DECARCERATION’S INSIDE PARTNERS
Seema Tahir Saifee*
This Article examines a hidden phenomenon in criminal punishment.
People in prison, during their incarceration, have made important—and
sometimes extraordinary—strides toward reducing prison populations. In
fact, stakeholders in many corners, from policy makers to researchers to
abolitionists, have harnessed legal and conceptual strategies generated
inside the walls to pursue decarceral strategies outside the walls. Despite
this outside use of inside moves, legal scholarship has directed little attention
to theorizing the potential of looking to people on the inside as partners in
the long-term project of meaningfully reducing prison populations, or
“decarceration.”
Building on the change-making agency and revolutionary ideation inside
the walls, this Article points the way to an alternative approach to
decarceration: thinking alongside people banished from the polity.
Criminal law scholars routinely recount their stories, but rarely do we
consider people held in prison to be thought leaders, let alone equal partners,
in progressing toward a decarceral future. Despite conducting extensive
research on prisons and those held inside them, legal scholars know—and
wonder—tremendously little about the decarceral work, decarceral ideas,
and “think tanks” that surge behind bars. The absence of our curiosity
reflects and reproduces the ideological work of carceral punishment.
This Article demonstrates that an alternative vision of decarceration that
resists this ideological work opens up more promising paths to create the
legal and social change that our current moment demands. It calls on legal
scholars and all those committed to large-scale decarceration to find ways
to discover, ignite, and emancipate more decarceral visions on the inside.
And it argues that, unless we make this challenging shift, we suppress

* Research Fellow, Quattrone Center for the Fair Administration of Justice, University of
Pennsylvania Carey Law School. For generative engagement and encouragement, I am
grateful to Amna Akbar, Regina Austin, David Ball, Dan Berger, Marissa Bluestine, Huy Dao,
Emily Dindial, Claire Fondrie-Teitler, Bruce Green, Margaux Hall, Paul Heaton, David Loftis,
Timothy Lovelace, Serena Mayeri, Sandra Mayson, Vanessa Potkin, Daniel Richman, David
Rudovsky, Jocelyn Simonson, and Shirin Sinnar. For their extraordinary insights and
generosity in fielding my many questions, I owe a great debt to Eduardo Bocanegra, Emily
Bolton, G. Ben Cohen, Robert Fullilove, Katherine Mattes, Colin Reingold, Wilbert Rideau,
John Simerman, and Andrew Tutt. Special thanks to the staff of the Biddle Law Library for
invaluable support in obtaining sources and to the staff of the Fordham Law Review for terrific
editorial support. And finally, my deepest gratitude to Greg Counts, whose resolve and untold
virtues emboldened this work. All errors are mine alone.

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innovative, effective, and more conceivable possibilities to radically
transform our carceral state.
INTRODUCTION.................................................................................... 54
I. INSIDE DECARCERAL MOVES.......................................................... 64
A. Changing the Law............................................................... 66
1. Nonunanimous Juries ................................................... 66
2. Armed Career Criminal Act ......................................... 77
B. Idea Generation .................................................................. 83
1. Neighborhood-to-Prison Migration.............................. 83
2. Rethinking Violence .................................................... 98
II. LOOKING TO THE INSIDE .............................................................. 106
A. Disrupting the Carceral Mindset ...................................... 106
B. Prison’s Antidemocratic Paradox .................................... 109
III. REVISITING EXPERTISE............................................................... 113
CONCLUSION ..................................................................................... 125
INTRODUCTION
It was 1972 in a hamlet sixty miles north of New York City. Lawrence
White was composing a vision statement for a think tank he chaired. From
inception, his founding mission centered on issues of concern to people in
prison. Top among those issues was reducing prison populations.1
Lawrence conceptualized the prison as a “direct relationship” between the
state and the predominantly Black and Latinx communities in the nation’s
urban neighborhoods.2 This concept remained abstract.3 Over the next
decade, construction of prisons boomed.4 The state prison population in New
York doubled.5 To support their concept, Lawrence’s intellectual partner,
Edwin, had an idea to cross-reference government data to determine the zip
codes that supplied the growth in the state prison population.6 The
researchers found that 75 percent of the state’s entire prison population came
from just seven predominantly Black and Latinx neighborhoods in New York

1. See Orisanmi Burton, Attica Is: Revolutionary Consciousness, Counterinsurgency
and the Deferred Abolition of New York State Prisons 128–33, 152, 216–18 (2016) (Ph.D.
dissertation, University of North Carolina at Chapel Hill) (on file with author).
2. Id. at 114, 132, 152, 214–15.
3. Id. at 152.
4. See HUGH L. CAREY & THOMAS A. COUGHLIN, III, NEW YORK STATE 1980–1985
CORRECTIONAL SERVICES MASTER PLAN 103 (1981), https://www.ojp.gov/pdffiles1/
Digitization/91605NCJRS.pdf [https://perma.cc/5RS7-Z8TY].
5. CORRECTIONAL ASS’N OF N.Y., THE PRISON POPULATION EXPLOSION IN NEW YORK
STATE: A STUDY OF ITS CAUSES AND CONSEQUENCES WITH RECOMMENDATIONS FOR CHANGE
1 (1982).
6. Burton, supra note 1, at 153.

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City.7 The neighborhoods had among the highest rates of poverty,
unemployment, and failing schools, as well as the lowest life expectancy in
the city.8
With the data, the team then elaborated the abstract “direct relationship”
as an overinvestment in prisons and a disinvestment in the neighborhoods
disproportionately replenishing them.9 Transforming their research into
praxis, the group proposed a new approach to reduce crime and punishment:
redirect funds from the state prison budget toward social, educational, and
economic development in the seven neighborhoods.10 Issued in 1979, and
again in 1990, this visionary plan of action, rooted in a community-focused
commitment to social justice, was not well received.11
Decades later, the group’s collective genius upended the dominant
narrative of American crime and punishment.12 The once-mysterious
catchphrase “invest-divest” has now swept the nation, transforming dialogue
in circles both radical and mainstream. The groundbreaking concept, more
to the point, was incubated neither in an elite endowed foundation nor in
freedom. Lawrence (Larry White), Edwin (Eddie Ellis), and many more
began steering the free world from a think tank founded inside a maximum
security prison.13
***
America’s carceral footprint has earned criticism and condemnation from
within and outside the nation. There is widespread understanding in many
corners that the expansive systems of carceral control in the United States
demand far-reaching change. The project of reducing the nation’s prison
population has provisional ideas from many quarters, but there is little
agreement as to who, how, how much, or how fast to decarcerate.14 As
numerous scholars have shown, large-scale decarceration requires moving
beyond low-level drug and nonviolent crimes to dramatically reducing
reliance on carceral punishment for offenses that criminal law classifies as
violent.15 How do we accomplish this?
7. CTR. FOR NULEADERSHIP, THE SEVEN NEIGHBORHOOD STUDY REVISITED 3–4 (2013),
https://static1.squarespace.com/static/58eb0522e6f2e1dfce591dee/t/596e1246d482e9c1c6b8
6699/1500385865855/seven–neighborhood+revisited+rpt.pdf
[https://perma.cc/KH9DNUFQ].
8. Id. at 4; see infra Part I.B.1.
9. See infra Part I.B.1.
10. See infra Part I.B.1.
11. See infra Part I.B.1.
12. See infra Part I.B.1.
13. See infra Part I.B.1. I use the term “free world” to describe people and institutions
outside of prison.
14. See Allegra M. McLeod, Beyond the Carceral State, 95 TEX. L. REV. 651, 681 (2017)
(book review) (noting “the increasing public commitment to decarcerate at least in certain
jurisdictions alongside the current lack of viable proposed means to achieve that end”); Ben
Grunwald, Toward an Optimal Decarceration Strategy, 33 STAN. L. & POL’Y REV. 1, 5 (2022)
(“[E]ven among scholars and activists who support large-scale reductions in the prison
population, there’s little consensus on who we should decarcerate and how.”).
15. Over 50 percent of people in state prisons—which hold about 90 percent of the people
held in U.S. prisons—have been convicted of a crime classified as violent. E. ANN CARSON,

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Many thoughts have emerged. One common refrain is: “[T]o reduce the
prison population, prosecutors are going to be the ones who have to lead the
way.”16 There are many reasons to doubt this measure. Prosecutors have
fueled the rise of prison populations.17 This is, in part, a function of electoral
politics.18 Perhaps more so, the ideology of prosecution is in fundamental
tension with large-scale decarceration.19 Among prosecutorial offices that
adopt decarceral platforms, their initiatives target mostly low-level drug and

BUREAU OF JUSTICE STATISTICS BULLETIN:
PRISONERS IN 2019, at 20 (2020),
https://bjs.ojp.gov/content/pub/pdf/p19.pdf [https://perma.cc/EX42-NE8E]; JOHN F. PFAFF,
LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION AND HOW TO ACHIEVE REAL REFORM
6, 11–13 (2017) (“[T]he incarceration of people who have been convicted of violent offenses
explains almost two-thirds of the growth in prison populations since 1990.”); DAVID ALAN
SKLANSKY, A PATTERN OF VIOLENCE: HOW THE LAW CLASSIFIES CRIMES AND WHAT IT MEANS
FOR JUSTICE 3 (2021) (observing that meaningfully scaling back incarceration requires
“dramatically reduc[ing] our punishments for violent crime”); MARIE GOTTSCHALK, CAUGHT:
THE PRISON STATE AND THE LOCKDOWN OF AMERICAN POLITICS 165 (2015) (arguing that
focusing on the “non, non, nons”—nonviolent, nonserious, non-sex related crimes—will not
meaningfully cut the prison population).
16. Jeffrey Toobin, The Milwaukee Experiment, NEW YORKER (May 4, 2015),
https://www.newyorker.com/magazine/2015/05/11/the-milwaukee-experiment
[https://perma.cc/RVG2-C82L] (quoting Fordham Law School professor John Pfaff).
17. Paul Butler, The Prosecutor Problem, BRENNAN CTR. (Aug. 23, 2021),
https://www.brennancenter.org/our-work/analysis-opinion/prosecutor-problem
[https://perma.cc/5H7Y-DYJY] (describing prosecutors as “the most powerful actors in the
criminal legal system” who “often ha[ve] more power over how much punishment someone
convicted of a crime receives than the judge who does the actual sentencing”); PFAFF, supra
note 15, at 127, 206 (concluding that “[f]ew people in the criminal justice system are as
powerful, or as central to prison growth, as the prosecutor” and arguing that prosecutors “have
been and remain the engines driving mass incarceration”). But see Katherine Beckett, Mass
Incarceration and Its Discontents, 47 CONTEMP. SOCIO. 11, 16–20 (2018) (noting that “Pfaff
is undoubtedly correct to emphasize the role of prosecutors in the prison build-up” but offering
evidence to refute his arguments that sentencing policy did not matter as much); Jeffrey Bellin,
Reassessing Prosecutorial Power Through the Lens of Mass Incarceration, 116 MICH. L. REV.
835, 837, 841–42, 856–57 (2018) (critiquing Pfaff’s data and conclusion that prosecutors
drove mass incarceration but agreeing that prosecutors “played a supporting role in [its] rise”).
18. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV.
505, 509–10 (2001) (describing the “two kinds of politics [that] drive criminal law”:
politicians responding to punitive impulses of voters, and institutional design and incentives
of key actors in the system); RACHEL ELISE BARKOW, PRISONERS OF POLITICS: BREAKING THE
CYCLE OF MASS INCARCERATION 5, 105–09 (2019) (arguing that populist politics helped create
mass incarceration); Alice Ristroph, An Intellectual History of Mass Incarceration, 60 B.C. L.
REV. 1949, 1955 (2019) (noting that “measures of general public punitiveness cannot provide
a full account of how or why experts, political officials, and legal professionals built a carceral
state”).
19. See Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual
Framework, 15 AM. J. CRIM. L. 197, 198, 217 (1988) (discussing the prosecutor’s dual role to
seek convictions and to seek justice); Kenneth J. Melilli, Prosecutorial Discretion in an
Adversary System, 1992 BYU L. REV. 669, 698 (describing this dual advocate/minister role as
“ongoing schizophrenia”); GOTTSCHALK, supra note 15, at 266 (“To reduce the imprisonment
rate, prosecutors will have to be cajoled or pressured into embracing a commitment to send
fewer people to prison and to reduce sentence lengths.”); Note, The Paradox of “Progressive
Prosecution,” 132 HARV. L. REV. 748, 760–66 (2018) (discussing the ways in which the
structures of the prosecutorial system frustrate reform efforts by nontraditional prosecutors).

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nonviolent offenses.20 This is also true for the tiny subset of top law
enforcers dubbed “progressive prosecutors.”21 If prosecutors exclude crimes
classified as violent from meaningful decarceral initiatives, how can they
take the lead in reducing, on a large scale, carceral punishment for violent
crime? “[A]lmost all politicians steer clear of this topic.”22
If prosecutors are ill-positioned to lead the decarceral way, so too are
judges and legislators.23 Some legal scholars have renewed calls to engage
“experts” to guide criminal policy decisions through data-driven methods.24
A growing number of scholars have criticized the myth that deferring to the
20. See, e.g., Toobin, supra note 16 (reporting that the Milwaukee County district attorney
“divide[s] our world in two,” that is, “people who scare us, and people who irritate the hell
out of us,” and the latter group—people charged with low-level offenses—were the focus of
his diversion and deferred-prosecution initiatives); Press Release, U.S. Att’y’s Off. for the
Dist. of Columbia, United States Attorney’s Office Opposes Release of Violent Offenders
(Apr. 4, 2020), https://www.justice.gov/usao-dc/pr/united-states-attorneys-office-opposesrelease-violent-offenders [https://perma.cc/EWS9-B8CF] (announcing during the COVID-19
pandemic that any prison releases by the U.S. Attorney’s Office for the District of Columbia
would be for “non-violent inmates”); Barbara Bradley Hagerty, Releasing People from Prison
Is Easier Said than Done, ATLANTIC (July 8, 2020), https://www.theatlantic.com/ideas/
archive/2020/07/releasing-people-prison/613741/ [https://perma.cc/RB4E-Z7Y9] (“Even
with the threat of a deadly virus, so far governors have drawn the line at violence.”).
21. See, e.g., Rachel E. Barkow, Can Prosecutors End Mass Incarceration?, 119 MICH.
L. REV. 1365, 1381–82, 1386–88 (2021) (discussing the limited power of progressive
prosecutors to reduce the prison population); Darcy Covert, The False Hope of the
Progressive-Prosecutor Movement, ATLANTIC (June 14, 2021), https://www.
theatlantic.com/ideas/archive/2021/06/myth-progressive-prosecutor-justice-reform/619141/
[https://perma.cc/7WDU-2F6E] (arguing that the “progressive prosecutors’ approach won’t
bring about meaningful change”); Cynthia Godsoe, The Place of the Prosecutor in Abolitionist
Praxis, 69 UCLA L. REV. 164, 164 (2022) (arguing that progressive prosecutors are “at best a
half-measure to achieve real change” and at worst risk legitimating the system).
22. PFAFF, supra note 15, at 186. Even some critics of mass incarceration are reticent to
discuss the topic of violence. See James Forman, Jr., Racial Critiques of Mass Incarceration:
Beyond the New Jim Crow, 87 N.Y.U. L. REV. 21, 50 n.111 (2012) (arguing that avoiding the
topic of violence disserves the anticarceral movement and cedes terrain to proponents of
tough-on-crime measures who can “present themselves as the sole defenders of public
safety”).
23. See, e.g., BARKOW, supra note 18, at 186 (“In casting institutional blame for the
irrational set of criminal justice policies we have, it is important not to overlook the role of
[federal and state] judges.”); Bellin, supra note 17, at 837, 856 (arguing that legislators and
judges have a greater responsibility for mass incarceration than prosecutors); Jonathan Simon,
An Unenviable Task: How Federal Courts Legitimized Mass Incarceration, in LEGITIMACY
AND CRIMINAL JUSTICE: AN INTERNATIONAL EXPLORATION 227, 245 (Justice Tankebe &
Alison Liebling eds., 2013) (“To an important degree the American judiciary, both federal and
state[,] have been complicit in normalizing mass incarceration.”); Matthew Clair & Amanda
Woog, Courts and the Abolition Movement, 110 CALIF. L. REV. 1, 5, 15 (2022) (arguing that
criminal courts “function as institutions of punitive social control,” playing a central role in
legitimating the racialized violence and control of police and prisons “while mythologizing
themselves as institutions that afford justice”); Jonathan Simon, Can Courts Abolish Mass
Incarceration?, in THE LEGAL PROCESS AND THE PROMISE OF JUSTICE: STUDIES INSPIRED BY
THE WORK OF MALCOLM FEELEY 259, 260–61, 265 (Rosann Greenspan, Hadar Aviram &
Jonathan Simon eds., 2019) (explaining why court-based interventions might provide the
dynamic needed to progress toward decarceration but cautioning that “[i]t will take more than
courts to abolish mass incarceration”).
24. See, e.g., BARKOW, supra note 18, at 165–85; John Rappaport, Some Doubts About
“Democratizing” Criminal Justice, 87 U. CHI. L. REV. 711, 810 (2020).

