The United States is a world leader in incarceration. According to the Prison Policy Initiative, more than 1.9 million people are locked up in jails, prisons, and various other detention facilities across the country. And compared to their share of the population, Black and brown Americans — particularly men — are significantly overrepresented among these numbers.
Harvard Law expert Premal Dharia believes the causes of this “unique and highly objectionable” aspect of American exceptionalism are both historical and complex, going all the way back to the institution of slavery and continuing today. Dharia is the executive director of the Institute to End Mass Incarceration at Harvard Law School. She is also the co-editor of a new anthology “Dismantling Mass Incarceration: A Handbook for Change.”
In a recent conversation with Harvard Law Today, Dharia discussed the new book, how her prior work as a public defender informs her advocacy, teaching, and writing, and where efforts to transform the criminal system are heading.
“There can be no question that the amount of harm our carceral system continues to cause is completely untenable,” she said. “Changes are being made. People are organizing. Policy is changing. Narratives are shifting. This offers hope and it can offer the fuel needed to keep pushing. The type of transformation we need is vast, but it won’t happen in one fell swoop — it is through these changes, this chipping away, that we will achieve it.”
Harvard Law Today: Can you tell me about your new book “Dismantling Mass Incarceration”?
Premal Dharia: The book is an edited anthology. My co-editors and I were all public defenders previously in our careers and all had worked in the same office in Washington, D.C., so we’re coming to this bigger issue from similar backgrounds and perspectives in terms of our professional experience. The book is broadly set up in six parts and each reflects a part of the system of mass incarceration that we’ve built. That includes the police, prosecutors, public defenders, judges, the prisons, and the aftermath of what follows people even after they’ve been released.
My co-editors and I collaborated on the introductions at the start of the book and the start of each chapter where we pose a few key questions about big picture issues we want readers thinking about as they go. Then, each chapter has a selection of excerpted pieces from a wide variety of sources — from legal commentary and court opinions to news articles and even a Twitter thread. It’s designed to provide insight and provoke conversations, but most of all we wanted it to be accessible so that anybody picking up this book will be able to understand the issues.
There are libraries of award-winning writing on mass incarceration discussing its origins, the legacies that it’s built upon, the consequences of our existing system, etc. We tried to do something a little bit different here: Each piece included in the book has a forward-looking “what do we do about this” angle.
HLT: Can you provide some context to the current level of incarceration in the United States?
Dharia: Absolutely. The United States is a world leader in incarceration rates, but also implements an expansive system of punishment and surveillance that extends far beyond incarceration, through debt, monitoring, and ongoing “supervision.” We punish people in a way and at a scale that is truly exceptional. The reasons behind this are multi-fold, spanning from the legacy of slavery our country is built upon, to the forces of capitalism and racism that persist today, to our country’s utilization of criminalization and punishment in furtherance of them. These intersecting social, political and economic forces have yielded a gigantic, harmful web: a web of actors, policies, and institutions that make up our system of mass incarceration. And, indeed, it is in many ways a very diffuse system, which highlights how hard it can be to point the finger and identify where “the problem” lies. The reality is, there isn’t just one person we can elect or one thing we can do differently that will end this. And on one hand, that can seem really discouraging for folks who want to make change. On the other hand, that also means there are so, so many points of intervention where change is possible.
HLT: How has your experience as a public defender shaped your views on incarceration?
Dharia: Well, I became a public defender because I care deeply about these issues — about the intersections of racial, economic and social justice, about the harms of state violence. So, my experience representing people experiencing that harm, facing the possibility of life-altering outcomes, has only deepened my resolve.
Although I am no longer a public defender, that work has informed my professional journey completely. Since then, I have reflected on, written about, and spoken about the practice of public defense: the importance of that work, its internal tensions, and how it might evolve — what its future might look like. Public defense is very challenging and also very essential work. As you can see from excerpts in the book, there are also a lot of really tough questions about whether public defense legitimizes the system by giving it the veneer of fairness. In the anthology, my co-editors and I included excerpts of essays by Paul Butler and Matthew Caldwell that essentially ask, “What does it mean to give people lawyers in a system that is grinding away, the wheels of injustice turning? Does providing lawyers to everyone make it easier for those wheels to turn?” Having been public defenders and knowing deeply the good and critical work they do and can do, my co-editors and I also wanted to examine these difficult questions, consider the role of public defense, and contemplate how it can be most impactful. We know that public defenders are the ones helping disentangle people from the system’s clutches every day — reuniting families, minimizing harm, exposing misconduct. I believe the work is important enough to also ask hard questions about.
HLT: What are some of the biggest issues affecting the capacity of public defenders to adequately represent criminal defendants in the U.S.?
