial subjugation, political repression, and concealment of social problems (pp. 16, 44, 87). Although he highlights the abolitionist frameworks and ideas he finds useful, he ultimately concludes that prison abolition is not the solution required to fix these problems and instead endorses prison reform (pp. 15–16). Shelby caveats that he wishes for the book to help readers seriously consider the best arguments for abolition—but some readers may view the book as the authoritative case against abolition, given that Shelby is a prominent philosopher, Harvard professor, and Black public intellectual.

The first appeal of this Review is to take Shelby at his word—to use the book to work through arguments for and against abolition without assuming Shelby’s conclusion is the only possible answer. Like Shelby, I used the book to think through my own views. I have long identified as a prison abolitionist, but I came to Shelby’s book to refine my stance. Was I a prison abolitionist—or also an abolitionist of other things, like carceral punishment,³ punishment more generally,⁴ penal law,⁵ or the state⁶—and why? Why isn’t Shelby? What would constitute abolishing prison, and how would we know if it had been abolished?

No one text could definitively answer these questions, and Shelby does not set out to do so. At the outset, he defines the boundaries of his project. Rather than addressing the more fundamental question of whether prison or something other than prison should be abolished, Shelby analyzes arguments about prison abolition. Shelby devotes a chapter to the prison industrial complex (ch. 4), which is what Davis wishes to abolish,⁷ but, throughout the book, Shelby trains his focus on prison.

Shelby’s book furthered my thinking by helping me dissect and examine what prison is. In this Review, I argue that Shelby’s most helpful, perhaps most understated, contribution in the book is his definition of incarceration. This Review focuses on that definition, rather than exhaustively assessing Shelby’s arguments. To abolish prison—and the prison industrial complex—we must first know what we mean by prison and what practices and ideas we aim to abolish.

This Review begins, in Part I, by presenting Shelby’s definition of prison, evaluating it, and revising it. Part II briefly outlines Shelby’s arguments against prison abolition. To summarize, he defends prison’s utility as a tool to deter, incapacitate, and rehabilitate. He also suggests that prisons can be reformed to no longer dehumanize, to discontinue racial oppression, and to cease to be driven by profit. He argues that alternatives to incarceration rely on the threat of incarceration to work. Part III then recasts and analyzes Shelby’s arguments through the lens of my definitional framing.

I. “Prison Is the Sinner’s Bouquet” and Other Things

Prison is many things. A prison is a building.⁸ To be in prison is a condition of “captivity,” “confinement,” and “deprivation.”⁹ Prison is an idea: for Michel Foucault, “an exhaustive disciplinary apparatus,”¹⁰ and for Ruth Wilson Gilmore, a “partial geographical solution[] to political economic crises, organized by the state, which is itself in crisis.”¹¹ Prison is an institution, which, as Angela Davis describes, “has stockpiled ideas and practices.”¹² These include acting as a “last resort social service”¹³ and a site of punishment.¹⁴ Most importantly, for those who are and have been confined, prison can be much more—poet and lawyer Reginald Dwayne Betts writes:

Prison is the sinner’s bouquet, house of shredded & torn
Dear John letters . . .
Scarred wings flying through smoke . . . ¹⁵

Shelby, too, attempts to articulate what prison is. He begins his analysis by defining the term and explaining that “[b]ecause prison conditions vary and some prisons are better than others, to decide whether to be a reformer or an abolitionist, it is necessary to know what a ‘prison’ is and not just what some prisons are like” (p. 46). Constructing a definition, he suggests, can help identify which parts of prisons can be changed without abolishing prisons altogether (p. 46).

To build on this explanation, it is also important to define “prison” when considering abolition. When we talk about abolishing prisons, what it is it we mean to dismantle or destroy? One immediate answer is to abolish everything! But that begs another question: What does everything entail? Prison has many features, countless of which are dehumanizing and injurious.¹⁶ At the same time, by accumulating different and sometimes-conflicting functions, prison has also come to be a provider of services like college education¹⁷ as well as housing and healthcare for more than a million people in the United States.¹⁸ These features have some positive, life-affirming impacts in spite of the harms of prison.¹⁹ Therefore, even if we abolish prison, we should preserve or replicate these mechanisms of provision through means not tied to the criminal legal system. Thus, one question is: If we abolish prison, should anything remain and, if so, in what form?