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judgment of “experts” with elite educational credentials will lead to superior
decision-making, let alone deep, systemic change.25 Like system actors, the
expertise of elite academics and pseudo-professionals is embedded in the
construction and maintenance of the carceral state.26 Although stakeholders
both within and outside the system who hold traditional markers of expertise
do play an important role in reducing prison populations, these actors, alone,
are unlikely to shepherd us to transformative decarceral futures.27
A clinical, crime-by-crime, category-focused mindset to decarceration
also risks mirroring the machinery that created our present crisis. Addressing
“one of the most pressing human-rights challenges of our time”28 demands
more than mainstream proposals by mainstream actors. Scholars have
argued that substantial decarceration demands both reducing reliance on
carceral punishment for violent crime and confronting how the law thinks
about violence,29 which is central to our carceral state.30 Put another way,
changing how the law and the public think about violence is central to
25. I discuss this further in Part III. See Benjamin Levin, Criminal Justice Expertise, 90
FORDHAM L. REV. 2777, 2786 (2022) (arguing that “there’s good reason to be skeptical that
simply choosing the right experts will address deep-seated cultural attitudes about punishment
and the proper scope of criminal law”).
26. See infra Part III; see also David Runciman, Why Replacing Politicians with Experts
Is a Reckless Idea, GUARDIAN (May 1, 2018), https://www.theguardian.com/news/2018/
may/01/why-replacing-politicians-with-experts-is-a-reckless-idea [https://perma.cc/US4ZMAGP] (“When a machine goes wrong, the people responsible for fixing it often have their
fingerprints all over it already.”).
27. See infra Part III.
28. Beckett, supra note 17, at 21.
29. Alice Ristroph, Criminal Law in the Shadow of Violence, 62 ALA. L. REV. 571,
575–76, 621 (2011); SKLANSKY, supra note 15, at 2–8; id. at 45, 232 (arguing that “[t]he line
between ‘violent’ and ‘nonviolent’ offenses has become the most important dividing line in
criminal law,” but explaining that the distinction and the significant weight placed on it are
modern developments); id. at 236 (“The overreliance on violence as a legal category helped
to create mass incarceration and now helps to sustain it.”). To be sure, “violent crime” is a
misleading heuristic. Across states, crimes that count as “violent” for purposes of sentencing
enhancements encompass conduct where no one was harmed but exclude conduct that would
be seen as violent under ordinary meanings. Ristroph, supra, at 573–75, 621 (“[T]he meaning
of ‘violent crime’ varies depending on the purpose for which the category is deployed.”);
SKLANSKY, supra note 15, at 69–70 (noting that the categories vary across jurisdictions and
even within the same state).
30. Ristroph, supra note 29, at 576; SKLANSKY, supra note 15, at 3–6, 87 (observing that
moral beliefs about violence are reflected in legal rules, statutes, and precedents and noting
the enduring role played by race and racism in shaping those beliefs); see also GOTTSCHALK,
supra note 15, at 168 (“Drawing a firm line between nonviolent drug offenders and serious,
violent, or sex offenders in policy debates reinforces the misleading view that there are
clear-cut, largely immutable, and readily identifiable categories of offenders who are best
defined by the offense that sent them to prison.”); Beckett, supra note 17, at 20 (arguing that
“shrinking and transforming [the U.S. penal system] will require multi-faceted strategies that
address its varied drivers, including the increasingly tough policy response to violence”);
JAMES FORMAN JR., LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN BLACK AMERICA
230–31 (2017) (arguing that “the label ‘violent offender[]’ . . . ensures that we will never get
close to resolving the human rights crisis that is 2.2 million Americans behind bars”); PFAFF,
supra note 15, at 100, 227, 232 (arguing that “if we hope to end mass incarceration,” shifting
people’s attitudes toward violence and violent crime is the most “fundamental change that we
need” and is the most challenging project).

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decarceration. These twin aims—reducing the prison population and
fundamentally reckoning with our ideas about violence—are inseparable.
There is an underexplored and siloed site where aspirational visions and
interventions to advance these dual aims have originated: inside prison
cages.
With limited to no resources, formal education, or social interaction, some
people held in cages have initiated ambitious legal and conceptual strategies
to reduce prison populations. People in prison have ushered in new metrics
to measure public safety, generated innovative ways of thinking to make
complex social problems more understandable to policy makers, and
spearheaded advancements in criminal procedure to reduce the numbers of
people cycling into prison. I call these steps “inside decarceral moves.”
These strides are not limited to formal law or legal discourse. People in
prison have conceptualized alternative frameworks to understand why the
criminal legal system has locked them up, pushing reformers and
abolitionists alike toward new strategies to reduce prison populations. In
fact, the criminal legal system and a wide range of actors outside the system
have harnessed the work and ideas generated inside the walls to pursue
decarceral strategies outside the walls that were once considered a pipe
dream. This phenomenon has received practically no legal attention. The
transformative role that people in prison have shouldered to reduce prison
populations has been obscured by the systems we have built.
If decarceration demands reckoning with how the law thinks and, by
implication, how we think about violence, it inextricably entails reckoning
with how the law thinks about the people it puts in prison. Framing
decarceration in this way makes apparent the essential role of people in
prison to this effort, in that many people in prison who experience the daily
violence of the law spend their days reckoning with how the law thinks about
them. In that deep contemplation, people in prison have opposed—and
produced ideas to expose—the enduring narratives and structures that land
them and others behind bars, generating theories, analyses, and actions
directed to transformative decarceral ends.
In one sense, it should not come as a surprise that people in prison have
decarceral ideations: to exist in a prison is to imagine a world without the
prison. Given how many people we incarcerate and whom we incarcerate,31
it may even be intuitive that some promising legal and conceptual ideas for
reducing prison populations have originated in prisons. In another sense, this
phenomenon is astounding. People whom our criminal law places under civil
death, who are surviving carceral exile, and who are subject to the
oppression, isolation, and indignity of state control are imagining new, rich,
and hopeful modes of dismantling the punitive reach of the carceral state.
Their visions were born in suffering, in prison cages that were designed
neither to invite nor to facilitate innovation, but to quash it.

31. See infra note 260 (noting that America has imprisoned leaders of Black, Latinx, and
tribal communities for generations).

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Of course, for over a century, people in prison have produced
knowledge—including political, social, and intellectual thought—that has
transformed scholarship and activism. Antonio Gramsci developed the
concept of cultural hegemony and the notion of “organic” intellectuals.32
Angela Y. Davis transformed radical thinking in her intricate
conceptualization of the prison-industrial complex.33 This Article, in fact,
was inspired by Davis’s call to acknowledge people in prison as equal
partners whose participation is essential to antiprison work.34 George
Jackson expressed a vision for African American freedom rooted in a deep
knowledge of American colonialism, racism, capitalism, and imperialism.35
And, in a landmark text for the civil rights movement, Martin Luther King,
Jr.’s Letter from Birmingham Jail revolutionized collective thought on civil
disobedience both in the United States and beyond this nation’s borders.36
Recent legal scholarship coauthored by Terrell Carter, who is serving a life
sentence without the possibility of parole, Kempis Songster, who served
thirty years of a life sentence before his release from prison, and law
professor Rachel López provides a firsthand account of the often-collective
processes inside the walls that lead people in prison to generate new concepts
of law.37
This is too short a list of people whose brilliance—born inside cages—
continues to influence the ideas and work of scholars and activists today.38
32. SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI 3–4, 12, 181–82
(Quintin Hoare & Geoffrey Nowell Smith eds. & trans., 1971) (theorizing the central role of
ideology in the ruling class’s ability to exercise hegemony).
33. See ANGELA Y. DAVIS, ABOLITION DEMOCRACY: BEYOND EMPIRE, PRISONS, AND
TORTURE 105–06 (2005) (describing Davis’s correspondence with George Jackson while both
were in jail, as well as its lasting impact on her thinking).
34. See ANGELA Y. DAVIS, FREEDOM IS A CONSTANT STRUGGLE: FERGUSON, PALESTINE,
AND THE FOUNDATIONS OF A MOVEMENT 26 (2016) (“Whenever you conceptualize social
justice struggles, you will always defeat your own purposes if you cannot imagine the people
around whom you are struggling as equal partners.”); id. (“It may not always be easy to
guarantee the participation of prisoners, but without their participation and without
acknowledging them as equals, we are bound to fail.”).
35. See GEORGE L. JACKSON, SOLEDAD BROTHER: THE PRISON LETTERS OF GEORGE
JACKSON 236–37, 264–66 (1970); GEORGE L. JACKSON, BLOOD IN MY EYE 36, 72, 110–11
(1972).
36. See MARTIN LUTHER KING, JR., Letter from Birmingham Jail, in WHY WE CAN’T WAIT
77 (1964); Douglas Brinkley, How Martin Luther King’s ‘Letter from Birmingham City Jail’
Inspired the World, HISTORYNET (June 12, 2006), https://www.historynet.com/martin-lutherking-jrs-letter-from-birmingham-city-jail/ [https://perma.cc/DF3W-GFBQ].
37. Terrell Carter, Rachel López & Kempis Songster, Redeeming Justice, 116 NW. U. L.
REV. 315, 321–24 (2021) (describing how people incarcerated in a Pennsylvania state prison
developed a concept to challenge life-without-parole sentences, recognizing the law’s failure
to take into account the human capacity for change). Thinking alongside people on the inside,
López documented that the European Court of Human Rights was developing a similar
concept in human rights law at the same time that her coauthors conceptualized a distinct
reading of the Eighth Amendment from behind bars. Id. at 315, 321–23, 337–38 (arguing for
reading a right to redemption in the latent concept of human dignity in the Eighth
Amendment).
38. For a few examples of this influence, see Kimberlé Williams Crenshaw, Race, Reform,
and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV.
L. REV. 1331, 1350–51 (1988) (describing Antonio Gramsci’s concept of hegemony and

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This Article aims to articulate something distinct: people in prison have
ushered in ideas and actions that direct toward near-term and long-term
reduction in prison populations. Notwithstanding the talent on the inside,
however, legal scholars know and—perhaps more fundamentally—wonder
tremendously little about the decarceral imaginations and “think tanks” that
surge behind bars.39 Despite routine narration of their stories—usually
starting with a crime—and vast study of prisons and jails, legal scholars
rarely consider people in prison to be thought leaders, let alone equal
partners, in progressing toward a decarceral future. Our inability to imagine
people in prison producing viable ideas for decarceration that engage the
legal, social, economic, and structural inequalities for which criminal law has
placed them in exile, let alone to unearth the visions on the inside, reflects
and reproduces the ideological work of carceral punishment.
Ideology plays a central role in upholding the carceral state. Professor
Angela Y. Davis describes the ideological work accomplished by the prison:
the very existence of the prison, Davis writes, “relieves us of the
responsibility of seriously engaging with the problems of our society,
especially those produced by racism and, increasingly, global capitalism.”40
Professor Jocelyn Simonson examines the ideological work of criminal
procedure:
the “people/defendant” dichotomy, Simonson reveals,
ideology and its importance to critical legal theory); Jocelyn Simonson, The Place of “the
People” in Criminal Procedure, 119 COLUM. L. REV. 249, 259 n.30 (2019) (citing Gramsci
and stating that “ingrained ideas about the legal and political world [can] legitimate and
normalize systemic injustices”); Dorothy E. Roberts, The Supreme Court, 2018 Term—
Foreword:
Abolition Constitutionalism, 133 HARV. L. REV. 1, 110–11 (2019)
(conceptualizing George Jackson’s invocation of the U.S. Constitution as one that advanced
an abolitionist reading of the text); Allegra M. McLeod, Envisioning Abolition Democracy,
132 HARV. L. REV. 1613, 1614–18 (2019) (describing abolition democracy, a concept
envisioned by W.E.B. Du Bois and developed further by Angela Y. Davis).
39. For two recent and notable exceptions, see Carter, López & Songster, supra note 37,
at 315–16, 321 (describing a study group in prison that developed a reading of the Constitution
challenging the legal precept that people sentenced to life without parole are incapable of
redemption, coauthored with a person in prison and a person released from prison), and
V. Noah Gimbel & Craig Muhammad, Are Police Obsolete?: Breaking Cycles of Violence
Through Abolition Democracy, 40 CARDOZO L. REV. 1453, 1521 (2019) (representing the first
full-length law review article on police abolition, coauthored with a person in prison, and
highlighting violence-reduction projects in prison led by people in prison). Law reviews also
occasionally publish solo writings by people in prison. See, e.g., Introduction: Jailhouse
Lawyering, 69 UCLA L. REV. DISCOURSE 1 (2021) (featuring a collection of essays by
jailhouse lawyers and journalists behind bars and noting that the legal academy “often—if not
always—exclude[s] jailhouse lawyers when discussing who is a lawyer and what it means to
be one”); Thomas C. O’Bryant, The Great Unobtainable Writ: Indigent Pro Se Litigation
After the Antiterrorism and Effective Death Penalty Act of 1996, 41 HARV. C.R.-C.L. L. REV.
299, 301 (2006) (describing the realities of indigent pro se litigation after the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996).
40. ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 15–16 (2003) (describing how the prison
“functions ideologically as an abstract site into which undesirables are deposited, relieving us
of the responsibility of thinking about the real issues afflicting those communities from which
prisoners are drawn in such disproportionate numbers”); see also DAVIS, supra note 33, at 118
(stating that in the United States, “the role of prisons” has “evolved into . . . a default solution
to the major social problems of our times”); id. at 69 (“Ideologies play a central role in
consolidating the prison-industrial-complex”); DAVIS, supra note 34, at 22, 24.

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“assume[s] a clean separation” between the interests of the public and the
interests of the lone person who stands accused.41 This reigning ideology,
Simonson argues, moves us “toward practices that are more punitive than the
multifaceted interests of the public dictate” and facilitates the exclusion of
marginalized populations who participate in everyday communal
interventions “on the other side of the ‘v.’.”42
Implicit in Davis’s and Simonson’s insights is another ideological function
that criminal law, the legal profession, and the media interact to perform:
together, they shape the popular imagination of “the inmate.” In a
technocratic, savior-based legal culture, people in prison are primarily seen
as objects to cage, save, or study. Put another way, the ideology of criminal
law and the legal profession legitimates43 our distorted ways of thinking
about people in prison. This dominant ideology, in turn, blinds us from
seeing a path to far-reaching change: in that, the same site that allows us to
disclaim responsibility to think about the structural inequalities in our society
is a place where visionary ideas have been seeded to intervene in those very
inequalities.
This Article argues that it is essential for legal scholars and stakeholders
committed to large-scale decarceration to find ways to think alongside and
invest in ongoing conversation with people in prison to cultivate decarceral
moves and promote decarceral futures. It presents a theoretical and
normative argument for why looking to the inside is an important addition to
the project of decarceration. Inside-outside collaborations can deepen—and,
to date, have deepened—perspectives on decarceral strategies beyond the
limited imaginations in elite legal circles. This Article thus goes beyond a
call to listen to the voices or to center the experiences of people in prison and
argues that it is essential to ignite and invest in their visions for decarceration.
Imagining with people banished from the polity is central to envisioning the
freedom that can make decarceration more conceivable.44
Legal scholars, including Professors Mari Matsuda, Lani Guinier, Gerald
Torres, Amna Akbar, Sameer Ashar, Jocelyn Simonson, Ngozi Okidegbe,
41. Simonson, supra note 38, at 249, 271.
42. Id. at 252–55.
43. “The legitimating function of legal ideology is a core insight of both critical legal
studies and critical race theory.” Id. at 259 n.30 (“In Gramscian terms, legal ideology plays a
role in perpetuating hegemonic relationships.”); see Crenshaw, supra note 38, at 1350
(“Critical scholars derive their vision of legal ideology in part from the work of Antonio
Gramsci.”); Alan David Freeman, Legitimizing Racial Discrimination Through
Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV.
1049, 1051 (1978) (describing how the “law serves largely to legitimize the existing social
structure and, especially, class relationships within that structure”).
44. Cf. Dorothy Roberts, Democratizing Criminal Law as an Abolitionist Project, 111
NW. U. L. REV. 1597, 1607 (2017) (calling for a vision of democratizing criminal law in which
“[B]lack communities have greater freedom to envision and create democratic approaches to
social harms—for themselves and for the nation as a whole”); LANI GUINIER & GERALD
TORRES, THE MINER’S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING
DEMOCRACY 11–22, 37 (2003) (describing how collective imagining by racialized
communities can “enlarge the idea of what is possible” and can lead to new legal, social, and
political understandings).