Dharia: In large parts of the country, public defenders are so deeply underfunded that individuals being criminalized and prosecuted do not receive anywhere near the quality of representation they are supposed to be getting. I was lucky enough to practice in public defender offices that were well-resourced, but that’s simply not the case for thousands of attorneys around the country. And countless people — largely Black and brown, all poor — are suffering significantly as a result. Many jurisdictions don’t even provide these offices pay parity with prosecutors, so they’re literally paid less than their opponents across the aisle. And these funding choices are not random — they are, like every decision related to budgets, intentional policy choices.
HLT: What does it mean that the U.S. incarceration system is so decentralized and disorganized?
Dharia: Well, for one, it makes accountability among actors and institutions very difficult. As we note in the book, judges, prosecutors and police can often point fingers at each other for harms at different stages of the process. In a broader sense, we have a federal system, and then state systems, and then, of course, the local systems in each county and town around the country. This can, again, make it seem daunting to take on — but it also means that there are millions of points of possible intervention at every stage and at every level. As for how the book is structured, my co-editors and I set up the anthology in a way that follows a person’s experience within the carceral system; that approach came from our backgrounds as public defenders.
HLT: What does that path look like for people experiencing the criminal system? And who else does it involve?
Dharia: Well, in terms of interaction with the system, if you are being brought into it, first, there are the police who approach, search, detain and arrest. Of course, these encounters are, as we describe in the book, often menacing, violent, and even fatal for people. For example, we talk about traffic stops and how dangerous they can be for Black and brown people. Then there’s the prosecutor who decides what to charge — and this decision has a number of implications. It might govern whether someone is detained pretrial, it will impact plea bargaining, and it will play a big part in any sentence ultimately handed down. After this decision, the public defender usually enters the process. Then the person appears before a judge. As each of these different stages and actors appear in the anthology, you can start to see where accountability, or lack of it, lies. By examining accountability, points of intervention then start to become more apparent as well; the silos between the different parts and actors in the system break down a bit.
One unique aspect of our anthology that departs from many of the mainstream critiques of our criminal legal system is that we included public defenders. Reform advocates typically don’t include public defenders in such critiques because they are seen as fighting the “good fight,” because they’re not an active part of the prosecutorial function; in fact, they’re opposing it on behalf of their clients. That’s an assumption that my co-editors and I, as former public defenders, specifically made a point to include. Through the pieces we included, as I mentioned earlier, we ask whether every actor in the system is — intentionally or not — in some way contributing to its perpetuation, to its strength.
HLT: What’s the alternative to mass incarceration? What’s the ideal system compared to the system we’re dealing with today?
Dharia: My co-editors and I discussed this a lot. In the process of creating the book, the three of us came to realize that we don’t all share the exact same opinions across the board, or even the same visions about what the future might look like. Rather than shy away from that, we decided to embrace it. We want people to talk about these issues, to feel challenged to think about them in a complex way. So, ultimately, we decided against being prescriptive at all. You won’t find pieces in the book that support building more prisons or giving police more power — in that sense, there is a common thread. But beyond that, we remained faithful to our overall goal of giving readers an opportunity to read different perspectives, feel challenged, and develop their own opinions based on their own experiences.
In terms of approaches to thinking about policy change, though, we do refer in the book to a framework that originates with abolitionist organizers and an organization called Critical Resistance. It is a framework of “reformist reforms” versus “non-reformist reforms.” This distinction focuses on whether a particular policy change or system shift will entrench or strengthen the system or whether it will serve to weaken it. No matter how large or small, what impact does the change have on the larger system, on the potential for even more transformational change to come in the future? We need to stay mindful about whether reforms are reinforcing harmful aspects of our system, even if that’s not immediately apparent.
HLT: How has the movement to end mass incarceration evolved over the past few years?
Dharia: In the last several years — certainly since the murder of George Floyd — there has been a surge of interest, advocacy, organizing, and activism around these issues. We have seen a substantial increase in public awareness centered on pushing against policing practices and state violence. This sparks hope. But as police violence continues, and as political rhetoric around criminalization fails to evolve, it can be hard not to become discouraged. I find inspiration and hope in the incredible organizing that is happening around the country — in towns and cities, in places without national spotlights — where people are committed to building communities that can truly thrive.
Along with Professor Andrew Crespo, I lead an institute at Harvard Law School called the Institute to End Mass Incarceration. Our mission is in our name: By helping to build power within and supporting the leadership of the communities most directly impacted by the penal system, we aim to eradicate mass incarceration, root and branch. In our work, we take three main interrelated approaches: we amplify ideas and shift narratives through media — namely, through our online publication, Inquest; we engage in advocacy and lawyering alongside, and in deep partnership with, organizers and coalitions; and we grow the next generation of lawyers by teaching and training students at Harvard Law School.