From a practical standpoint, another question is about where to begin. In the long journey toward a world without prisons, abolitionists have been making “non-reformist reforms,” a term referring to transformations that move toward abolition by “advancing more collective modes of governing public life and addressing social problems”²⁰ while reducing harm to people in prison.²¹ With so much work to be done, even with harm reduction as a guiding principle, how do we choose our focus? What would make the most impact or best further the people’s abolitionist mission? What is the heart of the prison—so we know where to strike?

Defining “prison” is important for identifying what specifically about prison we wish to do away with. As Angela Davis wrote,

When we call for prison abolition, we are not imagining the isolated dismantling of the facilities we call prisons and jails. . . . We proposed the notion of a prison-industrial-complex to reflect the extent to which the prison is deeply structured by economic, social, and political conditions that themselves will also have to be dismantled.²²

One entry point into understanding this set of relationships is to identify how they manifest within prison and what may remain of them even when the institution or structure is gone.

A. Shelby’s Elemental Definition of Prison

Shelby constructs an elemental definition of prison to distinguish “which features of prisons are necessary characteristics”—“the elements that make a prison a prison”—from “features [that] are merely contingent and thus can be discarded or altered without dismantling the prison system entirely” (p. 46). He first defines prison as an “incarceration facility that functions to impose punishment” (p. 49). He then defines incarceration by listing its necessary elements (pp. 47–48). Although “element” is sometimes used colloquially to mean “aspect,” “element” here is like a load-bearing column holding up a roof: If any column is removed, the roof falls. Accordingly, Shelby recognizes that if any element is missing, then the thing being described is not incarceration.

The project of identifying the essential elements is particularly powerful in considering abolition, because many abolitionists aim to abolish prison “as we know it.”²³ Once we have a list of the essential component parts of prison, taking away any one element would result in something that is no longer prison “as we know it.” I encourage others to critique, edit, and add to the elements both Shelby and I offer.

B. Shelby’s Elements

In forming his definition of prison, Shelby first defines incarceration. He does so by listing five essential elements of incarceration:

1. “involuntary confinement” or “restriction to a limited space with no right to leave without permission from authorities”; in

2. “an enclosed space with a physically secure perimeter”; with

3. “a hierarchical institutional practice defined by a set of rules, roles, and goals”; such that

4. people are “isolated from the general public . . . (and sometimes from one another)” with limits on their “rights to visitation and to communicate with those outside (and sometimes within) the facility”; in

5. “the custody of carceral authorities” (p. 47; emphases omitted).

Then, Shelby defines prison as an “incarceration facility that functions to impose punishment.”²⁴ I focus on the definition of incarceration and then briefly discuss the definition of prison. In defining incarceration, I reconfigure Shelby’s list of elements by keeping elements one and four, part of element two, and adding an additional element about time, which encompasses Shelby’s third and fifth elements. To test the elements, imagine removing each one while the rest remain. I will do so, first, with Shelby’s elements that I am adopting in my definition of incarceration: elements one, two, and four.

Shelby’s first two elements—that incarceration requires (1) “involuntary confinement” (2) “in an enclosed space”—are the bedrocks of definitions of incarceration. Many people might intuitively define incarceration as the loss of freedom of movement or being locked up. These elements approximate those ideas and the dictionary definition of incarceration.²⁵ Without “involuntary confinement,” people would be voluntarily confining themselves and could leave as they pleased. If people were not involuntarily confined but were still in an enclosed space with a hierarchical institutional practice away from the general public and under custody of authorities, the setting might be more akin to a boarding school or drug rehabilitation center.

