Abstract
For now feminists just dance with the devil – demanding that the existing criminal justice system protect women from violence even as we criticize and work toward the abolishment of that system. Mari Matsuda (1996, p. 41)
Feminists everywhere should celebrate the newly published book Abolition. Feminism. Now. (2022), written by the icons of what we now know as prison–industrial complex (PIC) abolitionist feminists, Angela Y. Davis, Gina Dent, Erica R. Meiners, and Beth E. Richie. What this important book emphatically tells us is that feminists and feminism have been at the heart of PIC abolition—and that abolition intimately aligns with the values of feminism. It also acknowledges the tendencies of progressive movements to blunt the razor edges of racial capitalism with social justice labeled reforms that merely reshape systems of oppression—keeping the status quo intact or even strengthened.
In 1996, 2 years after the passage of the Violence Against Women Act (VAWA), legal scholar, Mari Matsuda, described this precarious position as a “dance with the devil” (p. 41). While named during a time of unquestioned feminist collaboration with the rapid rise of criminalization in the United States, we find ourselves in a dramatically different political moment in 2022. Or do we? In this current battle to reauthorize VAWA, some progressive feminists have fought this decades-long pro-criminalization trend with the insertion of alternative “restorative practices” language into the bill. The question is whether this explicit attempt to curb the excesses of carceral power can achieve a significant step toward what Matsuda in 1996 and Davis et al., in 2022 refer to as the “abolishment of that system” or whether this is yet another rendition of that ill-fated dance, potentially more dangerous in the naive belief that our partner has lost its footing.
The position of Abolition. Feminism. Now. runs counter to so much of what has dominated the U.S. feminism and the imperialist expansion of a form of feminism that has tied so closely to our carceral system—that is, the system of policing, jails, prisons, prosecutors, criminal courts, parole, and probation that has increasingly occupied the central functions that constitute our local, state, and federal systems of governance. Carcerality is not confined, however, to criminal justice systems alone. It extends to the juvenile justice system, immigration control, school discipline and policing, child welfare or what has increasingly been called “family regulation” (Movement for Family Power, 2020), and other arenas highly associated with social work. The feminist anti-violence movement has been so associated with pro-criminalization efforts that this form of feminism led to the coining of the term, “carceral feminism” (Bernstein, 2010), particularly evoked with the more recent anti-trafficking campaign that has been inseparable from pro-criminalization forces.
For social work, acknowledgment and confrontation against the close carceral ties dominating our profession, the field, and academic institutions have only emerged in the last 2 years. As our nation and the globe reacted to the police murder of George Floyd, Breonna Taylor, and the endless killings of Black bodies in the name of “public safety,” a letter authored by Abrams and Dettlaff (2020) decried social work's historic ties to law enforcement and its “softening” role in partnership with the criminal legal system so staunchly defended by social work. The June 11th letter, signed by 1,140 social work practitioners and academics, was the first in terms of public condemnation of social work's collusion with the policing arm of the state and a pointed indictment of social work's continued institutional support for its collaborative role with law enforcement, most notably that of the National Association of Social Work (NASW). While the NASW heralded the historic role of social work as an able partner to policing, others within social work answered back by questioning this role altogether, demanding instead anti-carceral or abolitionist forms of social work (Jacobs et al., 2020).
Indeed, calls to “defund the police” echoed throughout public spaces that had never before considered such a notion. The term moved from the streets to city council meetings, local resolutions, state legislation, and policies explicitly nudging out police roles and funding for public health or community-based alternatives. New demands for nonpolice or reduced police mental health crisis responses, pressure to remove police in schools, and funding for “alternatives to the police” have become commonplace throughout the country and have, in some cases, resulted in concrete changes and implementation of new programming.