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and many more have thought and written extensively about the place of
directly-impacted populations—in the free world—in law, policy, and social
change.45 Collective imagining alongside communities engaged in struggle
is, indeed, part of a long tradition in critical legal scholarship.46 I situate this
argument within that tradition: notably, Matsuda’s call to critical scholars to
“look to the bottom”—to communities that have the least advantage—to
generate new concepts of law and social change;47 and Akbar, Ashar, and
Simonson’s concept of movement law, a methodology for creating space in
legal scholarship to co-generate new theories for change in conversation with
social movements whose intellectual traditions, imaginations, and horizons
for change “gesture at new possibilities” that expand our thinking.48
To be clear, this Article makes no demand that people in prison take on
this collective role, let alone lead the way. Such a mandate would equate to
compelling the extraction of strategies to decarcerate from people whom we
have incarcerated. To the contrary, this Article reveals that engineers of
decarceral change—from “everyday activists”49 to luminaries—exist in
prisons, and it anticipates that many more, if so emboldened, have the
capacity and the will to generate ideas that hold promise to promote
decarceral aims. To that end, this Article is not centrally concerned with
prison reform, improving conditions in prisons, or broader issues of
governance and policymaking.50 Its focus is the decarceral work and
45. For examples of foundational works, see generally Mari J. Matsuda, Looking to the
Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987);
GUINIER & TORRES, supra note 44; Lani Guinier & Gerald Torres, Changing the Wind: Notes
Toward a Demosprudence of Law and Social Movements, 123 YALE L.J. 2740 (2014); Amna
A. Akbar, Sameer M. Ashar & Jocelyn Simonson, Movement Law, 73 STAN. L. REV. 821
(2021); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. REV. 405
(2018); Simonson, supra note 38 at 249; Ngozi Okidegbe, The Democratizing Potential of
Algorithms?, 53 CONN. L. REV. 739 (2022).
46. See Akbar, Ashar & Simonson, supra note 45, at 832–42 (detailing decades-long
history of critical scholars inspired by or cogenerating ideas with social movements); see also
infra pp. 109–10.
47. Matsuda, supra note 45, at 344–45, 349; see infra Part II.B.
48. Akbar, Ashar & Simonson, supra note 45, at 825–26, 861–62, 875; see infra Part II.B.
49. Jane Mansbridge & Katherine Flaster, The Cultural Politics of Everyday Discourse:
The Case of “Male Chauvinist,” 33 CRITICAL SOCIO. 627, 628, 635–36 (2007) (describing how
ordinary people take actions in their everyday lives to respond to instances of injustice that
social movements and intellectuals have made salient, becoming part of the process of making
new ideas and challenging dominant understandings).
50. Certainly, people in prison can create influence in these domains too, which may have
decarceral effects. See, e.g., JAMIE BISSONETTE WITH RALPH HAMM, ROBERT DELLELO &
EDWARD RODMAN, WHEN THE PRISONERS RAN WALPOLE: A TRUE STORY IN THE MOVEMENT
FOR PRISON ABOLITION 112, 125–26, 160, 168, 205 (2008) (discussing a citizen-observer
program in which over 1,000 volunteers monitored conditions in a Massachusetts prison and
“the critical role of the prisoners’ own agency” in securing direct access to civilians which, in
turn, built opposition to prisons); MUMIA ABU-JAMAL, JAILHOUSE LAWYERS: PRISONERS
DEFENDING PRISONERS V. THE USA 189–90, 209–10 (2009) (chronicling numerous ways,
including through lawsuits, in which people in prison “brought change to a system that was
determined to resist change” and “exposed [the prison system] to the bright light of day”);
DAVIS, supra note 40, at 58 (describing a college program introduced in a New York prison
as a direct result of demands by people in prison); M. Eve Hanan, Invisible Prisons, 54 U.C.
DAVIS L. REV. 1185, 1223, 1229–33 (2020) (arguing that the subjective experience of

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decarceral imaginations that take root inside prisons. Inspired by Angela Y.
Davis, this Article thus considers people in prison as our partners, not our
objects of study or charity.51 To that end, discovering and developing inside
decarceral imaginations does not contemplate a one-time survey or series of
questionnaires. A survey would be limited in scope and ability, elicit finite
responses, and is not conducive to, nor a substitute for, long-term, generative
dialogue. As Professor Lani Guinier stated, “[i]deas get a toehold when there
is an ongoing conversation.”52
This Article proceeds in three parts. Part I describes diverse ways in which
people in prison have made strides to reduce the reach of the carceral state.
It shows how decarceral steps conceptualized and implemented inside prison
have come to fruition in conversation and collaboration with others on the
inside and outside. Part I also examines how system actors and
change-oriented actors outside the system have made enormous use of the
capacity on the inside to enrich and accelerate the decarceral work on the
outside. Part II presents a theoretical account of what I call “looking to the
inside” in the project of decarceration, focusing on two justifications:
(1) disrupting the ideological function of the prison and (2) revealing the
democracy-enhancing agency of people in prison. Part III explores the limits
of adopting a lens of expertise to understand the value of people in prison in
the ambition for long-term decarceration. At a time when criminal law
scholars are debating the role of experts in criminal policy and staking
competing claims to expertise, Part III also examines the limits of expertise—
and the frame itself—to achieving large-scale decarceration. In conclusion,
I argue that thinking alongside people in prison is essential to cultivating and
progressing toward more imaginative, hopeful, and transformative decarceral
futures. If we fail to make this challenging shift, we miss—and suppress—
more humane, innovative, and effective possibilities to radically transform
our carceral state.
I. INSIDE DECARCERAL MOVES
One way to denaturalize the status quo is to unveil its hidden realities. A
criminal legal system that churns out carceral sentences and limits the right
to counsel post-conviction tautologically produces an uncounseled
imprisonment, as understood by people who are incarcerated, is essential to improving
sentencing policy); Jocelyn Simonson, Democratizing Criminal Justice Through Contestation
and Resistance, 111 NW. U. L. REV. 1609, 1619–20 (2017) (discussing the influence of prison
hunger and labor strikes in sparking reforms to solitary confinement practices in California
prisons); Jules Lobel, Participatory Litigation: A New Framework for Impact Lawyering, 74
STAN. L. REV. 87, 87–88, 92, 114, 153, 157 (2022) (demonstrating that people in prison were
active partners in directing the Pelican Bay class action, and that the collaborative,
nonhierarchical partnership was crucial to ending California’s use of prolonged solitary
confinement).
51. DAVIS, supra note 34, at 26 (“[I]f you think of the prisoners simply as the objects of
the charity of others, you defeat the very purpose of antiprison work. You are constituting
them as an inferior in the process of trying to defend their rights.”).
52. Lani Guinier, The Supreme Court, 2007 Term—Foreword: Demosprudence Through
Dissent, 122 HARV. L. REV. 4, 13 (2008).

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population whose agency has upended legal, political, and popular discourse.
This part documents different ways in which people in prison have made
decarceral moves. I define “decarceral moves” as legal or conceptual
strategies that can reduce new prison admissions, for long stays or at all,
release more people from prison, or transform conventional understandings
of the reasons people land in prison.53 This part examines this phenomenon
in two domains: changing formal law and producing informal knowledge.
In each sphere, people in prison have influenced dramatic transformation far
beyond their cells. Most of the people whose ideas are described in this part
are Black and Latinx and were removed from poverty to prison. This part
describes how the criminal legal system and nonsystem actors harnessed their
work—and continue to rely on it today—to pursue new decarceral strategies.
A note about language: “[W]e . . . persist in thinking of a convicted person
as a special sort of individual, one cut off in some mysterious way from the
common bonds that unite the rest of us.”54 As if the cage were endemic to
their very existence, we choose to adopt their locus as a type of nationality,
calling them prisoners, inmates, offenders, and convicts. Throughout this
Article, I describe people in prison as people in prison to emphasize their
humanity.55 I do not begin any account with the crime for which they were
convicted, unless the decarceral move is contingent on it.56 The ideas in the
pages to come were all generated in prison by people convicted of crimes
classified as violent—some were admittedly involved in violence and some
had compelling evidence of innocence but were not able to prove it in a
53. Cf. Todd R. Clear & James Austin, Reducing Mass Incarceration: Implications of the
Iron Law of Prison Populations, 3 HARV. L. & POL’Y REV. 307, 312 (2009) (“There is no way
to change the prison population without changing either the number of people who go to prison
or how long they stay there.”); JAMES AUSTIN, ERIC CADORA, TODD R. CLEAR, KARA DANSKY,
JUDITH GREENE, VANITA GUPTA, MARC MAUER, NICOLE PORTER, SUSAN TUCKER & MALCOLM
C. YOUNG, ENDING MASS INCARCERATION: CHARTING A NEW JUSTICE REINVESTMENT 4, 8
(2013) (“If policy makers want to reduce the costs of corrections, they have to reduce the
number of people who enter the system, their length of stay, or both . . . . [E]specially for
people convicted of violent crimes.”).
54. John Griffiths, Ideology in Criminal Procedure or a Third “Model” of the Criminal
Process, 79 YALE L.J. 359, 385 (1970); see also DAVIS, supra note 34, at 22 (describing prison
as the “notion of a place to put bad people”); Simonson, supra note 38, at 250–51, 271, 287
(describing how the ideology of criminal procedure pits the entire community against the lone
accused person); Bernard E. Harcourt, Reducing Mass Incarceration: Lessons from the
Deinstitutionalization of Mental Hospitals in the 1960s, 9 OHIO ST. J. CRIM. L. 53, 80 (2011)
(“The . . . question is whether . . . the public imagination of the ‘convict’ could ever be
reshaped.”).
55. See Open Letter from Eddie Ellis, Ctr. on NuLeadership for Urb. Sols. 1–2 (2017),
https://cmjcenter.org/wp-content/uploads/2017/07/CNUS-AppropriateLanguage.pdf
[https://perma.cc/MU5U-YQ8K] (“We habitually underestimate the power of language. . . .
We think that by insisting on being called ‘people’ we reaffirm our right to be recognized as
human beings, not animals, inmates, prisoners or offenders. We also firmly believe that if we
cannot persuade you to refer to us, and think of us, as people, then all our other efforts at
reform and change are seriously compromised.”).
56. Cf. IAN MANUEL, MY TIME WILL COME 3 (2021) (“In the stories told of my life, each
begins with a crime.”). See generally BRYAN STEVENSON, JUST MERCY: A STORY OF JUSTICE
AND REDEMPTION 24, 148, 186, 228 (2014) (telling stories that begin with histories—of
families, neighborhoods, communities, geographies, and institutions).

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courtroom. Facts about the crimes or convictions are mentioned but not at
the outset.57 This Article centers their ideas.
A. Changing the Law
This section examines two distinct inside moves to challenge
long-standing laws or precedents that have put thousands of people in cages
and kept them there for lengthy terms. It describes how people behind bars
have created influence—and law—that carries long-term, continuing, and
far-reaching decarceral consequences.
1. Nonunanimous Juries
In 1985, Calvin Duncan, a Black man, was sent to the Louisiana State
Penitentiary (“Angola”) to serve a life sentence.58
At Angola,
twenty-four-year-old Duncan trained to be an “inmate counsel substitute.”59
People on Louisiana’s death row had counsel for their death-qualifying
offenses, but no legal representation for their noncapital convictions.60
Duncan’s assigned job was to assist people on the latter cases, for 20 cents
an hour.61
In hundreds of cases, Duncan found that the Louisiana Appellate Project
(LAP)—the state indigent defense organization that provides appellate
counsel in all noncapital felony appeals—almost never sought review in the

57. I make this framing choice consciously because introducing these innovations through
the mantle of guilt or innocence may invite the reader into the cognitive trap of valuing each
move differently based on whether the person who generated it was factually innocent or not.
Nonetheless, I make this choice while mindful not to avoid acknowledging the offenses or the
topic of violence. I include information about the alleged crimes and convictions in footnotes.
These choices are far from perfect, but they aim to focus on the decarceral ideas. I continue
to grapple with whether this is the right approach.
58. Emily Bazelon, Shadow of a Doubt, N.Y. TIMES MAG. (Jan. 15, 2020),
https://www.nytimes.com/interactive/2020/01/15/magazine/split-jurors.html
[https://perma.cc/GN57-C8R4].
59. Id.; see also State v. Hicks, 2008-0511 (La. App. 1 Cir. 6/26/08); 992 So. 2d 565
(observing that the Louisiana Department of Public Safety & Corrections created the “inmate
counsel substitute” position as one way to effectuate the right of access to the courts articulated
by the U.S. Supreme Court in Bounds v. Smith, 430 U.S. 817 (1977), overruled in part on
other grounds by Lewis v. Casey, 518 U.S. 343, 354 (1996)); cf. Robin Bunley, Making Bricks
Without Straw: Legal Training for Female Jailhouse Lawyers in the Louisiana Penal System,
68 UCLA L. REV. DISCOURSE 128, 130–36 (2021) (contrasting the comparatively minimal and
deficient training offered to counsel substitutes incarcerated in Louisiana’s only prison for
women).
60. Telephone Interview with G. Benjamin Cohen, Chief of Appeals, Orleans Parish Dist.
Att’y’s Office (Oct. 11, 2021). Cohen was previously Of Counsel at the Promise of Justice
Initiative, a nonprofit organization in New Orleans that provides litigation, advocacy, and
support services for people impacted by the criminal legal system. In that capacity, he was
counsel of record for the petitioner in Ramos v. Louisiana. See Brief for Petitioner, Ramos v.
Louisiana, 140 S. Ct. 1390 (2020) (No. 18-5924); Matt Sledge, New Orleans DA Jason
Williams Hires Ben Cohen, Lawyer Who Led Push Against Split Juries, NEW ORLEANS
ADVOC. (Feb. 9, 2021), https://www.nola.com/news/courts/article_90fe45ce-6a32-11eb9bb1-ff8554e00cce.html [https://perma.cc/WF5Q-C7C2].
61. Telephone Interview with G. Benjamin Cohen, supra note 60; Bazelon, supra note 58.

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Louisiana Supreme Court via a writ of certiorari.62 Absent a writ, people in
prison would find their constitutional claims defaulted in federal court.63
Duncan made a written public records request for LAP’s policies on
exhaustion.64 The head of appeals denied the request on the basis that
Duncan was not a “person” entitled to request the records.65
In Angola, Duncan met G. Ben Cohen, a lawyer who represented people
on Louisiana’s death row.66 Duncan forwarded him LAP’s public records
response.67 Unable to persuade LAP to exhaust its clients’ claims to the
state’s highest court, Duncan decided to take on this role.68 Alone and by
organizing other inmate counsel substitutes, Duncan preserved constitutional
claims for hundreds of people in prison.69 Nearly everyone in Angola went
to Duncan to file writs in the Louisiana Supreme Court.70 With a ninth-grade
education, Duncan did “what the entire public defender system[] of
Louisiana . . . failed to do.”71
Among the claims that Duncan preserved was a challenge to Louisiana’s
nonunanimous jury rule.72 Of the over 6,000 people imprisoned in Angola,
three out of four are serving a life sentence without parole.73 Hundreds

62. Telephone Interview with G. Benjamin Cohen, supra note 60; Email from G. Ben
Cohen, Chief of Appeals, Orleans Parish Dist. Att’y’s Office, to author (Oct. 11, 2021); see
also Ross v. Moffitt, 417 U.S. 600, 612 (1974) (holding that there is no right to counsel in
certiorari proceedings after direct appeal). See generally LA. APP. PROJECT,
http://appellateproject.org/ [https://perma.cc/ZNQ4-57WG] (last visited Sept. 2, 2022).
63. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (holding that the failure to present
claims for discretionary review to a state court of last resort procedurally bars federal review);
Telephone Interview with G. Benjamin Cohen, supra note 60 (stating that this was why the
vast majority of case law coming from the Louisiana Supreme Court was driven by state writs).
64. Telephone Interview with G. Benjamin Cohen, supra note 60.
65. Id.; see LA. STAT. ANN. § 44:31.1 (2022) (excluding, with limited exception, people
serving a felony sentence who have exhausted their appellate remedies from the definition of
“person” entitled to access public records).
66. Telephone Interview with G. Benjamin Cohen, supra note 60.
67. Id.
68. Email from G. Ben Cohen, supra note 62; Telephone Interview with G. Benjamin
Cohen, supra note 60; LA. APP. PROJECT, supra note 62.
69. Telephone Interview with G. Benjamin Cohen, supra note 60 (stating that Duncan
exhausted claims in the Louisiana Supreme Court so that people in prison could later file a
federal habeas petition or petition for certiorari to the U.S. Supreme Court); Email from G.
Ben Cohen, supra note 62.
70. Telephone Interview with G. Benjamin Cohen, supra note 60 (“[Duncan] put the
entire criminal legal system on his back”); Email from G. Ben Cohen, supra note 62;
cf. ABU-JAMAL, supra note 50, at 137–44, 207 (exploring why many people in jails and prisons
“turn to those imprisoned with themselves,” given the absence of high quality indigent defense
in the free world and the hollowed meaning of the right to effective assistance of counsel).
71. Email from G. Ben Cohen, supra note 62.
72. Id.; see also Bazelon, supra note 58.
73. Roby Chavez, Aging Louisiana Prisoners Were Promised a Chance at Parole After
10 Years. Some Are Finally Free, PBS (Nov. 26, 2021, 4:13 PM), https://www.pbs.org/
newshour/nation/aging-louisiana-prisoners-were-promised-a-chance-at-parole-after-10years-some-are-finally-free [https://perma.cc/3WH9-RDZE] (stating that Angola, which was
built on the site of a former slave plantation, is the largest maximum-security prison in the
United States).