Shelby’s second element is made up of two ideas. The first is that people are in an “enclosed space.” This refers to the buildings, or sites, that we call prisons. If not “enclosed,” the space would resemble a penal colony, such as the colonized lands (including parts of what became the United States and Australia) where the British and French Empires deported people convicted of crimes.²⁶ Deportation causes its own set of harms—some of which are related to the harms of incarceration, including breaking the social bonds of people who are convicted—but it is distinct from imprisonment.²⁷ One difference between deportation and incarceration is that many of the harms of incarceration result from forcing people to live in close proximity to one another—something that is not inherent in deportation.²⁸

The next portion of Shelby’s second element is that the perimeter is “physically secure.” This feature is related to the involuntariness of confinement, described in element one, but magnifies the violence of the institution: There are walls, barbed wire, locks, and armed guards who would shoot anyone they perceive to be escaping. If this part of the element were removed, but the rest of the elements remained, the setting would be more akin to a hospital in which someone was involuntarily committed. Many hospitals secure the perimeter to monitor and regulate who is coming in and out of the building;²⁹ Shelby himself includes involuntary commitment as one form of incarceration.³⁰ But there is something unique and essential about the state’s willingness to use physical—even deadly—violence to secure prison grounds.³¹

Because securing the perimeter through use of deadly violence does not apply to all forms of incarceration, I revise Shelby’s account by removing this portion of element two from the definition of incarceration and adding it to the definition of prison. Prison, then, under my reframing, would be an incarceration facility with a perimeter secured by violence that functions to impose punishment.

Shelby’s fourth element is that people who are incarcerated are isolated from the “general public.” This, too, is a core aspect of incarceration. In prison, people must live with others who have been sentenced to prison in a facility staffed by people who work but do not live there. If this element were removed, but the others remained, the setting might be home confinement. I am not arguing, however, that home confinement is not carceral, should not be abolished, or lacks what is damaging about incarceration.³² My purpose is instead to sharpen an understanding of what incarceration means.

C. The Element of Time

Here, I pause to add an element that Shelby does not include³³: “[F]or a continuous period of time.” Even short periods of incarceration can have serious impacts on a person’s life. I use the term “continuous” to mean the person is living in an incarceration facility rather than visiting. This element conforms with how prison terms are normally sentenced in the United States: a continuous time of months or years.³⁴ What might be experienced in a discrete appointment as discomfort and injury can be exacerbated by constant exposure to become inescapable, life-changing, and sometimes life-taking, degradation and ruin.³⁵ Imagine a world in which people were sentenced to spend one hour in prison a week for some number of weeks, and, outside of that, they lived their lives in the free world. That hour every week would be a punishing session—but by virtue of not being one’s full-time environment, and instead a place to temporarily occupy, prison would radically transform in its impacts, functions, and operations.

If prison were not a full-time residence, it would not operate as a total institution. In total institutions, “all aspects of life are conducted in the same place” and under the same authority. Those in total institutions are confined with other people in the same position, under a rigid schedule and “explicit formal rulings” set by those in charge, to fulfill “the official aims of the institution.”³⁶ Many of the defining horrors of prison flow from the fact that the prison must provide for all aspects of life. Prisons make up the sole environment in which people sleep, eat, work, and pass their time. And within them, people experience social, emotional, physical, sexual, spiritual, and all other manner of needs.³⁷ If prisons did not have to provide for all needs, their failures would have smaller impacts on life outcomes.

Prison’s associative limitations would not apply if sentences were not served for significant amounts of continuous time. Currently, prisons force involuntary association between people who are made to live together, sometimes in the same cell.³⁸ Simultaneously, they limit voluntary association inside and outside the prison. Prisons dictate who can associate with whom by controlling physical movement and placement. They employ rules about when, how, and which groups can gather, and they isolate individuals through practices like solitary confinement.³⁹ Prisons also limit visitation, phone calls, emails, and letter writing and employ bans or near-bans on internet use.⁴⁰ If prison sentences were not continuous, a person’s social life and associative possibilities would not be disrupted in such an all-encompassing way.

In the name of protecting safety, preventing escapes, and enforcing order and discipline, prisons also disrupt privacy. Prison staff conduct searches of people’s bodies—sometimes including strip searches—and their cells and living spaces.⁴¹ They censor reading and writing materials, and they confiscate items deemed contraband.⁴² They surveil people when they sleep, shower, and use the restroom.⁴³ If people did not go to prisons for continuous amounts of time, these privacy violations would be significantly lessened and contained—once the person left, the invasions would cease.

