Why the (potential) Overturning of Roe v. Wade Makes a Case for the Abolition of the U.S. Criminal Legal System by Whit Washington, Esq.

As a legal scholar and human rights attorney, the most recent leaked opinion from the Supreme Court of the United States (SCOTUS) is not a surprise. Our legal system was created by people who believed that Black people and all women were not people worthy of protection under the law at best and that they were property at worst. They were instead to be pawns of the state to maintain the status quo for white males.  

Our constitution and many of the major social movements since our country’s founding have focused on civil rights, which one obtains by being a legal member of a certain political state. The keyword in this definition is legal, because it is the state that determines what/who is and is not legal. Thus, by pursuing civil rights vs. human rights, the rights one acquires by being alive, we are leaving our liberty up to the whims of the state. 

As a country founded on and supported by capitalism, the state requires the oppression of at least part of society to function. If there is not a population(s) to exploit, then the state cannot maintain its economic and, thus, political power. It is then in the state’s interest to maintain the illegality of certain groups so that there is a steady population of people to feed the economy. 

We can see in the history of the criminal legal system the ways in which the state has used its power to deem groups illegal and criminalize them to manipulate the economy and maintain the status quo. 

In the 1700s the Colonies began passing what are known today as the Slave Codes. The Slave Codes codified race-based slavery in the American South, prior to the Slave Codes, Black people could buy their freedom. The Slave Codes were a response to Bacon’s Rebellion, a conflict whereby poor white people and poor Black people joined together and almost overthrew the colonial elite. The Slave Codes were the result of lessons learned from the French Revolution: a divided proletariat cannot overthrow the bourgeoise

After the Civil War, we see the exception to the 13th Amendment, which allows slavery for individuals who have been convicted of a crime. Following the passage of the 13th Amendment, we see the creation of the Black Codes, which limited the ability of Black people to generate wealth and criminalized Black movement in public space. The Black Codes were accompanied by Convict Leasing, where prisons leased out their incarcerated population, which was predominately Black, to local plantations. A centerpiece of the Black Codes were the vagrancy laws that criminalized poverty, which meant that as long as the economic mobility of Black people was limited, there would always be a group of people to incarcerate and enslave. 

Around the same time that Black wealth was criminalized under the Black Codes, we see female wealth being criminalized by morality laws. In the 1870s, sex work was legal, and it was the highest paying job for women. Madams who ran their own brothels were able to amass wealth and were viewed as accepted members of society. It was a moral crusade to put women in their place as homemakers and mothers that pushed the movement to criminalize sex work and eliminate the only way women could generate wealth. 

Morality laws and the professionalization of medicine similarly pushed abortion out of the mainstream and into the realm of illegality. In the 19th century, abortion was fairly common- one study estimates that one in every five women at the time had an abortion. Advertisements for “female doctors” who could treat an “obstructed menstruation” and pills that were suited for “married ladies” (code for women having sex) were in mainstream newspapers. It was not until the 1850s that the men of the newly created medical profession began describing the desire to limit pregnancy and have access to abortion as “insanity” because it was against a woman’s natural inclinations. 

The combination of excluding women from wealth generation with sex work, and removing power from them with regard to family planning made it such that the criminalization of poverty in the Black Codes could also be used to incarcerate women. The women put in prisons in the 1870s and early 1900s were subject to conditions that rival those of Rikers Island today. Women were often crowded in rooms without bathrooms or ventilation somewhere within a men’s facility. At some facilities, women in custody were pimped out by corrections staff for profit. 

As long as we fight to reform the system through civil rights, which gives the state the power to deem certain people illegal and thus not worthy of dignity, we will never be free. We must instead push for human rights, which demands the abolition of the current system so that people have the resources they need to exist and the state cannot disappear people based on their identities. 

As we look at our system today, we see the same patterns of criminalization for the LGBQA community, the TGI community, the disabled community, and folks living in poverty as we see with Black people and women in the 1700s/1800s. We see increased state violence against individuals who exist at the intersections of these identities. Instead of investing in the reform of a system that was built to maintain capitalism and thus oppression of the proletariat, we must abolish the system– divest from the violence that upholds it and invest in communities and human security

What does that look like? It looks like community care instead of prison cages. It looks like divesting from wars and investing in communities through universal basic income, universal healthcare, free early childhood care through advanced degrees, and real social security and disability insurance. It looks like using the $25-30k per year it costs to incarcerate a person to invest in that person’s education. It looks like people making millions and billions of dollars paying their employee’s fair wages AND paying taxes. Most importantly, it involves actual accountability like the state paying reparations to Black families for 246 years of slave labor and 157 years of wealth extraction and terror; and returning land to the Native American people that the US displaced and continues to try and exterminate

They want you to believe that it is impossible to achieve such a future, and it is if you refuse to look outside of the barriers that they created. But those barriers, like any other, can and will be torn down. 

* Whit uses the term “criminal legal system” vs. “criminal justice system” because there is no justice in the U.S. system.

Whit Washington, Esq. (they/them) is a bi-racial and non-binary abolitionist, attorney, and legal scholar based in Washington, DC. Whit studies the social history of criminal law as a tool of oppression and state control. This article represents Whit’s personal views and not those of their employer.

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