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among them were convicted by a 10–2 or 11–1 vote,74 where one or two
jurors voted to acquit. In Angola, Duncan too often came upon divided
verdicts where he thought that the one or two dissenters had it right.75 He
researched how split verdicts in criminal cases could be constitutional.76
In a deeply fractured set of opinions in the 1972 case Apodaca v. Oregon,77
five justices of the U.S. Supreme Court found that the Sixth Amendment did
not require unanimous verdicts in state criminal trials.78 The tangled decision
had grave implications in Louisiana, which has historically boasted the
highest incarceration rate in the nation.79 Duncan resolved to petition the
Court to reconsider Apodaca.80 The split-verdict rule did not implicate his
own case; he was convicted by a unanimous jury.81 Still, Duncan understood
split verdicts as “a civil rights issue affecting many, many people.”82
Louisiana and Oregon were the only states that allowed a person to be
convicted of a serious felony by a nonunanimous jury.83 Duncan presented

74. Assoc. Press, Report: 1,500 La. Inmates Convicted by Nonunanimous Juries,
SHREVEPORT TIMES (Nov. 21, 2020, 7:29 PM), https://www.shreveporttimes.com/story/news/
local/louisiana/2020/11/21/report-1-500-inmates-louisiana-convicted-nonunanimousjuries/6378369002/ [https://perma.cc/35CJ-38N7].
75. Bazelon, supra note 58.
76. Adam Liptak, A Relentless Jailhouse Lawyer Propels a Case to the Supreme Court,
N.Y. TIMES (Aug 5, 2019), https://www.nytimes.com/2019/08/05/us/politics/supreme-courtnonunanimous-juries.html [https://perma.cc/YM5G-HYYV].
77. 406 U.S. 404 (1972) (plurality opinion).
78. Four justices concluded that the Sixth Amendment did not require unanimous jury
verdicts in either federal or state criminal trials. Id. at 406. Justice Lewis F. Powell, Jr., in a
concurring opinion for a companion case, stated that the Sixth Amendment required juror
unanimity in federal but not state criminal trials. Johnson v. Louisiana, 406 U.S. 366, 369
(1972) (Powell, J., concurring). Four dissenting justices concluded that the Sixth Amendment
required unanimous verdicts in both federal and state trials. See Nina Varsava, Precedent on
Precedent, 169 U. PA. L. REV. ONLINE 118, 121 (2020). Under the narrowest-grounds
approach, state and federal courts accepted Justice Powell’s concurring opinion as controlling.
Id. (collecting cases).
79. Chavez, supra note 73; see How Louisiana Became the World’s ‘Prison Capital,’
NPR (June 5, 2012, 11:38 AM), https://www.npr.org/2012/06/05/154352977/how-louisianabecame-the-worlds-prison-capital [https://perma.cc/KNP3-MWDY].
80. Bazelon, supra note 58.
81. Liptak, supra note 76 (stating that Duncan pursued the split-jury issue “when it was
unpopular,” when “no one was on it,” when “no press was reporting it” and when “no one
thought it was going anywhere” (quoting former director of Innocence Project New Orleans
Emily Maw)).
82. Bazelon, supra note 58 (quoting Cohen).
83. Emily Maw & Jee Park, Do Non-Unanimous Verdicts Discriminate?: Louisiana
Needs to Know, NEW ORLEANS ADVOC. (July 7, 2021), https://www.nola.com/opinions/
article_a48bd5c9-757f-508d-9c43-92031b5a5d6b.html
[https://perma.cc/C9V7-AWPS]
(“(Louisiana allows 10–2 and Oregon 11–1). But Louisiana is alone in allowing a citizen to
be sentenced to spend the rest of his life in prison (without parole) by a jury in which two
people have a reasonable doubt that he did it.”). But unanimous verdicts were required for
capital crimes in Louisiana and first-degree murder in Oregon. See Angela A. Allen-Bell, How
the Narrative About Louisiana’s Non-Unanimous Criminal Jury System Became a Person of
Interest in the Case Against Justice in the Deep South, 67 MERCER L. REV. 585, 589 (2016);
Andrew Cohen, Will the Supreme Court Address Louisiana’s Flawed Jury System?, ATLANTIC
(Apr. 23, 2014), https://www.theatlantic.com/national/archive/2014/04/Louisiana/336072/
[https://perma.cc/RL47-53QR].

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the plan to Cohen, who agreed to take any split-jury case Duncan brought to
him to the Supreme Court.84
Between 2004 and 2019, the duo filed twenty-two petitions for writs of
certiorari.85 The nearly two dozen petitions could be brought because
Duncan meticulously exhausted constitutional claims in hundreds of cases to
ensure that people in Angola had access to the courts.86 The Court denied
certiorari every time.87 Duncan and Cohen’s persistence did not escape
notice. In the 2010 Second Amendment–incorporation case McDonald v.
City of Chicago,88 Justice John Paul Stevens declared that the Court has
“resisted a uniform approach to the Sixth Amendment’s criminal jury
guarantee” by demanding unanimous verdicts in federal, but not state, trials,
and “[i]n recent years . . . repeatedly declined to grant certiorari to review
that disparity.”89 It was Justice Stevens’s final dissent.90
Accompanying Duncan’s exhaustion-plus-certiorari approach was an
effort to build momentum in the Louisiana state courts. To that end, from
inside prison, Duncan underscored to the indigent defense bar the importance
of preserving the unanimity issue at trial.91 As a result, in about 2008, the
Orleans Public Defenders instituted a policy to move for unanimous juries in
all criminal trials.92 In their template pleading, the defenders added a crucial
fact: the split-jury rule was first enshrined in Louisiana’s constitution in
1898.93 The stated purpose of the 1898 constitutional convention was to
“establish the supremacy of the white race.”94

84. Bazelon, supra note 58 (quoting Cohen).
85. Telephone Interview with G. Benjamin Cohen, supra note 60.
86. Id. (describing the almost two dozen petitions as “the tip of the iceberg”).
87. Bazelon, supra note 58.
88. 561 U.S. 742 (2010).
89. Id. at 867–68 (Stevens, J., dissenting) (citing Petition for Writ of Certiorari, Lee v.
Louisiana, 555 U.S. 823 (2008) (No. 07–1523)); Email from G. Ben Cohen, Chief of Appeals,
Orleans Parish Dist. Att’y’s Office, to author (Dec. 30, 2021) (noting that Lee had different
counsel of record, but Duncan shepherded that petition, encouraging Lee to exhaust the claim).
90. Joseph Blocher & Darrell A.H. Miller, Stevens, J., Dissenting: The Legacy of Heller,
JUDICATURE, Fall/Winter 2019, at 9, 11.
91. Telephone Interview with Colin Reingold, Dir. of Strategic Crim. Lit., Promise of
Just. Initiative, former Lit. Dir. & Senior Couns., Orleans Pub. Defs. (Jan. 6, 2022) (stating
that Duncan, through Cohen, “drilled into” the Orleans Public Defenders to preserve the jury
unanimity issue in every case that went to trial); Email from G. Ben Cohen, Chief of Appeals,
Orleans Parish Dist. Att’y’s Office, to author (Jan. 6, 2022) (same).
92. Telephone Interview with Colin Reingold, supra note 91 (stating that members of the
private bar observed public defenders filing pretrial motions for unanimous juries, so they
eventually began to preserve the issue as well).
93. Id.
94. OFFICIAL JOURNAL OF THE PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF THE
STATE OF LOUISIANA 374 (H. Hearsey ed., 1898).

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After nearly thirty years, Duncan was released in 2011.95 He continued to
fill a role he assumed on the inside,96 but with far greater resources. Every
day, he read all of the opinions issued by the Louisiana Circuit Courts of
Appeal.97 When a split verdict was affirmed on appeal, Duncan informed
the inmate counsel substitute at Angola who then exhausted the jury
unanimity claim in the state supreme court.98 Duncan and Cohen then chose
cert-worthy cases to take to the U.S. Supreme Court.99 After his release,
Duncan also began traveling the state to talk about changing the split-jury
rule and to educate the defense bar, community groups, and law schools
about the rule’s racist origins.100
As the defense bar began to preserve the issue for appeal and began to
present equal protection arguments based on the rule’s racist origins, state
courts took interest but rejected the claims, based in part on a lack of evidence
on disparate impact,101 which one court foreboded “would be impossible . . .
to show.”102 This judicial refrain led The Advocate, Louisiana’s largest daily
newspaper, to scour records in thousands of felony trials, revealing the
profound and enduring racial impact of Louisiana’s jury scheme.103 The
95. Liptak, supra note 76. Innocence Project New Orleans (IPNO) secured Duncan’s
release in 2011 as part of an agreement with the state in which he received time served in
exchange for pleading guilty to a lesser charge. Calvin Duncan, INNOCENCE PROJECT NEW
ORLEANS,
https://ip-no.org/what-we-do/client-representation/freed-clients/calvin-duncan/
[https://perma.cc/2LG6-CVHJ] (last visited Sept. 2, 2022) (noting that Duncan was convicted
of first-degree murder in 1985, where the evidence against him consisted of a fifteen-year-old
witness who made a cross-racial identification nine months after the crime and “guilty
knowledge” statements that Duncan allegedly made to police when he was arrested). Duncan
always maintained his innocence. Id.; Liptak, supra note 76. Taking on his case in 2003,
IPNO discovered that the state withheld evidence that Duncan had no guilty knowledge of the
crime, that the assailant’s description was not consistent with Duncan’s appearance, and that
the identification procedure was unreliable. Calvin Duncan, supra.
96. Telephone Interview with G. Benjamin Cohen, supra note 60.
97. Id.
98. Id. Duncan mailed the appellate opinions to the inmate counsel substitute. Telephone
Interview with Katherine Mattes, Dir., Crim. Just. Clinic, Tulane L. Sch. (Oct. 12, 2021).
Otherwise, by the time defense counsel received the decision in the mail, sent it to the prison,
and the prison delivered it to the individual (assuming the individual was not, in the interim,
transferred to another prison), there would be little time left to file a petition for a writ of
certiorari. Id.; Telephone Interview with G. Benjamin Cohen, supra note 60.
99. See Ellisa Valo, Liberty and Justice, After All, LEWIS & CLARK MAG. (2021),
https://www.lclark.edu/live/news/45928-liberty-and-justice-after-all [https://perma.cc/FEX2TPZF]; Telephone Interview with G. Benjamin Cohen, supra note 60.
100. Bazelon, supra note 58.
101. See, e.g., State v. Hankton, 2012-0375 (La. App. 4 Cir. 8/2/2013), 122 So. 3d 1028,
1037–38, 1041 (acknowledging the racial animus to “disenfranchise” Black voters in the 1898
constitution but finding no evidence that race motivated the nonunanimous jury provision and
asserting that the state’s 1974 adoption of a revised nonunanimity rule, whose stated purpose
was “judicial efficiency,” cleansed any racial animus that may have motivated its introduction
in 1898); State v. Webb, 2013-0146 (La. App. 4 Cir. 1/30/2014), 133 So. 3d 258, 285–86
(finding no proof of discriminatory purpose or disparate impact).
102. Webb, 133 So. 3d at 286.
103. Jeff Adelson, Gordon Russell & John Simerman, How an Abnormal Louisiana Law
Deprives, Discriminates and Drives Incarceration: Tilting the Scales, ADVOCATE (Apr. 1,
2018), https://www.theadvocate.com/baton_rouge/news/courts/article_16fd0ece-32b1-11e88770-33eca2a325de.html [https://perma.cc/DJC9-J224].

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newspaper’s 2018 analysis showed that in parishes across Louisiana between
2011 and 2016, 40 percent of jury convictions ended with one or two
holdouts, and that Black people were 30 percent more likely than white
people to be convicted by split juries.104 More limited data in Louisiana’s
most populous parish, East Baton Rouge Parish, showed that Black jurors,
although still far more likely to convict than not, were almost three times
more likely to cast a dissenting vote than white jurors.105 Retrieving this data
was a daunting task.106
The Advocate’s 2018 series was published just as the state legislature
began debating a bill that would allow Louisiana voters to amend the state
constitution to require unanimous jury verdicts—its first serious push to
change the law since 1974.107 The grassroots group Voice of the
Experienced (VOTE), founded by Norris Henderson, who was imprisoned in
Angola with Duncan, spearheaded a vigorous campaign to educate voters to
support the ballot initiative.108 Representing the state’s forty-two district
104. Adelson, Russell & Simerman, supra note 103 (describing the study’s methodology,
data set, and conclusions); John Simerman, U.S. Supreme Court Refuses to Make Louisiana
Ban on Non-Unanimous Juries Retroactive, NEW ORLEANS ADVOC. (May 17, 2021, 9:10 AM),
https://www.nola.com/news/courts/article_40f11aa4-a8dd-11eb-ae3e-dfa9c5d97cc6.html
[https://perma.cc/FS7V-E9N8].
105. Adelson, Russell & Simerman, supra note 103; Simerman, supra note 104.
106. Parishes and judges vary widely in how and whether they record juror votes. Gordon
Russell, Why Are Louisiana Jury Votes Often Absent from Court Record?: Tilting the Scales,
NEW ORLEANS ADVOC. (Apr. 1, 2018, 8:00 AM), https://www.nola.com/news/courts/
article_f3369eb7-2ca9-58be-bbc7-37409ee3b91d.html
[https://perma.cc/XY78-5CXE]
(stating that Louisiana juries are often not polled and, when they are, judges usually seal the
results or tear them up); John Simerman, More than 1,500 Louisiana Inmates Were Convicted
by Divided Juries, New Report Says, NEW ORLEANS ADVOC. (Nov. 17, 2020, 5:48 PM),
https://www.nola.com/news/courts/article_ddba16a8-2929-11eb-9072-ff7a00598e9f.html
[https://perma.cc/U4JU-SCA4]; Maw & Park, supra note 83 (stating that no court collects this
data consistently and comprehensively); Adelson, Russell & Simerman, supra note 103
(“Even the aggregate vote count is absent from many trial records . . . .”).
107. Chris Granger, The Advocate Wins First Pulitzer Prize for Series that Helped Change
Louisiana’s
Split-Jury
Law,
ADVOCATE
(Apr.
15,
2019,
4:29
PM),
https://www.theadvocate.com/baton_rouge/news/article_dba87282-5f28-11e9-92b3bfba0cf08ab2.html [https://perma.cc/4E26-Q63B]; John Simerman & Gordon Russell,
Louisiana Voters Scrap Jim Crow-Era Split Jury Law; Unanimous Verdicts to Be Required,
ADVOCATE (Nov. 6, 2018, 9:45 PM), https://www.theadvocate.com/baton_rouge/news/
politics/elections/article_194bd5ca-e1d9-11e8-996b-eb8937ebf6b7.html [https://perma.cc/
4383-QDE6].
108. Bazelon, supra note 58; see Thomas Aiello, Non-Unanimous Juries, 64 PARISHES
(Nov. 15, 2021), https://64parishes.org/entry/non-unanimous-juries [https://perma.cc/92Z6DJSP] (discussing work from many corners to push the legislature to change the law); Norris
Henderson, What I Learned About Voting Rights in the Fields of Angola, THE MARSHALL
PROJECT (Mar. 12, 2020, 10:00 PM), https://www.themarshallproject.org/2020/03/12/what-ilearned-about-voting-rights-in-the-fields-of-angola [https://perma.cc/6HA4-89S8]. By this
time, advocacy, academic scholarship, and popular writing on the historical roots and modern
outgrowth of the split-jury rule, as well as coverage on the Supreme Court petitions, had
proliferated. See, e.g., THOMAS AIELLO, JIM CROW’S LAST STAND: NONUNANIMOUS CRIMINAL
JURY TRIALS IN LOUISIANA ix (2015) (exposing the law’s “design[] to increase convictions to
feed the state’s burgeoning convict lease system”); Allen-Bell, supra note 83, at 592–97;
Angela A. Allen-Bell, These Jury Systems Are Vestiges of White Supremacy, WASH. POST
(Sept. 22, 2017), https://www.washingtonpost.com/opinions/these-jury-systems-are-vestigesof-white-supremacy/2017/09/22/d7f1897a-9f13-11e7-9c8d-cf053ff30921_story.html

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attorneys, the Louisiana District Attorneys Association initially took a strong
position against the bill.109 After the newspaper’s coverage began, the
association opted to stay neutral; the bill then gained bipartisan momentum
and passed both chambers.110 In November 2018, by a nearly two-to-one
margin, Louisiana voters overwhelmingly approved the constitutional
amendment to require unanimous verdicts in all felony trials,111 leaving
Oregon the only remaining state to allow less-than-unanimous juries. The
amendment, however, applied only prospectively.112
The bill’s sponsor praised The Advocate’s Pulitzer Prize–winning series,
stating that without the investigative reporting, “it would have been
impossible to be successful, not just with the legislators but in getting the
public to vote for it.”113 The sponsor omits that the nonunanimous jury rule
was known for decades to journalists covering the Louisiana courts.114 What
made the newspaper’s reporting “ripe” was Duncan’s methodical and
rigorous push to build the issue in the courts.115 Duncan’s work inspired new
subjects of data collection,116 dramatically changing how the courts,
prosecutors, legislators, and the public thought about—to borrow a phrase
from Professor Kimberlé Crenshaw—the “endurance of the structures of

[https://perma.cc/2MZW-WQZL] (stating that eliminating unanimity “paved the way for
quick convictions that would facilitate the use of free prisoner labor as a replacement for the
loss of free slave labor”); Ken Daley, Should Juries be Unanimous?: Treme Murder Case
Raises Question for U.S. Supreme Court, NEW ORLEANS ADVOC. (Sept. 13, 2017, 4:00 PM),
https://www.nola.com/news/crime_police/article_1436dfe9-b963-5e6d-8aa2beacdee3bde2.html [https://perma.cc/AN9L-8P34] (discussing the racist roots of Louisiana’s
law and a certiorari petition by Dale Lambert); Andrew Cohen, A Vestige of Bigotry, THE
MARSHALL PROJECT (Sept. 25, 2017, 10:00 PM), https://www.themarshallproject.org/2017/
09/25/a-vestige-of-bigotry [https://perma.cc/4LKV-N93Z] (same); Email from G. Ben Cohen,
supra note 89 (stating that Duncan brought Lambert’s case to him to take to the U.S. Supreme
Court).
109. Simerman & Russell, supra note 107.
110. Id.; Granger, supra note 107.
111. See Granger, supra note 107; see also Simerman & Russell, supra note 107.
112. Simerman & Russell, supra note 107 (stating that the amendment applied only to trials
involving crimes committed on or after January 1, 2019).
113. Granger, supra note 107 (quoting Louisiana state senator JP Morrell).
114. Telephone Interview with John Simerman, Rep., New Orleans Advoc. (Dec. 17,
2021).
115. Id. (emphasizing that the newspaper began the data project because Louisiana courts
noted the absence of contemporary data showing that the split-jury rule had a lasting racial
impact); id. (noting that without Duncan’s painstaking work to educate the courts and the
defense bar, which led the state courts to pay attention, The Advocate would not have felt that
it “could have made an impact”).
116. See Adelson, Russell & Simerman, supra note 103 (referencing a rare evidentiary
hearing in 2017 where a New Orleans trial judge denied a challenge to the split-jury rule in
the absence of “a full-scale study” that “shows disproportionate impact”); Telephone
Interview with Colin Reingold, supra note 91 (stating that this pretrial hearing took place only
because Duncan “drilled into” the defense bar the importance of preserving the unanimity
issue); Telephone Interview with John Simerman, supra note 114 (stating that although verdict
data could be collected at any time, Duncan’s work in the courts gave the journalists a “reason
to do th[e] project”).