Moreover, if people were not forced to live in prison, they would not be solely defined by the status of “inmate.”⁴⁴ Although time spent in the hypothetical non-continuous prison might confer such a status, their lives would not be built around that status. It would be one of multiple identities to inhabit, such as that of a parent or sibling, a professional, or a member of a community not oriented around incarceration. In contrast, the total institution of prison enforces the primacy of the “inmate” status over all other identities.

Prison life also takes away autonomy by removing choice in what people eat, wear, and do.⁴⁵ If people did not spend all their time in prison, their loss of autonomy would be less severe.

D. Secondary Elements

Shelby’s third and fifth elements of incarceration flow from the element of serving continuous time. Shelby’s third element, that incarceration includes “a hierarchical institutional practice defined by a set of rules, roles, and goals” (p. 47; emphasis omitted), describes the organizing structure that tends to arise by virtue of running a live-in institution.

I am not convinced that such “hierarchical institutional practices” are always part of incarceration. Correctional staff often employ rigid hierarchies and strict explicit rules, especially in the United States.⁴⁶ Even where gangs functionally run prisons, gang leaders employ similarly strict rules and hierarchies.⁴⁷ However, if a prison ceased to have such hierarchical institutional practices, the people within would still be incarcerated: They would be prevented from leaving under threat of death and would remain reliant on the government for their material needs. For instance, during the Attica uprising, the men incarcerated in the Attica prison took over the D Yard, overthrew the prevailing order, and temporarily set aside the staff hierarchy and traditional institutional rules, roles, and goals.⁴⁸ They created a representative democratic self-governance system that did not rely on a hierarchical structure.⁴⁹ At the same time, the men were still incarcerated. They were involuntarily confined in an enclosed space: the heavily guarded prison grounds.

Similarly, if a prison was not ruled by a hierarchical institutional practice and instead had no rules, it would still be an incarceration facility, though an anarchic one. If we were to take away the governance structure in prisons and the rules governing daily life and discipline, the people within them would still be held against their will in a location away from the public and kept there under threat of death. Because Shelby’s third element is not a requirement of incarceration, I do not include Shelby’s third element as a stand-alone element in the definition.

Shelby’s fifth element, that people who are incarcerated are “in the custody” of “carceral authorities,” is also a consequence of people spending continuous time in prisons. The state has a duty to ensure the health, wellness, and safety of people in custody due to their inability to provide for their needs themselves.⁵⁰ If people did not live in prisons, there would be no need for such a duty. Moreover, if we imagine a situation where Shelby’s fifth element was eliminated and carceral authorities did not have a duty to provide care to people in prison and instead merely prevented them from leaving, the people would still be incarcerated.

In summary, my modified list of necessary elements of incarceration reads:

1. Involuntary confinement;

2. in an enclosed space;

3. away from the general public;

4. for a continuous amount of time.

Recall that Shelby defines prison as an “incarceration facility that functions to impose punishment” (p. 49). Incorporating that definition, the full modified definition of imprisonment would be “involuntary confinement, in an enclosed space, with a perimeter secured by physical violence, away from the general public, for a continuous amount of time, that functions to impose punishment.” Removing any of these elements would drastically change prison such that it would no longer be prison “as we know it” (p. 8).

E. Prison as We Know It

The definition above provides a list of constitutive elements. Still, with any one element removed, the resulting institution could become another version of prison. Shelby warns, rightly, that our unjust society is a “homeostatic system” whose “characteristic injustices endure because changes in one part of the system are adjusted for elsewhere such that oppression is maintained” (p. 110). Angela Davis similarly writes that “the prison industrial complex is much more than the sum of all the jails and prisons in this country” but rather “[i]t is a set of symbiotic relationships among correctional communities, transnational corporations, media conglomerates, guards’ unions, and legislative and court agendas.”⁵¹ The point of abolishing prison is to permanently stop the material harms of prison: the pain and hardship it causes for the people incarcerated and for everyone their lives touch. It may not be enough to create an elemental definition of prison and then aim to remove an element, thereby abolishing prison in some sense but leaving intact forms of near-incarceration that still cause pain and harm to people in similar ways.