One alternative practice that has received increasing attention has been restorative justice. Restorative justice, historically tied to centuries-old Indigenous practices but more recently associated with westernized and professionalized school disciplinary or diversionary legal proceedings, has become a kind of beacon of promise as the nation looks frantically for an alternative to the punitive responses (Kim, 2019). Restorative justice, in its westernized form, has, indeed, been seen as a counter to punitive or retributive criminal legal systems—that have only sought arrest and incarceration as forms of justice. Restorative justice, in its idealized form, has rather elevated the voices of victims of harms or crimes, offered a role for family or community members to participate in its processes, humanized perpetrators of harm or crime as capable not only of “serving time” but of expressing genuine remorse, and highlighted the possibility of actions that might attempt repair of those harms. Certainly worthy of positive attention and regard, the real world of restorative justice has a vast array of practices that fall under this label—some of which use proxies of the aforementioned characteristics that pull them far from their intended outcomes.
Most concerning to those of us who, like the authors of Abolition. Feminism. Now., fear the ever-repeating patterns of reforms that merely mask the continuation of systems of oppression, restorative justice has been largely tied to the authoritarian forces that it has purportedly been meant to restrain. Restorative justice performed in schools held by hierarchical systems of control and an unrelenting punitive logic can lead to processes used to shame or even to mete out punishments in the form of a false egalitarian structure of circles. For adults, restorative justice is often available only to those who have already been caught up in the criminal legal system, offered as a diversionary alternative but one designed and controlled by the agents of law enforcement. Failure to comply may result in a toss back into the usual criminal legal pipeline.
For anti-carceral and abolitionist feminists, many of the characteristics of restorative justice have served as a promising direction for alternatives. The call to collectivity and circular processes, the move from individual to more community participatory approaches, the possibility of dialogue, and focus on repair rather than punishment appear at face value as positive remedies to the dominant criminal legal response. For feminists particularly focused on interpersonal or gender-based violence—domestic or intimate partner violence, sexual violence, and child abuse—restorative justice have appeal.
In fact, progressive feminist forces have attempted to meet demands for alternatives to criminalization and an even more radical abolitionist insistence on dismantling carceral systems, by uplifting restorative justice as a key. The ultimate expression of restorative justice as the exemplary response to “defund the police” or even to demands to dismantle the police has been the insertion of “restorative practices” into the latest version of VAWA reauthorization.
If restorative justice is so promising, why is it that abolitionist feminist forces have said “no” to this provision of VAWA?
The stark answer to this is not necessarily evident in the relatively benign tone of legislative language. Indeed, those members of the National Task Force, a nebulous body of feminists who are largely responsible for the crafting and negotiations shaping VAWA legislation, worked vigorously to put language into the House version of the bill, introducing the language of “restorative practices” that avoided strict definitions of the actual processes that might define the practice, left ample room for the community as opposed to government initiation, ensured voluntary participation, centered victim safety and autonomy, and stated that documentation from restorative approaches must not be used in criminal legal processes—a necessary measure if the truth-telling encouraged in restorative practices not be turned against those in a criminal legal setting that could then transform truth into damning evidence.
Indeed, progressive feminists who consider the introduction of this language into VAWA as a bold win, repeatedly turned to abolitionist feminists to agree that this had to be a good thing. Was this careful use of language not the very thing that we were, in fact, demanding? And repeatedly, we emphatically said “no.” We are not necessarily against restorative justice. What we are against is restorative justice that is tied to law enforcement in any form. As VAWA is firmly situated within the Department of Justice, the very institution at the center of the carceral system in the United States, how could this not devolve into some form that would accommodate the criminal legal system? How could the embeddedness of the nation's most sweeping restorative justice effort, represented in the proposed VAWA reauthorization, not establish the conditions for the growth and development of carceral expressions of restorative justice or forms of restorative justice that would continue to tolerate if not wholly endorse the hegemony of the criminal legal system? The inability to name exactly how that would happen is not necessary to predict this outcome. We have decades of history to tell us again and again that this is invariably what happens—whether in the exemplars that end up being uplifted, the creep of new language that implies or explicitly states increased powers of the criminal legal system, the interpretation of measures, the requirements for grantees to work with prosecutor offices or prosecutor-friendly Family Justice Centers, the implementation of regulations that concretize carcerality into the bland language of internal memos, the selection of programs with sophisticated evaluation measures relying upon interpretations of recidivism dependent upon arrest records, or the other countless permutations of carcerality that policy analysis with any discernment for such tendencies would invariably find.