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white dominance.”117 Those racist structures would become central to the
long-awaited Supreme Court decision.
In 2019, the Supreme Court granted certiorari in the twenty-third petition
that Duncan and Cohen cowrote: Ramos v. Louisiana.118 In 2020, the Court
overturned the 2016 murder conviction of Evangelisto Ramos, who was
serving a life sentence without parole after a 10–2 jury verdict.119 Calling
Apodaca “gravely mistaken,” the Court ruled that the Sixth Amendment
required a unanimous jury verdict in state criminal trials for serious
offenses.120 The momentous decision announced a new rule of criminal
procedure.121
“Without Calvin [Duncan], Ramos wouldn’t exist.”122 His unremitting
drive to eradicate laws rooted in racial animus continues to reduce the prison
population. Today, countless people accused of serious felonies in Oregon
and Louisiana will likely face lower charges that carry less prison time, with
some saved entirely from conviction and imprisonment.123 The impact is not
limited to future cases or those that were pending on direct appeal at the time
Ramos was decided. Politicians in Louisiana and Oregon have harnessed
Ramos to pursue new strategies to reduce the time that people stay in prison,
to release people from prison, or both. Although the Supreme Court held in
a subsequent case that the new rule announced in Ramos did not apply
retroactively to overturn final convictions on federal collateral review,124 the
top prosecutor in New Orleans opted not to wait for the retroactivity decision
and vowed to review the roughly 340 cases in Orleans Parish whose split-jury
convictions became final.125 Oregon lawmakers are also considering taking
117. See Kimberlé Williams Crenshaw, Race to the Bottom: How the Post-Racial
Revolution Became a Whitewash, BAFFLER (June 2017), https://thebaffler.com/salvos/race-tobottom-crenshaw [https://perma.cc/4DJZ-ZXLX].
118. 139 S. Ct. 1318 (2019) (mem.) (granting certiorari); see Telephone Interview with
G. Benjamin Cohen, supra note 60.
119. Ramos v. Louisiana, 140 S. Ct. 1390, 1391 (2020).
120. Id. at 1397, 1405.
121. See id. at 1406.
122. Telephone Interview with G. Benjamin Cohen, supra note 60 (“Calvin was a relentless
force in a place that is designed to suppress hope.”); Valo, supra note 99 (“The reason why
we don’t have nonunanimous jury convictions anymore is because Calvin didn’t give up.”
(quoting Lewis & Clark Law School professor Aliza Kaplan)).
123. See, e.g., Gordon Russell, John Simerman & Jeff Adelson, Louisiana Leads Nation in
Locking Up People for Life; Often, Jurors Couldn’t Even Agree on Guilt, NEW ORLEANS
ADVOC. (Apr. 21, 2018, 11:00 PM), https://www.nola.com/news/article_175540ba-e44d5ea0-a734-970600159c77.html [https://perma.cc/BVS9-VHTQ]; Ramos, 140 S. Ct. at 1417
(Kavanaugh, J., concurring in part) (“Apodaca sanctions the conviction at trial or by guilty
plea of some defendants who might not be convicted under the proper constitutional rule
(although exactly how many is of course unknowable).”); Brief of Amicus Curiae State of
Oregon in Support of Respondent at 12, Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (No.
18-5924) (stating that the number of affected cases pending on direct appeal in Oregon “easily
may eclipse a thousand”).
124. Edwards v. Vannoy, 141 S. Ct. 1547, 1554 (2021).
125. See Kevin McGill, Prosecutor Moves to Vacate 22 Non-Unanimous Jury Convictions,
U.S. NEWS (Feb. 26, 2021), https://www.usnews.com/news/best-states/louisiana/
articles/2021-02-26/prosecutor-moves-to-vacate-22-non-unanimous-jury-convictions
[https://perma.cc/VQ3F-HLQ5] (noting that the more than 300 people with split verdicts in

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up the Court’s invitation to apply the new rule in state post-conviction
proceedings.126 A bill proposed in the Oregon legislature would open the
door to vacating hundreds, or, by some estimates, more than 1,000 past
nonunanimous convictions to be retried, pled out, or dismissed.127 And the
Louisiana Supreme Court is poised to decide a case that could determine
whether the more than 1,000 people who remain in prison following split
verdicts are entitled to new trials.128
Duncan’s inside-outside synergistic collaboration ushered in new
constitutional and public understandings about the enduring role of racism in
shaping who the law sends to prison. In a somewhat surprising turn, the
Ramos Court began its opinion by underscoring the racist origins of
Louisiana’s and Oregon’s majority-jury rules.129 In Louisiana, the Court
New Orleans are out of about 1,600 in the state); Sledge, supra note 60; Erik Ortiz, Ahead of
Supreme Court’s Decision on Split Juries, New Orleans DA Tackles ‘Jim Crow Office,’ NBC
(May 9, 2021, 1:30 AM), https://www.nbcnews.com/news/us–news/ahead-supreme-court-sdecision-split-juries-new-orleans-da-n1266688 [https://perma.cc/TX4W-CK69]. The district
attorney also moved to vacate convictions of twenty-two people convicted of felonies by split
juries. McGill, supra (noting that five cases were reviewed to determine whether charges
should have ever been filed and, of the seventeen being retried, sixteen agreed to plead guilty
as charged or to lesser charges, seeking reductions in sentences that would likely have kept
them behind bars for life); Ortiz, supra (noting that these twenty-two split-jury convictions
occurred between 1974 and 2014).
126. Vannoy, 141 S. Ct. at 1559 n.6 (“States remain free, if they choose, to retroactively
apply the jury-unanimity rule as a matter of state law in state post-conviction proceedings.”).
127. Conrad Wilson, Oregon Lawmakers to Consider Relief for Those Convicted by
Non-Unanimous Juries, OR. PUB. BROAD. (Nov. 16, 2021, 5:00 AM),
https://www.opb.org/article/2021/11/16/non-unanimous-juries-new-oregon-legislation/
[https://perma.cc/AZ8C-NBLY] (reporting that “[t]he idea for the legislation follows two
recent U.S. Supreme Court rulings” and that, according to the Oregon Department of Justice,
“many cases will result in an outright dismissal” (quoting Oregon Department of Justice
legislative director Kimberly McCullough)); Noelle Crombie, Oregon Lawmakers to Take Up
Bill that Could Toss out Hundreds of Felony Convictions Based on Split Jury Verdicts,
OREGONIAN (Nov. 17, 2021, 11:08 AM), https://www.oregonlive.com/crime/2021/11/oregonlawmakers-to-take-up-bill-that-could-toss-out-hundreds-of-felony-convictions-based-onsplit-jury-verdicts.html [https://perma.cc/Y66Y-QNN8].
128. See State v. Reddick, 2021-01893 (La. 2/15/22); 332 So. 3d 1173 (mem.) (granting
petition); Nick Chrastil, Group Has Filed More than 1,000 Post-Conviction Relief
Applications Challenging Non-Unanimous Jury Verdicts Since Supreme Court Ruling, THE
LENS (Apr. 19, 2021), https://thelensnola.org/2021/04/19/group-has-filed-more-than-1000post-conviction-relief-applications-challenging-non-unanimous-jury-verdicts-since-supremecourt-ruling/ [https://perma.cc/VL7R-ZWDP] (stating that post-Ramos, attorneys for the
Promise of Justice Initiative “filed over 1,000 post-conviction relief petitions throughout the
state for defendants who were convicted on split-jury verdicts whose convictions were
finalized”); Promise of Justice Initiative Argues Before Louisiana Supreme Court in Reddick
v. Louisiana, a Case That Will Decide the Fate of 1,500 People Who Remain Incarcerated as
a Result of Jim Crow Juries, PROMISE OF JUST. INITIATIVE (May 10, 2022),
https://promiseofjustice.org/news/promise-of-justice-initiative-argues-before-louisianasupreme-court-in-reddick-v-louisiana-a-case-that-will-decide-the-fate-of-1500-people-whoremain-incarcerated-as-a-result-of-jim-crow-juries-j4nla
[https://perma.cc/2BS8-DPPH];
Beth Schwartzapfel, Their Sentences Are Unconstitutional—But They’re Still in Prison, THE
MARSHALL PROJECT (May 10, 2022, 6:00 AM), https://www.themarshallproject.org/2022/
05/10/their-sentences-are-unconstitutional-but-they-re-still-in-prison
[https://perma.cc/8ZRX-ALJC].
129. Ramos v. Louisiana, 140 S. Ct. 1390, 1394 (2020).

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observed, the 1898 constitutional convention delegates were aware that overt
exclusion of Black jurors would be struck down by the Supreme Court130 and
sought to undermine the influence of Black jurors in a different way by
“sculpt[ing] a ‘facially race-neutral’ rule permitting ten-to-two verdicts in
order ‘to ensure that African-American juror service would be
meaningless.’”131 The Court also foregrounded the roots of Oregon’s rule,
which traced back to the Ku Klux Klan and efforts to dilute the vote of racial
and religious minorities.132 Professor Melissa Murray conceptualizes this
move as reflecting the Court’s interest in reconsidering and overruling
precedent, in part, to redress racial injustice.133
Over 1,500 people remain in Louisiana prisons following nonunanimous
jury verdicts, of whom 80 percent are Black and more than 60 percent are
serving life sentences without parole.134 The majority-jury rule incentivized
130. Strauder v. West Virginia, 100 U.S. 303, 304, 310 (1880) (prohibiting states from
systematically excluding Black people from juries); see also Ramos, 140 S. Ct. at 1417
(Kavanaugh, J., concurring in part) (noting that Black jurors had won the right to serve on
juries through the Fourteenth Amendment in 1868 and the Civil Rights Act of 1875).
131. Ramos, 140 S. Ct. at 1394 (plurality opinion) (quoting State v. Maxie, No.
13-CR-72522 (La. 11th Jud. Dist. Oct. 11, 2018); and then citing Thomas Ward Frampton,
The Jim Crow Jury, 71 VAND. L. REV. 1593, 1599–1620 (2018) (providing detailed historical
account of the racist roots of Louisiana’s nonunanimous jury law)); see also id. at 1417–19
(Kavanaugh, J., concurring) (describing the nonunanimous jury as “thoroughly” racist in its
origins).
132. Id. at 1394 (plurality opinion).
133. Melissa Murray, Race-ing Roe: Reproductive Justice, Racial Justice, and the Battle
for Roe v. Wade, 134 HARV. L. REV. 2025, 2080–81 (2021) (“[T]he Ramos majority went
beyond simply recasting Apodaca as an improperly reasoned Sixth Amendment ‘outlier.’
Race, the Ramos majority insisted, also shaped its consideration of Apodaca’s precedential
value.”); see Ramos, 140 S. Ct. at 1405 (criticizing the Apodaca plurality for “spen[ding]
almost no time [in the decision] grappling with . . . the racist origins of Louisiana’s and
Oregon’s laws”). In their concurrences, Justices Sotomayor and Kavanaugh echoed these
concerns. Id. at 1408 (Sotomayor, J., concurring) (“[T]he racially biased origins of the
Louisiana and Oregon laws uniquely matter here.”); id. at 1417–18 (Kavanaugh, J., concurring
in part) (stating that “the Jim Crow origins and racially discriminatory effects” of
nonunanimous juries operate “as an engine of discrimination against [B]lack defendants,
victims, and jurors” and “strongly support overruling Apodaca”); see also Charles Barzun,
The
Constitution
and
Genealogy,
BALKINIZATION
(July
6,
2020),
https://balkin.blogspot.com/2020/07/the-constitution-and-genealogy.html [https://perma.cc/
HY2P-7V58] (“Historical arguments about the social and political origins of legislation used
to be, except in rare cases, treated as irrelevant to their constitutional validity. Now such
histories—which we might call ‘genealogies’—may be relevant to constitutional analysis as a
matter of law.”).
134. New Report: 80% of People Still Imprisoned Due to Jim Crow Jury Verdicts Are
Black, Most Are Serving Life Sentences, PROMISE OF JUST. INITIATIVE (Nov. 18, 2020),
https://promiseofjustice.org/news/2020/11/18/new-promise-of-justice-initiative-report-80-ofpeople-still-imprisoned-due-to-jim-crow-jury-verdicts-are-black-most-are-serving-lifesentences [https://perma.cc/JS7L-KEG2] (finding that 62 percent of people still in prison after
split verdicts are serving life sentences, compared to just 16.3 percent of Louisiana’s overall
adult prison population). Even the latter percentage is the highest in the nation. Lea Skene,
Louisiana’s Life Without Parole Sentencing the Nation’s Highest—and Some Say That Should
Change, ADVOCATE (Dec. 7, 2019, 4:59 PM), https://www.theadvocate.com/baton_rouge/
news/article_f6309822-17ac-11ea-8750-f7d212aa28f8.html [https://perma.cc/ZB76-PEEE];
see also New Report: 80% of People Still Imprisoned Due to Jim Crow Jury Verdicts Are
Black, Most Are Serving Life Sentences, supra (stating that the nonunanimous jury rule helped