Thus, a useful understanding of what we seek to abolish must include prison’s harmful impacts on people. The elements from the previous Section define the structural conditions that make prison prison—they describe, essentially, spatial separation over time. This Section describes the substantive harms that have come out of those structural conditions. The list categorizes key features of the experience of incarceration—harms that incarcerated activists work against.⁵² However, these same harms may result from other structural conditions or institutions as well; so, while the first step is to abolish prison to stop its harms, we must be wary of whether alternatives cause the same harms.

The concept of the prison industrial complex is useful for focusing on the impact, rather than the institution, of prison. Davis writes, “Alternatives that fail to address racism, male dominance, homophobia, class bias, and other structures of domination will not . . . lead to decarceration and will not advance the goal of abolition.”⁵³ To add to the harms that Davis highlights and the elemental definition outlined above, this Section names four types of prison’s harms, previewed in the previous Section: loss of the freedoms of movement, association, privacy, and autonomy.

Shelby discusses certain harms of prison largely to argue that they do not outweigh prison’s benefits and that many of them can be addressed through reform. He argues that prisons’ dehumanizing aspects can and have been reformed, including practices around architecture; overcrowding; ventilation; temperature; lighting; staffing; medical care and health conditions; ability to associate more regularly with others in and out of the prison; and violence (pp. 57–58). But Shelby acknowledges other, more fundamental losses people experience in prison without focusing on them: the freedom of movement, the freedom of association, and privacy (p. 74). To the list I add loss of autonomy. I argue these losses, in conjunction with the elemental definition of incarceration, should be considered a part of our understanding of prison.

The stated purpose of imprisonment is the deprivation of the freedom of movement.⁵⁴ The deprivation of the freedoms of association, privacy, and autonomy are other harms of prison that, unlike ventilation or staffing, cannot readily be reformed because they result from the essential elements of prison.

By its very nature, prison disrupts and limits the freedom of association and fractures relationships—an inevitable consequence of running an institution that confines people against their will. Association is a fundamental human quality and key to human flourishing.⁵⁵ Humans are social creatures, and being kept from having, developing, and maintaining relationships is one of the dehumanizing aspects of prison.⁵⁶ Prisons isolate people from their families, communities, and often their home cities;⁵⁷ severely limit visitation;⁵⁸ contract with extractive telephone companies that make calls prohibitively expensive;⁵⁹ and use increasingly anachronistic internet-free or closed-universe internet systems.⁶⁰

Prison keeps people from potential new relationships with people on the outside. The isolation extends to all aspects of life, as people cannot leave prison for schooling, most medical examinations, or even family deaths.⁶¹ Nor are people allowed, in most cases, to leave for work; instead, they have a limited range of jobs,⁶² which in turn limits their ability to choose the associates with whom they learn and create their professional identity. Prisons also surveil and control physical movement.⁶³ Even if allowed outside their housing units or cells, people are escorted and, in some cases, shackled.⁶⁴ These limitations on physical placement and movement within prisons further limit who can voluntarily associate with whom and when. Moreover, prisons, by definition, force involuntary association between those who are housed within the same units. Continuing lockdowns due to the COVID-19 pandemic have exacerbated both forced and limited association.⁶⁵

Relatedly, prisons disrupt privacy. People’s bodies and living spaces are surveilled and searched,⁶⁶ and they lack sound and visual privacy in their living quarters.⁶⁷ Overlapping with the loss of freedom of association, the contents of relationships with spouses, sexual partners, and family are scrutinized and controlled.⁶⁸

People in prison experience some loss of autonomy through control over the formation and expression of identity. Much of identity is based on associations, social relationships, and choices people make while trying out, living, and expressing personal values and ideals.⁷² Further, in prison, people are forbidden from choosing their clothing and many ways of modifying their appearance.⁷³ Another aspect of the loss of autonomy happens through living a routine imposed by an external force and losing opportunities to make choices, including choosing how to spend one’s time. Incarcerated workers cannot choose their jobs⁷⁴ and must work within the prison for wages orders of magnitude below the legal minimum on the outside.⁷⁵