In our work, a central theme is understanding the power of organizing, led by those most impacted, when it comes to dismantling our system of mass incarceration. Lawyers have a very important role to play — particularly when it comes to getting into and engaging with the infrastructure of the system. We are, at the Institute, deeply invested in lawyering (and teaching lawyering) in a way that dives right into that connection point: the places where lawyers can best engage with, intertwine with, and support the coalitions and campaigns that are pushing for change.
HLT: Has the momentum for systemic reform that followed the deaths of George Floyd and others materialized into major policy progress?
Dharia: The conversations happening now are so different than they were 20 or 30 years ago. We have to remember this. As we note in the book, as recently as 1992, the Department of Justice was publishing a report called “The Case for More Incarceration.” And now, ending mass incarceration is a widely embraced movement. So, as much as some things have not changed, much has.
In terms of policy progress, as I’ve mentioned, the criminal legal system is diffuse. There is federal policy and then there are the state and local policies that constitute the bulk of our system. At each level, there is forward progress alongside backlash and regression. This is a cycle — one we need to push against. But there has been progress. Illinois, after years of organizing efforts, ended its system of money bail. Various jurisdictions are implementing alternative first responder systems. Some prosecutors who ran on reform-oriented platforms have made important sentencing and charging policy changes in their cities. These policy shifts are real, and they matter; indeed, they can be life-changing for the people directly impacted by them.
Nonetheless, there can be no question that the amount of harm our carceral system continues to cause is completely untenable. Changes are being made: People are organizing, policy is changing, and narratives are shifting. This offers hope and it can offer the fuel needed to keep pushing. The type of transformation we need is vast, but it won’t happen in one fell swoop — it is through these changes, this chipping away, that we will achieve it.
HLT: In your opinion, what issues within the criminal system are currently the most ripe for reform?
Dharia: When we think about changes that can be made, there are a few different kinds of lanes of work we can focus on. The anthology primarily focuses on the systemic “dismantling” work, with an eye toward the actors and institutions that make up the infrastructure of mass incarceration. Helping to identify intervention points into that infrastructure is where this book is focused.
For example, how can we shrink the ways in which police engage with people, knowing that so many of those encounters are dangerous and turn violent? We talk about alternative first responders in the book, as well as changes to traffic stops and who manages traffic safety. Or, are there ways in which prosecutors can make policy changes that shrink our system of mass incarceration — while also not expanding their own power or roles? Can prosecutors shrink the system while also shrinking prosecution? And judges — how can they utilize their roles to stop people from coming into jails and to help people get out of prison? We need front- and back-end changes, and judges are positioned to impact both.
And then, of course, there are the buildings themselves. In the book, there’s an excellent, thought-provoking contribution from Piper French, originally published in Inquest and Bolts, about a prison town in California contending with its future.
At IEMI, we have developed a focus area on carceral infrastructure in the last couple of years — the very architecture of mass incarceration. Built during the prison boom of the 1980s, many of these facilities are at or near the end of their life cycles. This means we are at an inflection point. Across the country, communities will be, if they are not already, faced with a pivotal question: What are we investing in? Should we be spending billions of dollars building and rebuilding the infrastructure of mass incarceration? Or should we take this critical opportunity to truly invest in our communities?
IEMI was a founding member of a coalition called Building Community, Not Prisons, which opposes the construction of a proposed new federal prison in eastern Kentucky. The coalition is comprised of local residents, directly impacted people from all over the mid-Atlantic region, and a variety of national, regional and local organizations. In this work, where organizers and activists and lawyers are all collaborating deeply, we are foregrounding the question: What are we investing in? And we believe it should be people. We believe it should be the community infrastructure and support that people need to truly thrive.
And beyond dismantling this hulking infrastructure of the mass incarceration system, many people are also thinking critically about what to replace it with. Community-based restorative justice programs and community-based violence intervention programs, for instance, are good examples of ongoing efforts to build healthy ways of actually taking care of one another.
HLT: What can people outside of the system do to improve the situation and help address injustice?
Dharia: Mass incarceration is not a system that exists in a silo. Many people are directly and violently impacted by it, and it is a system that has cascading consequences that extend to whole communities, to families, to all of our futures. It is a system we are all responsible for — and have a responsibility to fight against. I’ve described various policy changes here, but policy doesn’t change because lawmakers just decide to make changes. For any change to happen — whether in actors or policies or institutions — it is the power of people and organizing that makes it happen. So, I think the first step for anyone is to see what’s happening in their place: Who’s already organizing around these issues? How are they organizing? What are they doing? Then, plug in where possible. Almost always, there are people already organizing around these issues, even if you don’t know about them yet. Every place has people seeking elected office. Every place has courthouses, jails, and prisons. Every place has its version of these actors, institutions, and systems. And every place has the possibility for change, for growth and for hope. Every place has openings for action.
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