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prosecutors to charge more serious crimes than the evidence warranted—
crimes that carried more severe penalties—resulting in “more people serving
more time in prison.”135 This is why the comparatively small number of new
prison admissions that followed jury trials “carve[d] a larger footprint in
Louisiana’s towering incarceration rate.”136 In a system of pleas, split juries
cast a long shadow. The majority-jury rule gave prosecutors an advantage in
plea negotiations, leading accused people to weigh a guilty plea—often to
more severe charges for which prosecutors would have a hard time obtaining
a unanimous conviction—“against the tall odds of convincing at least three
jurors that [the state] got it wrong.”137 Nonunanimous juries helped
Louisiana become the nation’s leader in locking people up for life.138
Spearheading their demise from inside a cage139 occasioned their
elimination.
make Louisiana the state with the most wrongful convictions per capita in the Deep South);
Nicholas Chrastil, A ‘Jim Crow Jury’ Prisoner Fights for Freedom, AL JAZEERA (Oct. 4,
2021), https://www.aljazeera.com/features/2021/10/4/a-jim-crow-jury-prisoner-fights-forfreedom [https://perma.cc/D94V-Z3TM] (stating that it is impossible to know how many
people in Louisiana were convicted by split juries). For similar reasons it remains unclear
how many people in Oregon were convicted by split juries. See Crombie, supra note 127
(noting stark racial disparities in split-verdict convictions in Oregon).
135. Russell, Simerman & Adelson, supra note 123. A Republican state senator who was
an assistant district attorney in New Orleans in the late 1980s admitted to filing more severe
felony charges than the evidence could support simply to ensure that unanimity would not be
required. John Simerman, For Prosecutors, Louisiana’s Split-Verdict Law Produces Results,
NEW ORLEANS ADVOC. (Apr. 21, 2018, 11:00 PM), https://www.nola.com/news/courts/
article_e737f0e7-7d8a-5fc7-84bf-22f33277ea89.html [https://perma.cc/A35S-BF5V] (stating
that it was easier “to convict ‘em with 10 out of 12 (jurors)—I’m not proud of that—than it is
6 out of 6” (quoting Louisiana state senator Dan Claitor)); id. (noting that nonunanimous juries
offer a “longer menu” of compromise verdicts if the jury decides not to convict of the most
serious charge). Misdemeanors and some felonies in Louisiana are tried by “six-pack” juries
where unanimity is required. Id.; see Burch v. Louisiana, 441 U.S. 130, 134 (1979) (holding
that a nonunanimous six-person jury verdict in a state criminal trial for a nonpetty offense is
unconstitutional).
136. Russell, Simerman & Adelson, supra note 123.
137. Id. (noting that because the law armed prosecutors with such an advantage, the deals
offered were not as favorable to the accused, which almost “force[d] some [people accused of
crimes] to go to trial, figuring they ha[d] little to lose”).
138. Skene, supra note 134 (stating that Louisiana has the highest percentage of people
serving life without parole in the nation); Russell, Simerman & Adelson, supra note 123.
139. In fact, Duncan’s “legacy is broader than one specific legal issue.” Telephone
Interview with G. Benjamin Cohen, supra note 60. Almost anyone in Angola at the time,
whose claims survived to federal court on any constitutional issue, reached that pinnacle via
Duncan. Id.; see also KAREN HOUPPERT, CHASING GIDEON: THE ELUSIVE QUEST FOR POOR
PEOPLE’S JUSTICE 148–49 (2013) (stating that Duncan initiated the noncapital appeal in Juan
Smith’s case, which culminated in the Supreme Court reversing Smith’s murder conviction
by an 8–1 vote in Smith v. Cain, 565 U.S. 73 (2012), resulting in the vacatur of Smith’s death
sentence). He also won federal habeas petitions for and secured the release of others in
Angola. Liptak, supra note 76; Telephone Interview with Katherine Mattes, supra note 98
(stating that Duncan secured habeas relief for a person with mental illness whom he observed
was unable to initiate a case and, as such, he had access to information that people on the
outside did not). Journalist Wilbert Rideau was released in 2005 after Duncan helped him
secure a new trial. See Liptak, supra note 76 (noting that Rideau described Duncan as “the
most brilliant legal mind in Angola,” stating, “I would not be [out] but for Calvin”); WILBERT
RIDEAU, IN THE PLACE OF JUSTICE: A STORY OF PUNISHMENT AND DELIVERANCE 236, 337

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2. Armed Career Criminal Act
Popular writing and legal elites chronicle the myriad of ways that people
in prison depend on the legal profession to secure their release from prison.
Far less attention is paid to—and far less is known about—how the legal
system and the legal profession harness the agency and aptitude behind bars
to generate long-term decarceral outcomes.
In 2015, William Dale Wooden, a white man, was indicted in federal court
in Tennessee on a felon-in-possession charge.140 He maintained his
innocence.141 His federal public defender advised him that he was facing a
sentence of twenty-one to twenty-seven months in prison if he were to plead
guilty.142 Relying on that advice, Wooden entered a guilty plea in August
2016.143 His counsel’s assessment was correct. The presentence report
recommended that Wooden receive a sentence within the Federal Sentencing
Guidelines’ range of twenty-one to twenty-seven months of
imprisonment.144 The government filed a notice that it did not object.145
Having served much of his expected sentence, Wooden anticipated release
by Christmas 2016.146
Shortly before sentencing, the government changed course and sought to
label Wooden a career criminal under the federal Armed Career Criminal Act

(2010). Duncan was a resource even for seasoned attorneys. Liptak, supra note 76 (stating
that capital defense lawyers, stumped by a legal question from now Tulane Law School
professor Katherine Mattes, advised her to visit Duncan, who was able to answer her
question); Video Interview with Emily Bolton, Dir., APPEAL, former Dir. & Founder,
Innocence Project New Orleans (Oct. 14, 2021) (stating that Duncan’s vision led her to focus
on the “lost” population—over 4,000 people sentenced to life without parole—when
launching IPNO); Calvin Duncan, supra note 95 (noting that Duncan helped establish IPNO
while he was in prison); see also Bazelon, supra note 58 (stating that Duncan helped train
other inmate counsel substitutes before his release). Duncan also brought to prosecutors’
attention the forgotten “10-6ers,” the oldest and longest-serving people in Louisiana prisons
who are only now being resentenced and released. Email from G. Ben Cohen, Chief of
Appeals, Orleans Parish Dist. Att’y’s Office, to author (Dec. 29, 2021); see also Neil Vigdor,
They Were Promised a Chance at Parole in 10 Years. It’s Been 50., N.Y. TIMES
(Oct. 1, 2021), https://www.nytimes.com/2021/10/01/us/louisiana-inmates-release.html
[https://perma.cc/2NRP-ZCN5] (reporting that dozens of people whose plea deals made them
eligible for parole in ten years and six months have remained in prison for over fifty years
after Louisiana stiffened and then eliminated parole eligibility in the 1970s); Chavez, supra
note 73 (explaining that prosecutors and other stakeholders were unaware of the “10/6 lifers”).
140. Indictment, United States v. Wooden, No. 15-CR-12 (E.D. Tenn. Mar. 3, 2015).
141. Memorandum Opinion and Order at 4, 6, United States v. Wooden, No. 15-CR-12
(E.D. Tenn. Nov. 29, 2017), 2017 U.S. Dist. LEXIS 195934, at *5, *7.
142. Memorandum of Law in Support of Motion to Withdraw Guilty Plea at 1–2, United
States v. Wooden, No. 15-CR-12 (E.D. Tenn. June 21, 2017).
143. Id. at 2; Memorandum Opinion and Order, supra note 141, at 2, 5–6.
144. Memorandum Opinion and Order, supra note 141, at 2.
145. Id.
146. Id.; Memorandum of Law in Support of Motion to Withdraw Guilty Plea, supra note
142, at 2.

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of 1984147 (ACCA).148 The 1980s-era law mandates a fifteen-year minimum
sentence on a person convicted of a felon-in-possession charge who also has
three prior convictions for a “violent felony,” a “serious drug offense,” or
both, “committed on occasions different from one another.”149 The ACCA
imposes one of the harshest punishments in federal law.150
The government argued that Wooden was “precisely the kind of individual
whom the ACCA was meant to punish.”151 Two decades earlier, in 1997,
Wooden and others breached the exterior of a mini-storage facility in Georgia
on one night and broke through the drywall that connected ten of the units.152
The government argued that the incident, which involved ten separate storage
units and resulted in convictions on ten counts of burglary, qualified as ten
separate ACCA predicate offenses “committed on occasions different from
one another.”153
Wooden withdrew his guilty plea on the felon-in-possession charge.154 In
2018, he was convicted by a jury.155 At sentencing, the government argued
that the two-decades-old mini-storage burglaries “were committed on
occasions different from one another” based on the principle that “[y]ou
cannot be in two locations at the same time.”156 Wooden challenged his
147. Pub. L. No. 98-473, 98 Stat. 2185 (codified as amended in scattered sections of the
U.S.C.).
148. The government relied on an intervening case, United States v. Gundy, 842 F.3d 1156
(11th Cir. 2016). Memorandum of Law in Support of Motion to Withdraw Guilty Plea, supra
note 142, at 2, 6; see also Memorandum Opinion and Order, supra note 141, at 2–3.
149. 18 U.S.C. § 924(e)(1). Enacted in 1984, ACCA’s original iteration imposed a
mandatory-minimum sentence of fifteen years for unlawful possession of a firearm if the
accused person had “three previous convictions . . . for robbery or burglary, or both,” under
state or federal law. Armed Career Criminal Act of 1984 § 1802. Two years later, Congress
amended the provision to apply in cases where the three prior convictions were “for a violent
felony or a serious drug offense, or both.” Career Criminals Amendment Act of 1986, Pub. L.
No. 99-570, § 1402(a), 100 Stat. 3207-39, 3207-39 (codified as amended at 18 U.S.C.
§ 924(e)(1)). In 1988, Congress added the provision that predicate offenses must have been
“committed on occasions different from one another.” Anti-Drug Abuse Act of 1988, Pub. L.
No. 100-690, § 7056, 102 Stat. 4181, 4402 (codified as amended at 18 U.S.C. § 924(e)(1)).
The statute puts no limit on the age of the convictions that can be used as predicates. See
United States v. McElyea, 158 F.3d 1016, 1019–20 (9th Cir. 1998) (discussing legislative
history).
150. Brief of the National Association of Federal Defenders as Amicus Curiae in Support
of Petitioner at 1, Wooden v. United States, 142 S. Ct. 1063 (2022) (No. 20-5279); see also
Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed Career
Criminal Act and Mandatory Minimum Sentencing, 133 HARV. L. REV. 200, 201–02 (2019)
(observing that the ACCA has been “erratically and discriminatorily applied”).
151. Government Sentencing Memorandum at 9, United States v. Wooden, No. 15-CR-12
(E.D. Tenn. Dec. 1, 2016).
152. Brief for the Petitioner at 3–4, Wooden v. United States, 142 S. Ct. 1063 (2022) (No.
20-5279).
153. Government Sentencing Memorandum, supra note 151, at 8 n.9; see also Response to
Defendant’s Sentencing Memorandum at 1, 3, 5, United States v. Wooden, No. 15-CR-12
(E.D. Tenn. Feb. 12, 2019). This provision of the ACCA is known as the “occasions clause.”
154. Memorandum Opinion and Order, supra note 141, at 10.
155. Minute Entry, United States v. Wooden, No. 15-CR-12 (E.D. Tenn. May 30, 2018),
ECF No. 68.
156. Response to Defendant’s Sentencing Memorandum at 1, 3–5, United States v.
Wooden, No. 15-CR-12 (E.D. Tenn. Feb. 12, 2019); Joint Appendix at 54–55, United States

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designation as a career criminal, arguing that the ten mini-storage burglaries
arose out of a single occasion on the same date, at the same time, and in the
same place.157 The district court rejected his argument, concluding, under
circuit precedent, that “[it was possible to discern the] point at which the first
offense was completed and the second began” and “it was possible for [him]
to stop at any point between the mini warehouses.”158 Finding that he had
built a criminal “career” over the course of one night, the district court
sentenced Wooden to 188 months in prison for unlawful possession of a
gun.159 The U.S. Court of Appeals for the Sixth Circuit affirmed.160
Two months into the COVID-19 pandemic, Wooden—indigent and in
federal prison—requested the assistance of counsel to take his case to the
Supreme Court.161 Hearing no response from the district court, and with the
deadline imminent, Wooden, pro se, prepared a petition for a writ of
certiorari.162 In the questions presented, he raised the “absence of clear
statutory definition” in the ACCA occasions clause.163 He argued, as his
counsel did below, that the ten burglaries in his case should be treated as “one
criminal episode.”164 He added his own arguments, emphasizing that the
Sixth Circuit recognized that the occasions clause lacked “statutory
direction” because Congress did not define “committed on occasions
different from one another.”165 With a ninth-grade education,166 he asked
the Court to “once again review a portion of [ACCA] § 924(e) as

v. Wooden, No. 15-CR-12 (E.D. Tenn. July 24, 2020), 2021 WL 9057645, at *54–55
(transcript of sentencing proceedings on February 21, 2019). The government also argued
that a 1989 assault and a 2005 burglary were ACCA-qualifying offenses, but the district court
relied only on the 1997 and the 2005 burglaries in imposing the ACCA enhancement. United
States v. Wooden, 945 F.3d 498, 500–01, 504 (6th Cir. 2019), reh’g en banc denied, 2020
U.S. App. LEXIS 5895 (6th Cir. Feb. 26, 2020).
157. Defendant’s Sentencing Memorandum at 6, United States v. Wooden, No. 15-CR-12
(E.D. Tenn. Jan. 31, 2019).
158. Wooden, 945 F.3d at 501; Joint Appendix, supra note 156, at *46–62 (transcript of
sentencing proceedings on February 21, 2019); Brief for the Petitioner, supra note 152, at 7
(stating that the district court found eleven ACCA predicates: the ten mini-storage burglaries
in 1997, plus a burglary conviction from 2005). Given the court’s finding that Wooden had
one other ACCA predicate, the mini-storage count was dispositive.
159. Minute Entry, United States v. Wooden, No. 15-CR-12 (E.D. Tenn. Feb. 21, 2019),
ECF No. 87.
160. Wooden, 945 F.3d at 500; see also id. at 505 (“Whatever the contours of a ‘mini’
warehouse, Wooden could not be in two (let alone ten) of them at once.”).
161. Letter, United States v. Wooden, No. 15-CR-12 (E.D. Tenn. June 1, 2020), ECF No.
97 (handwritten letter from Wooden to federal district court stating that he unsuccessfully
reached out to his appellate counsel and the federal defenders’ office for assistance).
162. Petition for Writ of Certiorari, Wooden v. United States, 141 S. Ct. 1370 (2021) (No.
20-5279). The district court eventually denied his request for appointment of counsel. Order,
United States v. Wooden, No. 15-CR-12 (E.D. Tenn. July 30, 2020), ECF No. 99.
163. Petition for Writ of Certiorari, supra note 162.
164. Id. at 8.
165. Id. at 4, 9–10; see Wooden, 945 F.3d at 504.
166. Memorandum of Law in Support of Motion to Withdraw Guilty Plea, supra note 142,
at 7.

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void-for-vagueness.”167 The Supreme Court ordered the government to
respond.168
A law firm with a Supreme Court practice group researched the issue to
understand why the Court ordered a response to a pro se petition for
certiorari.169 Wooden’s petition implicated an extensive circuit split over the
interpretation of the occasions clause that had resulted in anomalous ACCA
consequences for nearly identical conduct across the nation.170 The firm
reached out to the federal prison to set up a telephone call with Wooden.171
Now represented by counsel, Wooden argued in reply that the Court should
grant certiorari to resolve a decades-long recurring circuit conflict on how to
determine when offenses are “committed on occasions different from one
another” for purposes of the ACCA enhancement.172 The Court granted
certiorari.173 It was the first time that the ACCA occasions clause was
squarely before the Supreme Court.

167. Petition for Writ of Certiorari, supra note 162, at 4 (emphasis added); Telephone
Interview with Andrew Tutt, Senior Assoc., Arnold & Porter (Oct. 20, 2021) (noting that the
vagueness challenge was not a cert-worthy issue, but that Wooden included the argument in
his pro se petition because he had read Johnson v. United States, 135 S. Ct. 2551 (2015), which
struck down ACCA’s residual clause as void for vagueness). Most people in prison have no
formal legal education but they do learn about the law. ABU-JAMAL, supra note 50, at 31 (“[It
is learned] not in the ivory towers of multibillion-dollar-endowed universities [but] in the
bowels of the slave ship, in the hidden, dank dungeons of America—the Prisonhouse of
Nations. It is law learned in a stew of bitterness, under the constant threat of violence, in
places where millions of people live, but millions of others wish to ignore or forget.”).
168. See Docket for No. 20-5279, SUP. CT. OF THE U.S., https://www.supremecourt.gov/
docket/docketfiles/html/public/20-5279.html [https://perma.cc/25F3-AFRS] (last visited
Sept. 2, 2022) (response requested on September 22, 2020).
169. Jordan S. Rubin, Inmate Petitioned SCOTUS Alone, Then Arnold & Porter Stepped
In, BLOOMBERG L. (Feb. 24, 2021, 1:45 AM), https://news.bloomberglaw.com/us-lawweek/inmate-petitioned-scotus-alone-then-arnold-porter-stepped-in [https://perma.cc/Q8HVPEJ2]; Telephone Interview with Andrew Tutt, supra note 167.
170. See Rachel Kunjummen Paulose, Power to the People: Why the Armed Career
Criminal Act Is Unconstitutional, 9 VA. J. CRIM. L. 1, 82 (2021) (“The circuits are split on the
interpretation of the different occasions test. The interpretation of seven words in the ACCA
has led to widely disparate results for factually similar crimes.”); H.W. PERRY JR., DECIDING
TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 246 (1991) (“[T]he
single most important generalizable factor in assessing certworthiness is the existence of a
conflict or ‘split’ in the circuits.”).
171. Rubin, supra note 169 (“[G]etting in touch with Wooden ‘took a fair amount of
work.’” (quoting a partner at Arnold & Porter)).
172. Reply Brief for the Petitioner at 1, Wooden v. United States, 142 S. Ct. 1063 (2022)
(No. 20-5279), 2021 WL 2322520 [hereinafter Reply Brief dated January 6, 2021]; see also
Paulose, supra note 170, at 69 (“The most pitched battles [in the lower federal courts] involve
not the crimes separated by years, but crimes separated by seconds, minutes, or hours.”); Reply
Brief for the Petitioner at 21, Wooden v. United States, 142 S. Ct. 1063 (2022) (No. 20-5279),
2021 WL 3374603 (“And since a split-second’s difference between offenses will trigger a
fifteen-year mandatory minimum, the Government’s approach magnifies the consequences of
error.”).
173. Wooden v. United States, 141 S. Ct. 1370 (2021) (mem.) (granting certiorari).
Wooden also raised a Fourth Amendment challenge, arguing that law enforcement used
deception to gain access to a constitutionally protected area—his home—which led directly
to his firearm possession conviction. See Petition for Writ of Certiorari, supra note 162, at 2,
5–7; Reply Brief dated January 6, 2021, supra note 172, at 3. The Court granted certiorari