Prison reforms can ameliorate some of these losses. Prison staff could give people more freedom to associate with each other as well as with people outside. They could refrain from doing invasive cell searches or strip searches. People in prison could be given more opportunities to choose their activities and to develop and express their identities. They could wear clothing of their own choosing and be called by their names instead of numbers.⁷⁶ But these mitigation efforts would not eradicate the harms that flow from the structural elements of prison, particularly the element of spending continuous time in the institution. In some ways the harms happen by design. As Shelby describes, “[T]he prison is an institutional apparatus of captivity, surveillance, and social control, an institution that cannot operate without coercion and severe constraints on prisoners’ freedom” (p. 88). At the same time, these harms may also be operational side effects resulting from prison enacting its direct function—to restrict freedom of movement for a continuous amount of time. So long as prison officials fear escape and the building of power among the people they forcibly confine, they will control and disrupt association and privacy.⁷⁷ So long as people are “inmates” of an institution that controls them, they will experience some loss of autonomy. Even if we, as Shelby suggests, change the leadership and goals of the institution,⁷⁸ these harms will still exist as long as prison exists.

Because a key reason we wish to abolish prison is to stop these harms, we must remain attendant to whether abolishing prison, or even the prison industrial complex, is enough to do away with them. To that end, my definition of prison includes both the four elements and this list of harms.

II. Shelby’s Argument

In this Part, I summarize Shelby’s argument rejecting prison abolition. Then, I analyze a few aspects of his argument through the lens of my revised definition.

Shelby seeks to answer two questions: whether incarceration can be justified given existing structural injustices and whether incarceration can ever be justified in a just social order (p. 4). He concludes that “incarceration has legitimate and socially necessary uses, including as punishment, and so prisons are not inherently unjust” (p. 15; emphasis added). He suggests that abolitionists’ critiques most compellingly indict structural injustices, rather than prisons themselves, and that problems with prison administration, prison conditions, and reentry can be addressed through reform (p. 16).

In choosing between abolition and reform, Shelby suggests that one should consider, “at least,” the following:

1. Whether prison has legitimate goals that justify its costs and risks;

2. whether, to achieve these goals, fair rules can be written;

3. whether prisons can be adequately staffed by people who can “impartially and consistently” follow the rules; and

4. whether there are “practically achievable alternative[s]” that can achieve the same goals with less harm (p. 103).

In response to whether prison has legitimate goals, Shelby defends prisons using the classical purposes of punishment. Casting aside retribution, he promotes prison’s utilitarian uses: “[T]o prevent and control criminal wrongdoing” via deterrence, incapacitation, and rehabilitation (pp. 52–55).

Shelby’s second question asks whether it is possible to write fair rules to govern prison. He argues that unpleasant and coercive treatment in response to serious crimes is justified and not unfair (pp. 61, 103). He also argues that many truly dehumanizing practices previously allowed by prison rules, such as strip searches, can be and have been reformed (pp. 57–58).

Shelby additionally rejects the argument that imprisonment is a form of modern slavery—he asserts, without evidence, that people in prison are not subjected to the “arbitrary despotic” power that slaveholders held; that involuntary labor in prison is similar to compelled community service, which has rehabilitative uses (pp. 69, 72–73). Although he acknowledges that prisons have “ ‘roots’ in slavery,” Shelby argues that we need not abolish the institution, despite these roots, because prison can be reformed to adopt new aims and practices, especially if accompanied by broader social change (pp. 81–83, 102, 109).

In considering the injustice of prisons given the injustice of society at large, Shelby invokes an alternative to abolition: a “radical moratorium on the use of prisons” until our broader societal conditions are no longer so unjust that prison cannot be justified (pp. 112–15). For me, this idea is exciting because, given the prevalence of injustice in our society, it could be understood as abolition by another name. However, rather than proposing we take up the radical moratorium, Shelby favors a limited moratorium on less serious crimes, since prison’s benefits “may be . . . worth the . . . costs”—including the racial costs—for violent crimes (p. 115). As for whether prison personnel can be hired who would fairly implement the rules, he discusses private prisons and contractors that have perverse incentives to imprison more people for longer and to cut costs to increase profits. He suggests that, since we cannot end our reliance on privatization altogether, the solution may lie in non-profit private prison industries (pp. 133–47). Finally, Shelby argues that “alternatives to prison,” such as mental health care, drug treatment, and restorative justice, should complement, rather than replace, incarceration (pp. 149, 166). Not only does the threat of incarceration help enforce compliance, he writes, but also we owe victims the response of incarceration for serious crimes.⁷⁹

