Murmurations: Moving from Punishment to Accountability

A note from adrienne maree brown: Kung Li Sun is an organizer who is always thinking of how to create radical collaborative spaces, from her Queer Fit radical health practice, to collective writing space, to the alternative history she’s written for us as the author of Begin the World Over.

When I got the email from adrienne maree brown inviting me to be part of the chorus sharing this column on accountability, I welcomed the chance to consider a question that had dogged me when I was a lawyer challenging conditions of confinement in prisons and jails: How do you use the justice system to hold accountable a justice system that understands only punishment? 

The question, I realized, is a gong’an (in Zen, a koan): in Chan Buddhism, a paradoxical riddle that first disorients you and then, if you are diligent in practice, leads you into enlightenment. “What is the sound of one hand clapping?” is a gong’an, as is the question, “When you do nothing, what can you do?” 

I started lawyering deep in the “tough on crime” era that started in the early ’70s with President Nixon’s war on drugs. A cascade of punitive laws had produced the world’s highest incarceration rate, militarized police forces, and a massive archipelago of prisons, jails, and detention centers.

At the Southern Center for Human Rights, our lawsuits were based on the United States Constitution’s Eighth Amendment, which prohibits “cruel and unusual punishment.” In one case, filed in 2003 on behalf of Alabama’s women prisoners, the largest dorm (the prison’s former factory) was squeezed so tight with bunk beds that the women could pass a deck of cards from one end of the room to the other without having to reach, elbows bent the whole way across. When combined with 90-degree temperatures, the conditions were undeniably cruel and unusual.

The nightmarish conditions inside the prisons were created entirely by the state of Alabama, but there was a frank refusal to admit, much less take responsibility for, wrongdoing. There was no sense of accountability. The only language the Department of Corrections could understand was their own—the language of punishment. Where accountability acknowledges and takes responsibility for wrongdoing, the logic of punishment is to inflict suffering commensurate with the suffering caused.

Prison officials understood even the most meager relief ordered by the court—in that dorm, a pair of swamp coolers pushed the hot air around—as a penalty, a chastisement that had to be submitted to, but with maximum reluctance. Practiced in punishment, this was all they understood.

Then in 2013, Black Lives Matter took off. After decades of police killing Black people with impunity, the killings of Eric Garner in Staten Island, New York; Michael Brown in Ferguson, Missouri; Akai Gurley in Brooklyn, New York; Tamir Rice in Cleveland; Walter Scott in North Charleston, South Carolina; Freddie Grey in Baltimore; Philando Castile in St. Paul, Minnesota; and Breonna Taylor in Louisville, Kentucky, sparked large-scale protests: The DOJ opened investigations into multiple police departments. With breathtaking speed, the need to end mass incarceration went from being a far-left fantasy to a centrist talking point.

A regressive era was ending, it seemed, and a progressive one beginning. But very quickly, it became obvious something was amiss. The reforms that were actually implemented—body cameras, surveillance cameras, and more training—did nothing more than enlarge the budgets of police departments. Even as fewer people were locked behind bars, the conditions in prisons and jails got worse. And the judiciary—state and federal alike—shifted right, ever-more reluctant to protect any rights other than the right to carry guns.

Dr. Martin Luther King Jr.’s oft-repeated phrase—that the arc of the moral universe is long, but bends toward justice—seemed… wrong. 

Perhaps there is no moral universe. 

Perhaps there is a moral universe, but the arc is so long that we, like Achilles in Zeno’s paradox, will never arrive at our destination, justice.

Perhaps there is a moral universe, and it is indeed arcing toward justice, but we have fallen off the arc. 

I puzzled over every possibility, until finally I arrived at the last word in the phrase: “justice.”

In creating this nation, the fugitive slave clause in the U.S. Constitution was a concession to enslavers who insisted runaways be “delivered up like criminals,” as fugitives from justice. This is the only substantive meaning of “justice” written into the U.S. Constitution. The practical meaning of “justice” was in enforcement, where local justices of the peace were installed to pass quick judgment on disturbances of the King’s peace—that is, to put down rebellions and resistance by those enslaved.

With my faith in justice wavering, I left the practice of law. It was as if the north star had blinked out and disappeared from the night sky. During this disorienting time, I found another gong’an to be helpful. This was Detroit organizer Grace Lee Boggs’ opening question at every meeting: “What time is it on the clock of the world?” 

Time, in Buddhist and many Indigenous cosmologies, is spiralic. In this spiral, the long arc of the moral universe is but one small segment of a much larger, much longer spiral. The arc of the moral universe is a part of the larger spiral of the moral universe. Can you see it? We are at the turning of the spiral, at a time of revolution. 

As we make this turn on the spiral, the constituent arc now runs in a different direction. Where the present arc bends toward justice, toward what does the emerging arc of the moral universe bend?

We can remember that revolution has two meanings. The contemporary meaning of revolution is of a sudden and great change. But revolution also retains its earlier, astronomical meaning, of a celestial body’s movement in a circle or ellipse. That is, as a return. In this moment, we mean revolution in both these meanings.

The path forward, it seems, is a return to what was—and what remains, as an undercurrent—once abundantly present on this land: reciprocity, democracy, and collectivism. Abolitionists see the revolutionary possibilities of this moment. It is now possible and necessary, per Ruthie Wilson Gilmore, to Change Everything. Abolition’s goal is not a better justice system, but a world free of prisons, police, and justices of the King’s peace altogether. The work is not to reform, but to dismantle. 

The bend toward such a radically different world is not assured. It will, in fact, be vigorously and violently resisted by the existing system, which will use the criminal justice system, its most powerful weapon, to try and crush attempts to replace it. Case in point: the RICO indictment of #StopCopCity activists cites mutual aid and collectivism as evidence of criminal conspiracy.

In this revolutionary moment, then, what to do? Dismantle the existing criminal justice system, certainly, so that the new world being built is not arrested and imprisoned. And then, hands on the plow, we do the work necessary to build… what? With reciprocity, democracy, and collectivism as our new (and old) north star, what are the systems and institutions we want to revive and create?

Here, again, we can turn once more to a gong’an to guide us.

We can ask: How can every individual be free to choose how to offer their gifts for the benefit of the group and the earth? 

In the spirit of gong’an, we know that we don’t know. This paradoxical riddle will first disorient us. And from this disoriented place, our commitment is to be diligent in practice—to be creative, and brave, and try wildly different things, and learn from the many inevitable failures, and try something else, and yet again something else. These are the million experiments Mariame Kaba encourages us to try—experiments we can and must undertake with a radical lack of certainty. In this way, we just might fumble our way into building not only a true system of accountability, but a whole new world.

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