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In March 2022, the Supreme Court ruled unanimously in Wooden’s
favor.174 Eight justices concluded that “[c]onvictions arising from a single
criminal episode, in the way Wooden’s did, can count only once under
ACCA.”175 The people affected by this decision “likely number[] in the
thousands.”176 People sentenced under the ACCA comprise a small portion
of the federal criminal caseload, but their sentences are substantial.177 The
mere existence of the harsh sentencing law also has considerable indirect
effects.178 Although retroactivity of the ruling is unclear, Wooden’s
challenge has future implications for untold numbers of people who
otherwise would have been subject to the ACCA’s severe mandatory
minimum, as well as consequences for other recidivist statutes.179
Significantly, Wooden’s pro se petition teed up a Sixth Amendment
challenge to the occasions clause that every circuit court in the nation has
rejected for two decades.180 In fact, the Court’s decision in Wooden all but
only on the occasions clause question. See Wooden, 141 S. Ct. 1370 (granting certiorari on
question two).
174. Wooden v. United States, 142 S. Ct. 1063 (2022).
175. Id. at 1067. The Court described a “range of circumstances [that] may be relevant” to
the occasions clause inquiry, including whether the offenses were committed in “an
uninterrupted course of conduct” or “separated by substantial gaps in time or significant
intervening events,” proximity of location, the character and relationship of the offenses, and,
in harder cases, ACCA’s history and purpose. Id. at 1070–71 (stating that “[f]or the most part,
applying this [multifactored] approach will be straightforward and intuitive”). But see id. at
1080 (Gorsuch, J., concurring in judgment) (stating that “a long list of non-exhaustive, only
sometimes relevant, and often incommensurable factors promises to perpetuate confusion in
the lower courts and conflicting results for those whose liberties hang in the balance”). Justice
Gorsuch concluded that the rule of lenity required ruling for Wooden. Id. at 1081 (“Because
reasonable minds could differ . . . [as to] whether Mr. Wooden’s crimes took place on one
occasion or many, the rule of lenity demands a judgment in his favor.”).
176. Reply Brief dated January 6, 2021, supra note 172, at 9; id. at 4–6 (demonstrating that
eight circuits apply the ACCA enhancement when crimes are “sequential[] rather than
simultaneous[]” and arguing that this reading “sweep[s] within ACCA vastly more conduct
than a rule reaching only those crimes committed under different circumstances or
opportunities”); see also Paulose, supra note 170, at 8.
177. See U.S. SENT’G COMM’N, FEDERAL ARMED CAREER CRIMINALS: PREVALENCE,
PATTERNS, AND PATHWAYS 7 (2021) (“Offenders who were subject to the ACCA’s 15-year
mandatory minimum penalty at sentencing received an average sentence of 206 months in
fiscal year 2019. Offenders who were relieved of the mandatory minimum for providing
substantial assistance to the government received significantly shorter sentences, an average
of 116 months in fiscal year 2019.”); see also Paulose, supra note 170, at 86 (arguing that
prosecutors and judges “are misusing the ACCA to issue what are essentially life sentences to
a whole swath of people”).
178. Beckett, supra note 17, at 13, 18 (noting that the existence of harsh sentencing statutes
“enhances prosecutorial power in plea negotiations, which yields longer average sentences”);
Paulose, supra note 170, at 12 (explaining that ACCA has “become a tool used at the whim
of prosecutors”).
179. Brief of the National Association of Federal Defenders as Amicus Curiae in Support
of Petitioner, supra note 150, at 1 (“Each year, federal defenders represent tens of thousands
of indigent criminal defendants in federal court, including thousands sentenced under the
enhancement provision in 18 U.S.C. § 924(e).”); Paulose, supra note 170, at 8; see also id. at
9–12 (describing the “ruthless impact of the ACCA different occasions clause as it is now
interpreted by judges”).
180. The Supreme Court has explained “over and over” to the point of “downright tedium”
that “only a jury, and not a judge, may find facts that increase a maximum penalty, except for

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invited the Sixth Amendment question to be presented in a follow-on case.181
The constitutional challenge—grounded in over twenty years of Supreme
Court jurisprudence and an “unusual confession of error by a sitting Supreme
Court justice”—creates an opening for the entire ACCA provision to be
struck down as unconstitutional.182 Wooden’s pro se petition has opened the
way to putting a major dent in a 1980s-era, tough-on-crime law.
For a Supreme Court that seeks the perfect “test case” to change the law—
a venture that is challenging to set up in civil cases183 and next to impossible
in criminal cases184—the agency of people in prison can be critical. Not
unlike most lawyers, most people in prison do not anticipate what issues will
the simple fact of a prior conviction.” Mathis v. United States, 136 S. Ct. 2243, 2257 (2016)
(“That means a judge cannot go beyond identifying the crime of conviction to explore the
manner in which the defendant committed that offense.”). Yet the lower courts routinely make
such findings to apply ACCA’s occasions clause test. Brief for Amicus Curiae the National
Association of Criminal Defense Lawyers in Support of Petitioner at 5, 7, 24–25, Wooden v.
United States, 142 S. Ct. 1063 (2022) (No. 20-5279) (arguing that the occasions clause inquiry
involves judicial factfinding about the circumstances of each conviction and requesting the
court to take up the Sixth Amendment question to “put a stop to the constant stream of
[constitutional] violations” in the lower federal courts); Paulose, supra note 170, at 77–81
(collecting circuit court cases).
181. Wooden v. United States, 142 S. Ct. 1063, 1068 n.3 (2022) (stating that two amici
briefed “whether the Sixth Amendment requires that a jury, rather than a judge, resolve
whether prior crimes occurred on a single occasion” but declining to address the constitutional
question because Wooden did not raise it); see also id. at 1087 n.7 (Gorsuch, J., concurring in
judgment) (noting that “[a] constitutional question simmers beneath the surface of today’s
case . . . [and] there is little doubt [the Court] will have to [address it] soon”).
182. Paulose, supra note 170, at 21–57 (recounting in detail Supreme Court cases). In a
5–4 decision, the Supreme Court in Almendarez-Torres v. United States held that the existence
of a prior conviction that triggers enhanced penalties is a sentencing factor that could be found
by a judge, not an element of the offense that must be found by a jury beyond a reasonable
doubt. 523 U.S. 224, 226–27, 247 (1998). Two years later, the Court held that “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum” is an element of
the crime that “must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000). The Apprendi Court recognized a narrow exception
for the “fact of a prior conviction.” Id. at 487–90 (stating that Almendarez-Torres is “at best”
an exceptional departure from the Court’s jurisprudence). The four justices who dissented in
Almendarez-Torres formed the majority in Apprendi, joined by Justice Thomas, who cast the
fifth and deciding vote for the majority in Almendarez-Torres. Id. at 520 (Thomas, J.,
concurring) (admitting that he “succumbed” to “error” in Almendarez-Torres). For two
decades, Justice Thomas has continued to express regret for his vote in Almendarez-Torres
and to urge its reversal. See, e.g., Shepard v. United States, 544 U.S. 13, 27–28 (2005)
(Thomas, J., concurring in part) (“[A] majority of the Court now recognizes that
Almendarez-Torres was wrongly decided. The parties do not request it here, but in an
appropriate case, this Court should consider Almendarez-Torres’ continuing viability.
Innumerable criminal defendants have been unconstitutionally sentenced under [its] flawed
rule . . . .” (citations omitted)); Mathis, 136 S. Ct. at 2259 (Thomas, J., concurring)
(“I continue to believe that depending on judge-found facts in [ACCA] cases violates the Sixth
Amendment and is irreconcilable with Apprendi . . . . This Sixth Amendment problem
persists regardless of whether ‘a court is determining whether a prior conviction was entered,
or attempting to discern what facts were necessary to a prior conviction.’” (quoting Descamps
v. United States, 570 U.S. 254, 280 (2013)).
183. See Supreme Court Lawsuits in Search of a Plaintiff, BLOOMBERG L. (Apr. 16, 2018,
3:58 PM), https://news.bloomberglaw.com/business-and-practice/supreme-court-lawsuits-insearch-of-a-plaintiff [https://perma.cc/2UWW-N34J].
184. I thank Andrew Tutt for making this point about test cases.

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interest the Supreme Court, but their circumstances embolden them to take
steps to respond to injustices that their experience and the law have made
salient.185 By presenting legal claims that their lawyers forego, they become
part of the process of shaping new constitutional meanings, pushing us
toward new possibilities to incrementally and—as the next section shows—
dramatically reduce our carceral footprint.
B. Idea Generation
Accompanying the work of challenging unjust state and federal laws from
inside the walls is deep contemplation by people in prison aimed at
conceptualizing alternative frameworks for understanding why the criminal
legal system has locked them up. Inside-born innovations have engaged
incarceration differently, pushing the outside to new ways of thinking about
the structures of inequity, trauma, racism, and disinvestment that drive
people into prison and fuel violence outside the walls. This section examines
two groundbreaking ideas seeded inside prison walls that have inspired,
shepherded, and deepened the decarceral work outside the walls.
1. Neighborhood-to-Prison Migration
In September 1971, more than 1,000 people held in New York’s Attica
Correctional Facility took over the state prison in a historic uprising against
the brutal conditions in American prisons and jails.186 People incarcerated
in Attica took some staff hostage in a demand to end dehumanizing
conditions and racial abuse.187 After failed negotiations, Governor Nelson
Rockefeller, New York State Police, law enforcement from outside counties,
and corrections officers launched a disastrous operation to reclaim the
prison.188 After deploying enormous lethal force to suppress the rebellion,
authorities tortured people in prison and pursued a cover-up that lasted
decades.189

185. Cf. supra note 49 and accompanying text.
186. HEATHER ANN THOMPSON, BLOOD IN THE WATER: THE ATTICA PRISON UPRISING OF
1971 AND ITS LEGACY 1, 565, 570 (2016) (providing “a comprehensive history of the Attica
prison uprising”); Maria Bailey, Remembering the Attica Prison Riots, N.Y. DAILY NEWS
(Sept. 8, 2021, 12:00 AM), https://www.nydailynews.com/news/remembering-attica-prisonriots-gallery-1.2781829 [https://perma.cc/5QN7-CX68].
187. Bailey, supra note 186.
188. THOMPSON, supra note 186, at 153–80; Larry Getlen, The True Story of the Attica
Prison Riot, N.Y. POST (Aug. 20, 2016, 1:33 PM), https://nypost.com/2016/08/20/the-truestory-of-the-attica-prison-riot/ [https://perma.cc/HB6H-T4TN]; Bailey, supra note 186.
189. See THOMPSON, supra note 186, at 227–41, 486–91; Erik Wemple, Journalists
Bungled Coverage of the Attica Uprising; 50 Years Later, the Consequences Remain, WASH.
POST (Sept. 30, 2021, 1:34 PM), https://www.washingtonpost.com/opinions/2021/
09/30/attica-chronicle-media-disaster/ [https://perma.cc/552D-FQ9U] (noting that the state
attempted to cover up murdering its own employees by casting blame on the people in prison,
but autopsy findings confirmed that all of the hostages were killed by police gunfire); Getlen,
supra note 188; Bailey, supra note 186.

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After the Attica rebellion, hundreds of people were transferred to Green
Haven Correctional Facility, a maximum-security prison in New York.190
Transfers continued for years from the state’s most brutal prisons,
culminating in the New York State Department of Correctional Services
(NYS DOCS) issuing a directive to send the “toughest,” most violent, and
“hard-core inmate[s]” to Green Haven.191 Among the transferees were
people whose revolutionary consciousness was viewed as disruptive to
prison operations.192
Social anthropologist and professor Orisanmi Burton recounts the
intellectual formation that followed. In Green Haven, Larry White realized
that people in prison needed new strategies of resistance that “mobilized
ideas.”193 With a sixth-grade education, White, a Black man who grew up in
deep poverty, founded a study group called the “Think Tank.”194 Eddie Ellis,
a Black Panther who witnessed the Attica rebellion, joined the Think Tank
along with others sent to Green Haven.195 At this time, study groups could
meet with relative ease, sometimes with community sponsors, in the
tolerance for reform that followed the rebellion.196 That would soon change.
Between 1971 and 1981, New York’s prison population more than
doubled.197 Eighteen new prisons were constructed, opened, or renovated
between 1971 and 1979.198 The commissioner of NYS DOCS announced
that the department was no longer engaged in rehabilitation but only in

190. Burton, supra note 1, at 121–22.
191. Nathaniel Sheppard Jr., Green Haven Reports Increase in Prisoner Clashes, N.Y.
TIMES (Nov. 2, 1976), https://www.nytimes.com/1976/11/02/archives/green-haven-reportsincrease-in-prisoner-clashes.html [https://perma.cc/V9L8-9SA2]; see also Burton, supra note
1, at 122; DAVIS, supra note 40, at 58.
192. NYS DOCS “took all the so-called ringleaders from the different prisons and for some
reason put us all in the same joint.” Burton, supra note 1, at 122 (quoting Larry White); Pam
Widener, Man of the Year: Eddie Ellis at Large, PRISON LIFE, Oct. 1996, at 44, 49
https://www.prisonlegalnews.org/media/publications/Prison_Life_October_1996.pdf
[https://perma.cc/L2YT-Z6BN].
193. Burton, supra note 1, at 119 (noting that White was sent to Green Haven in the wake
of leading a rebellion at Auburn Correctional Facility in 1970, prior to the Attica rebellion).
194. Id. at 116, 129 (noting that White founded the study group in 1972); see also History,
CTR. FOR NULEADERSHIP ON HUM. JUST. & HEALING, https://www.nuleadership.org/history
[https://perma.cc/Q35W-5EJT] (last visited Sept. 2, 2022) (observing that the Attica rebellion
sparked innovative ideas by people in prison, including the “formation of study and organizing
groups emerging in prisons throughout the nation”).
195. Burton, supra note 1, at 5–6, 59, 106; id. at 216, app. I, at 3 (GREEN HAVEN THINK
TANK DOCUMENT (1972)) (describing members of the Think Tank as “socially concerned”
people “whose activity has been defined by prison policies as ‘radical,’ ‘militant’ and
‘disruptive’”); Widener, supra note 192, at 50 (noting that members were mostly “lifers”).
196. Burton, supra note 1, at 114, 129, 135, 138–39 (noting that the Think Tank organized
community events and discussions in the prison and invited lawmakers into the prison and
lobbied them to change laws); Widener, supra note 192, at 51; Don Goodman & Maggie
Smith, An Interview with Eddie Ellis, 22 HUM. & SOC’Y 98, 102 (1998) (noting increased
community entry into the prison post-Attica).
197. THE PRISON POPULATION EXPLOSION IN NEW YORK STATE, supra note 5, at 1.
198. See CAREY & COUGHLIN, supra note 4, at 103.

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“finding the next cell.”199 Areas in prisons once slated for programming and
special events were repurposed to warehouse more bodies.200 In his
proposed budget for the 1982–1983 fiscal year, New York Governor Hugh
Carey requested over $322 million for NYS DOCS with at least $241 million
slated for prison expansion.201
To counter this impulse for expansion, the Think Tank advanced a concept
and a methodology to show that incarceration was not a viable solution to
crime.202 People held in Attica during the Attica rebellion had theorized the
prison as a “relationship” between the state and Black and Latinx
communities in mostly urban neighborhoods, which were also a “kind of
carceral site.”203 This metaphor was rooted in the Black intellectual
tradition.204 Larry White elaborated this concept—which people in Attica
described as a genocide process—as a “direct relationship,” based on the
abstract notion that the state prison population appeared to be drawn from “a
very small pool” of Black and Latinx neighborhoods.205
199. Burton, supra note 1, at 151 (“As of December 4, 1981, the inmate population of
25,490 represents 112 percent of the system’s capacity.” (citing sworn affidavit by NYS
DOCS commissioner)).
200. Id.; see also Shon Hopwood, How Atrocious Prisons Conditions Make Us All Less
Safe, BRENNAN CTR. (Aug. 9, 2021), https://www.brennancenter.org/our-work/analysisopinion/how-atrocious-prisons-conditions-make-us-all-less-safe
[https://perma.cc/KJ9Y5A4W] (stating that “[a]s prison systems expanded over the last four decades, many states
rejected the role of rehabilitation and reduced the number of available rehabilitation and
educational programs,” but noting research showing that programs reduce recidivism rates and
violence in prisons); Sheppard, supra note 191 (discussing the connection between
overcrowding, limited program space, people being idle, and violence).
201. Burton, supra note 1, at 151–52.
202. Id. at 152; see also id. at 130–31; id. at 218, app. I, at 5 (GREEN HAVEN THINK TANK
DOCUMENT (1972)) (redefining the Think Tank’s purpose as “allow[ing] inmates an
opportunity to enter into the process of solving the broader problems of their life-situation,
which they view as not one of a struggle against prison conditions, but rather the broader social
problems of the communities to which they will return”).
203. Id. at 113–14 (describing how those incarcerated in Attica watched as prisons broke
people to no longer value human life and returned them, dehumanized, back to their
communities to commit crimes against their own people); id. at 113 (“It was common parlance
for captives to describe brick and mortar facilities as ‘maximum security’ prisons and the
communities of the free world as ‘minimum security’ prisons”).
204. See, e.g., W.E. BURGHARDT DU BOIS, THE SOULS OF BLACK FOLK: ESSAYS AND
SKETCHES 8 (3d ed. 1903) (describing that the “shades of the prison-house closed round about
us all”); W.E.B. DU BOIS, BLACK RECONSTRUCTION 701 (Eric Foner & Henry Louis Gates, Jr.
eds., Library of America 2021) (1935) (condemning the failure of Reconstruction in rendering
Black people “caged human being[s]”); DAN BERGER, CAPTIVE NATION: BLACK PRISON
ORGANIZING IN THE CIVIL RIGHTS ERA 52, 227 (2014) (describing how Black intellectuals
mobilized carceral metaphors to describe Black urban life in the twentieth century).
205. Burton, supra note 1, at 113–16, 152 (“Captives knew this from experience, as they
often found themselves imprisoned alongside many of the people they knew in the street.”);
Sophia Giovannitti, A Conversation with Larry White: The Radical Anti-Prison Activist and
Teacher for Life, SSENSE.COM (Dec. 17, 2020), https://www.ssense.com/enus/editorial/culture/a-conversation-with-larry-white-the-radical-anti-prison-activist-andteacher-for-life [https://perma.cc/BA6V-L4YU] (interviewing Larry White, who described
the processes in prison that led him “to understand the connections between prison and the
communities [he] came from”); Widener, supra note 192, at 49–50 (quoting Eddie Ellis, who
stated, “I seemed to know everyone” in “[e]very prison I was in,” either directly from the
neighborhood or within two degrees of separation).