A. Prison, Punishment, and the State’s Response to Crime

A valuable move Shelby makes early in the book is to distinguish prison from both punishment and crime-control measures, three concepts that are often conflated. Shelby writes, “It is generally taken for granted that if penalties for criminal wrongdoing are legitimate, then a prison sentence is among the penalties that can be legitimately imposed” (p. 3). Furthermore, he maintains that “[e]ven if punishment as a practice is permissible, not all penalties are legitimate crime-control measures . . . [as] few would accept torture and maiming as legitimate forms of punishment . . . .” (p. 4). Unfortunately, Shelby then proceeds to conflate the three throughout the book.

Shelby defends incarceration as an appropriate response to the worst crimes. He refers to “crimes that cause deep and lasting trauma, such as homicide, rape, and aggravated assault” as crimes that society has a duty to stand up against (p. 53). He argues that we should not downplay serious crime (p. 179), that we owe it to victims “to protect the vulnerable, including many who are themselves oppressed,” and that these considerations are “what justifies penalizing these grave wrongs through incarceration” (p. 61).

However, none of this reasoning points to needing prison specifically. Rather, we might conclude that we need some considered and sufficient response to such crimes; that we must hold people accountable; or even that we must punish people who commit these crimes. Shelby makes a logical leap when he concludes that these are reasons to incarcerate. Similarly, Shelby writes about the importance of society’s “moral permissions and constraints on getting others to do things they already have overriding reasons to do but at times refuse to” (p. 61). “When people refuse to listen to moral reasons, we are sometimes permitted to use coercive means to alter their behavior” (pp. 61–62). Of all possible coercive means, Shelby again makes the logical leap to assume that the means should be incarceration.

In another instance, Shelby suggests that some people are deterred from committing crimes because of their fear of prison (p. 161), yet empirical studies show prisons do not deter criminal behavior.⁸⁰ Even if deterrence is a priority, it might be accomplished by other forms of state responses to crime.

Shelby’s initial reminder to not think of prison as the default punishment or as the default state response to crime is important (pp. 52–53). When we defend prison, we should question whether we are defending prison itself or using prison as a stand-in for some other response. Indeed, as abolitionists describe, there are a host of alternatives that are being tried on the ground to prevent crime and hold people accountable.⁸¹

B. Shelby’s Belief in Prison’s Benefits

Shelby admits that “[i]f [he] were convinced” that imprisonment does not and could not help prevent serious crime, he would advocate for prison abolition (p. 149). Throughout the book, he concludes that prisons deter, rehabilitate, and incapacitate people who would otherwise commit more serious crimes (pp. 54–55). For him, these benefits outweigh prison’s harmful purposes and impacts (p. 56). His faith may be unfounded. Whether prisons serve any of these functions is an empirical question, and the empirical results are, at best, mixed.⁸²

Shelby’s, and my, lists of prison’s elements and harms can help us analyze what features of prison might serve these utilitarian purposes. Theoretically, all or any of the elements of prison might deter someone from committing a crime. Shelby asserts that the question is “whether fear of imprisonment prevents more crime than if we did not have the practice of punitive incarceration” (p. 152). But this question could be applied to any punishment, no matter how grotesque: Does torture or maiming prevent more crime than if we did not torture or maim? A different question asks whether an alternative response to crime might deter a comparable number of people and inflict less harm. This is a complicated empirical question. Even if we cannot measure the impacts precisely, the moral implications of considering the relative harms might temper the desire to strictly optimize deterrence.