In fact, the benign nature of the proposed language in the House bill was immediately attacked on its way to the Senate. The Senate sponsor of the VAWA reauthorization, Republican Senator Ernst (2021), condemned the restorative practices section of the House bill, warning that “[i]nstead of going to jail, a wife-beater could sit across the table from their victim and discuss a settlement” (p. 5). However, Biden's urging to support this aspect of the bill—moving from the $25 million in the House version to $125 million if it were approved by the Senate—may have convinced naysayers to dampen their opposition.
After negotiations, the change in the language from the House version to the Senate version opened with an additional roster of conditions carving out a narrower scope of cases considered under the rubric of restorative practices while ensuring an active and controlling law enforcement role overall. Battles and balms between the progressive feminist forces of the National Task Force, Congressional staff, and the law enforcement heavy hitters, the National District Attorney's Association, finally resulted in the deletion of language protecting restorative practice proceedings from the hands of law enforcement. Initial changes included a subtle replacement of the prohibition of exposure of restorative practices to criminal legal oversight with vague references to “protocols” determining under what conditions possible interaction between community-based processes and law enforcement might be proscribed. By the time S. 3623 was published on February 9, 2022, “restorative practices” appearing in Section 109 of the bill (Violence Against Women Act of 2022. S. 3623. 117th Cong) added a number of provisions narrowly describing restorative practices as “written” and strictly discerning cases eligible for restorative practices funded under the VAWA reauthorization from those under the jurisdiction of law enforcement. No language appears in the Senate version regarding the protection of evidence gained under restorative practices from law enforcement, a core aspect of the House bill. These provisions act to maintain the fortress walls of crime control while offering no protection to newly designated restorative practices from the intrusions of the state.
Abolitionist feminists support, in general, future directions in restorative justice and more explicitly abolitionist transformative justice approaches to interpersonal and gender-based violence—while also opposing dominant law enforcement versions of restorative justice. Placing restorative justice within VAWA and into the belly of carcerality, itself, is a fatal strategy, setting the stage for a future pathway that ensures the cooptation of restorative justice into law enforcement-friendly forms. The inclusion of restorative practices within VAWA set off a predictable chorus of protest by conservative supporters of VAWA such as Senator Jodi Ernst. It has also rankled legions of anti-violence advocates who have long and steady resistance to an alternative form of justice that they associate with the coercion of survivors of violence to succumb to a practice that is believed to coddle and excuse perpetrators of violence while feeding into public desires for survivors to forgive and forget. Progressive feminists fighting for the inclusion of a restorative practice clause within this current reauthorization of VAWA consider this an effective challenge to carceral feminist demands for “tough on crime” measures that remain steadfast within the anti-violence sector.
The abolitionist feminist position to reject the inclusion of restorative language in VAWA is simple and straightforward. However, our position is rendered illegible by the dominance of the carceral state and the continued belief by progressive feminists that alternative justice reforms within the most stalwart of carceral institutions are possible. Does our opposition to the inclusion of restorative practices within the VAWA reauthorization mean that we side with those opposed to restorative practices altogether? Have we become bedfellows with the Joni Ernsts of the world—who, in the end, gave in to the inclusion of restorative language in VAWA? Our emphatic answer is “no.” Matsuda invoked the metaphor of the “dance with the devil” shortly after she witnessed the travesty of the original VAWA's passage as a part of the Violent Crime Control and Law Enforcement Act or Crime Bill of 1994, concretizing the intimate partnership between anti-violence feminism and the most masculinist and repressive arm of the state. With this latest reauthorization of VAWA, we have been beckoned by our progressive feminist friends to join in this dance once more. This time, we understand that the road to abolition and liberation requires that we must refuse. Rather, we turn to self-determined and autonomous communities as our committed partners, placing the future of restorative, transformative, and liberatory practices, old and emerging, under this more worthy stewardship.