Prison’s purported rehabilitative effects are also suspect. It is true that, based on penology from the turn of the nineteenth century, some prisons were created with the intent to rehabilitate: Each of the elements—involuntary confinement in an enclosed space away from other people for a significant continuous amount of time—was supposed to lead to internal repentance and reform.⁸³ Today, although many vestigial practices in prison remain, it is debatable whether prison is meant to rehabilitate at all,⁸⁴ and empirical evidence casts doubt on the rehabilitative effects of prison.⁸⁵

Prison’s ability to incapacitate is also overstated. The element of isolation—keeping people in prison away from the general public—is the mechanism through which prisons incapacitate. Thus, prisons only incapacitate people who are sentenced to prison from harming those outside of prison, not each other. They also do not incapacitate prison staff from harming the people in their charge.

As I argued in the first Part, Shelby may underestimate the harms of prison, including the loss of association, privacy, and autonomy. And as I have argued here, he may overestimate the benefits of prison. Assuming we should decide whether to abolish prison based on a cost-benefit analysis, I disagree with Shelby’s balance.

C. A Note on Philosophy

Shelby defends a philosophical approach to deciding whether to be an abolitionist. Shelby writes that “[t]his book takes up abolitionist ideas as philosophy” (p. 4). Shelby acknowledges that he “philosophize[s] at some remove from political activism and social movements. . . . This book is not, however, a commentary on the activities of the abolitionist movement. It is a book about ideas” (p. 13).

Considering ideas about political and social activities at a remove from those activities is unhelpful at best.⁸⁶ Abstract reasoning has a limit when considering abolition. Shelby argues that prisons are justified in a world where “structural conditions are reasonably just” (p. 183). Abolitionists aim to abolish prisons in our world, where it feels unreasonable to assume background conditions could ever be reasonably just. Moreover, an abolitionist tenet is that we should start with a social problem, imagine how the world can address it, and begin working to do so.⁸⁷ Shelby’s approach begins with prison and asks whether abolitionists have sufficiently argued against it or created viable alternatives.⁸⁸ In that sense, Shelby’s account of abolitionism is missing its vital core.

Shelby frames his book as a way in for those who rely on “philosophical reflection [to] help . . . decide whether to join, champion, abandon, or oppose a cause” (p. 13). For me, and for many abolitionists I know, we came to abolitionism because of relationships with people in prison. We found ourselves in solidarity with people on the inside, yet we were complicit in the society that imprisoned them. While learning about and experiencing some of the absurdities and terrors of prison, we couldn’t help but feel there was something deeply wrong. Perhaps through the powerful and meaningful relationships we were developing, we came to feel there was no justifiable or effective reason to respond to interpersonal harm by isolating people, and we came to see that confining people and fracturing their relationships does not lead to healing or positive change.

This kind of experience-based, emotive mode of decisionmaking may be exactly what Shelby is writing against. But Shelby’s cost-benefit analysis misses many of the human costs of prison. To perform that analysis, we need an accurate understanding of the state of the world. Gaining an accurate understanding requires examining what prison has hidden from public view. For me and many others, it is building relationships, which prisons are meant to prevent and destroy, that leads us to care about—and develop a stake in—the benefits and costs to people who have been othered and demonized.

Conclusion

Shelby writes that we may still need prisons in any version of society because human failings would still occur (pp. 193–94). I agree that human failings will persist, but I argue that human failings will continue to express themselves in our institutions and that, in any society, prisons would still oppress and degrade while failing to perform their purported uses. Shelby concludes that abolishing prison is neither “morally required” nor “wise” (p. 200). A different question would be whether the use of prisons is morally justifiable or wise. Answering that requires defining what prisons are. For exploring that question, Shelby has laid a foundation.

* Fellow in Law, The Ohio State University, Moritz College of Law. I am grateful to Amin Ebrahimi Afrouzi, Amna Akbar, Matthew Brailas, Justin Driver, César Cuauhtémoc García Hernández, Judith Resnik, Daniel Teehan, and editors of the Michigan Law Review, including Robert Brewer, Sunita Ganesh, Emily Lovell, Ben Marvin-Vanderryn, and Nethra Raman, for indispensable comments, conversation, and feedback. I thank Ben Rodgers and Connor Bell for excellent research assistance, and members of the Liman Workshop—Imprisoned: Construction, Abolition, Alternatives—for helpful conversation.