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To substantiate this anecdotal evidence, Eddie Ellis had an idea to
cross-reference New York state census data with NYS DOCS population data
to determine the neighborhoods that supplied the state’s prison population.206
The Think Tank obtained technical support from a Black-led nonprofit urban
research center.207 The study group found that 85 percent of New York’s
prison population was Black or Latinx, and that 75 percent of the state’s
entire prison population came from just seven neighborhoods in New York
City.208 The neighborhoods comprised seventeen assembly districts209 and
were set apart by “social conditions that by every possible measure—health
care, housing, family structure, substance abuse, employment, education—
rank at the very bottom in the state.”210
With data to support its hypothesis, the Think Tank articulated the “direct
relationship” between the prison and the communities as an overinvestment
in prisons and a disinvestment in the seven neighborhoods.211 The study
group sought to use the data to determine where interventions were most
needed and published papers arguing that the fundamental solution to crime,
violence, and drugs inhered in the community.212 The study group proposed
206. Burton, supra note 1, at 153.
207. CTR. FOR NULEADERSHIP, supra note 7, at 3 (describing various state and census data
used to conduct the study). The Metropolitan Applied Research Center (MARC), then headed
by psychologist and civil rights activist Dr. Kenneth Clark, provided research design support.
Id. A project director at MARC was initially hesitant to work with people in prison, but the
Think Tank was persistent, writing letters seeking assistance. Burton, supra note 1, at 138.
MARC eventually became an early ally of the Think Tank. Id.; see also Charlayne Hunter,
Urban Analyst to Replace Clark at Research Center, N.Y. TIMES (May 4, 1975),
https://www.nytimes.com/1975/05/04/archives/urban-analyst-to-replace-clark-at-researchcenter.html [https://perma.cc/5CME-V6X5]. In the 1940s and 1950s, Drs. Kenneth Clark and
Mamie Clark famously designed a series of experiments called the “Doll Test” to study the
psychological effects of racial segregation on Black children. Leila McNeill, How a
Psychologist’s Work on Race Identity Helped Overturn School Segregation in 1950s America,
SMITHSONIAN MAG. (Oct. 26, 2017), https://www.smithsonianmag.com/sciencenature/psychologist-work-racial-identity-helped-overturn-school-segregation-180966934/
[https://perma.cc/7GGL-9XZW] (reporting that the doctors’ research and expert testimony
played a role in the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483,
494 (1954)).
208. CTR. FOR NULEADERSHIP, supra note 7, at 3–4 (identifying the seven neighborhoods
and the regions that supplied the remaining 25 percent of the state prison population).
209. Id. at 3 (explaining that the state assembly districts were identified for geographic
reference and political support); Goodman & Smith, supra note 196, at 99.
210. Widener, supra note 192, at 50 (quoting Eddie Ellis); see also CTR. FOR
NULEADERSHIP, supra note 7, at 4; Darren Mack, Opinion: In Plan to Close Rikers,
Community Reinvestment Is Key to Repairing Harms of Incarceration, CITY LIMITS
(Apr. 1, 2021), https://citylimits.org/2021/04/01/opinion-in-plan-to-close-rikers-communityreinvestment-is-key-to-repairing-harms-of-incarceration/
[https://perma.cc/UVJ4-Y6T7]
(“These communities have been historically deprived of resources and then criminalized in
their struggle to survive.”).
211. Burton, supra note 1, at 153; see also Goodman & Smith, supra note 196, at 99–100;
Widener, supra note 192, at 51 (stating that the Think Tank continued over the next decade to
analyze the prison-community relationship); Eddie Ellis, Non-Traditional Approach to
Criminal and Social Justice, in BLACK PRISON MOVEMENTS USA 92, 94–100 (NOBO J. of
Afr. Am. Dialogue ed., 1995) (discussing historical research conducted by the Think Tank).
212. CTR. FOR NULEADERSHIP, supra note 7, at 5 (“[A]lmost exactly the same
neighborhoods that had so many of its people in prison had the worst schools in the city. It

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reappropriating funds from the state’s prison budget for education and
economic development in the seven neighborhoods.213 At the time—indeed
for decades—this radical proposal, rooted in a long-term abolitionist
agenda,214 met with little support.
The research study, which the Think Tank titled “The Non-Traditional
Approach to Criminal and Social Justice,” became known as the “Seven
Neighborhoods Study” or the “Green Haven Study.”215 Originally
conducted in 1979–1980 and reissued in 1990, the study won little popular
attention until 1992, when The New York Times “catapulted” the findings.216

seemed clear to us, then and now, if we know where the failing schools are and they are the
same neighborhoods that account for the high numbers in the prison system, then we can target
interventions specifically to them in very cost-effective ways. In our study, we called this a
‘community specific’ approach.”); Widener, supra note 192, at 51; David Greaves, Eddie
Ellis: Prison Reform Visionary, OUR TIME PRESS, https://ourtimepress.com/eddie-ellisprison-reform-visionary/ [https://perma.cc/92K8-KXJN] (last visited Sept. 2, 2022)
(interviewing Ellis, who stated that people in the disinvested neighborhoods have very few
viable options).
213. Burton, supra note 1, at 153; see also Goodman & Smith, supra note 196, at 103–04;
Greaves, supra note 212 (interviewing Ellis, who suggested that the criminal legal system
should aim to address social and economic problems, which will lead to less people going to
prison and less need for prisons); cf. Burton, supra note 1, at 28 (“Black radical knowledge
production makes no claims to objectivity or to ‘detachment’ . . . [but] ‘grow[s] out of a
concrete intellectual engagement with the problems of aggrieved populations confronting
systems of oppression.’” (citing ROBIN D.G. KELLEY, FREEDOM DREAMS: THE BLACK
RADICAL IMAGINATION (2003))); Erin Collins, Abolishing the Evidence-Based Paradigm,
BYU L. REV. (forthcoming 2022) (manuscript at 60) (on file with author) (“Data cannot, as
QuantCrit scholars remind us, speak for [i]tsel[f] . . . . It can help describe the impact of a
law, policy, or procedure, but it does not prescribe the path forward. We choose both the
meaning we draw from data, and what we do with that message.”).
214. See Burton, supra note 1, at 217, app. I, at 4 (GREEN HAVEN THINK TANK DOCUMENT
(1972)) (describing the Think Tank’s “[l]ong range priorities” as “[r]eduction of prison
populations and the phasing-out of existing prison models”).
215. CTR. FOR NULEADERSHIP, supra note 7, at 2. This vocabulary housed criminal justice
under a larger commitment to social justice. The “non-traditional” model rejected
“traditional” theories and approaches to crime and punishment. Burton, supra note 1, at 152;
Widener, supra note 192, at 53 (stating that the new approach was based on the notion that
the failure of social institutions serving Black and Latinx communities was directly
responsible for crime and punishment); Juan Rivera, A Non-Traditional Approach to a
Curriculum for Prisoners in New York State, 4 J. PRISONERS ON PRISONS, no. 1, 1992, at 29
(contrasting the “traditional” or “Eurocentric, white, and middle-class” approach that rests
fault with the individual, with a “non-traditional” approach that takes into account institutional
failures in communities as understood from Afrocentric and Latinocentric perspectives); Ellis,
supra note 211, at 94 (discussing the philosophies and goals of the nontraditional approach).
See generally RESURRECTION STUDY GRP., THE NON-TRADITIONAL APPROACH TO
CRIMINAL AND
SOCIAL JUSTICE (1997),
https://static1.squarespace.com/static/
58eb0522e6f2e1dfce591dee/t/5edf83f8c692cc7379542d72/1591706634465/NonTraditional
ApproachUpdatedRpt_Scanned.pdf [https://perma.cc/9GYS-TDBC] (providing a detailed
historical account of the “direct relationship” from an Afrocentric and a Latinocentric
perspective).
216. CTR. FOR NULEADERSHIP, supra note 7, at 2; Francis X. Clines, Ex-Inmates Urge
Return to Areas of Crime to Help, N.Y. TIMES (Dec. 23, 1992),
https://www.nytimes.com/1992/12/23/nyregion/ex-inmates-urge-return-to-areas-of-crime-tohelp.html [https://perma.cc/7TDD-8C75] (describing the study as a “radical new approach to
penology” by “unaccredited street penologist[s] without portfolio”); Greaves, supra note 212

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In a front-page article in the Times, the Think Tank, via Ellis, who was now
out on work release, brought to the attention of mainstream circles the
“symbiotic” relationship—the “umbilical cord”—between prison and the
seven neighborhoods.217
In 1994, Ellis was released after serving twenty-three years in prison.218
He then helped to establish an outside arm to facilitate the Think Tank’s219
research and writing,220 thereby extending his work on the inside. In 2001,
Ellis was a senior consultant at the Open Society Institute (OSI).221 Ellis
shared the Think Tank’s demographic data with Eric Cadora, then a program
officer in OSI’s After Prison Initiative.222 With the Think Tank’s data and
access to greater resources—including residential data and geographic
mapping software—Cadora identified at the census block level the
neighborhoods that the Think Tank had identified at the district level.223 The
maps showed that the vast majority of people in New York state prisons came
from an “astonishingly small” number of poor, segregated, predominantly
Black and Latinx neighborhoods, and were primarily concentrated on
particular blocks in those neighborhoods.224 Cadora later collaborated with
(interviewing Eddie Ellis, who explained that the study was not well received when it was
released in the 1980s).
217. Clines, supra note 216 (quoting Eddie Ellis).
218. A leader in the Black Panther Party, Ellis was arrested for a fatal shooting in 1969 and
sentenced to 25 years to life. Widener, supra note 192, at 48 (stating that Ellis was targeted
by the Federal Bureau of Investigation’s Counterintelligence Program (“COINTELPRO”)).
Ellis continued to maintain his innocence until his passing in 2014. Id. at 48–49 (stating that
no physical evidence connected Ellis to the crime and that he had no connection to the victim).
219. Think Tank founder Larry White would remain in prison for another thirteen years—
thirty-two years in total. Giovannitti, supra note 205. White, in his own words, was
“state-raised.” Id.; Burton, supra note 1, at 118 (quoting White, who “gr[e]w[] up in prison”).
In 1947, twelve-year-old White was placed in a youth house for “wayward kids.” Giovannitti,
supra note 205; Burton, supra note 1, at 118. Since adolescence, he was in and out of juvenile
facilities, adolescent facilities, and adult prisons. Id.; Giovannitti, supra note 205. White
returned to prison for the last time in 1976 to serve twenty-five years to life for armed robbery
and second-degree murder. Burton, supra note 1, at 118; Giovannitti, supra note 205. In 2007,
White was paroled at the age of seventy-two. Id.
220. Widener, supra note 192, at 54–55 (describing the Harlem Community Justice
Center). Ellis went to college in prison, where he obtained associate’s and bachelor’s degrees,
followed by a master’s degree from New York Theological Seminary. Id. at 51; Clines, supra
note 216.
221. CTR. FOR NULEADERSHIP, supra note 7, at 5.
222. Id.; Eric Cadora, THE GOVERNANCE & JUST. GRP., http://www.governancejustice.org/
eric-cadora [https://perma.cc/2A6Q-QBWZ] (last visited Sept. 2, 2022).
223. CTR. FOR NULEADERSHIP, supra note 7, at 5–6; Robert F. Moore, On the Inside, Cons
Wondered About Numbers, N.Y. DAILY NEWS (Mar. 18, 2007, 4:00 AM),
https://www.nydailynews.com/news/cons-wondered-numbers-article-1.216876
[https://perma.cc/EN7K-G77S] (stating that Cadora plotted the Green Haven group’s findings
with the aid of computer software); see also LAURA KURGAN, CLOSE UP AT A DISTANCE:
MAPPING, TECHNOLOGY, AND POLITICS 187–88 (2013) (stating that after The New York Times
article was published, Cadora gathered state incarceration data to test the Think Tank’s
research on a larger scale); Brett Story, The Prison in the City: Tracking the Neoliberal Life
of the ‘Million Dollar Block,’ 20 THEO. CRIMINOLOGY 257, 259 (2016).
224. Trevor Paglen, Ways of Seeing: A New Book Examines How Mapping Technologies
Shape Our View of the World, BOOK FORUM (2013), https://www.bookforum.com/print/2001/
a-new-book-examines-how-mapping-technologies-shape-our-view-of-the-world-11237

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architect Laura Kurgan to map on a larger scale the home address of everyone
held in the New York state prison system.225 Cadora and Kurgan attached a
dollar figure to the maps to denote when the state spent at least one million
dollars a year to incarcerate residents of a single city block and coined the
now-famed expression “million-dollar blocks.”226 A 2003 map, for example,
depicts that New York spent $17 million to incarcerate 109 people who lived
on seventeen blocks in Brownsville, a neighborhood in Brooklyn.227
Brownsville has among the highest rates of poverty, unemployment, failing
schools, and infant mortality, as well as the lowest life expectancy in New
York City.228
The Think Tank’s concept and method, made into visuals on Cadora and
Kurgan’s maps, “upended the prevailing narrative about crime and
[punishment],”229 shaping new perspectives about the purpose of criminal
law and new ways of thinking and advocating for change. Maps were soon
[https://perma.cc/9FFH-W4KG] (observing that the maps were inspired by the Think Tank’s
work and analysis); JONATHAN GRAY & DANNY LÄMMERHIRT, DATA AND THE CITY: HOW CAN
PUBLIC DATA INFRASTRUCTURES CHANGE LIVES IN URBAN REGIONS 32 (2017) (stating that the
Think Tank’s findings “caught the attention of scholars and advocates of criminal justice
reform who replicated [their] observation”); KURGAN, supra note 223, at 187 (same).
225. GRAY & LÄMMERHIRT, supra note 224, at 33–34. The mapping project was a
collaboration of the Justice Mapping Center and Columbia University’s Spatial Information
Design Lab, now the Center for Spatial Research. Lauren MacIntyre, Rap Map, NEW YORKER
(Jan. 1, 2007), https://www.newyorker.com/magazine/2007/01/08/criminal-justice-dept-rapmap [https://perma.cc/GDP7-3EYW].
226. MacIntyre, supra note 225 (stating that Cadora multiplied the minimum sentence of
each person incarcerated by the estimated annual costs to imprison an individual ($32,400)
and combined those numbers to calculate the incarceration costs per block); Emily Badger,
How Mass Incarceration Creates ‘Million Dollar Blocks’ in Poor Neighborhoods, WASH.
POST (July 30, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/07/30/howmass-incarceration-creates-million-dollar-blocks-in-poor-neighborhoods/ [https://perma.cc/
4FHH-9UNJ] (stating that this figure did not include money spent incarcerating people in
federal prison or local jails). But see John Pfaff, Criminal Punishment and the Politics of
Place, 45 FORDHAM URB. L.J. 571, 572 n.10 (2018) (expressing skepticism on the
million-dollar value on the basis that some prison costs are fixed and the marginal cost of
locking up one more person is much less than the average).
227. KURGAN, supra note 223, at 186; Email from Laura Kurgan, Dir., Ctr. for Spatial
Rsch., to author (Jan. 15, 2022).
228. Ginia Bellafante, New York City Can’t Just Gentrify Its Way Back to Normal, N.Y.
TIMES,
https://www.nytimes.com/2021/06/04/nyregion/nyc-pandemic-economy-povertybrownsville-brooklyn.html [https://perma.cc/K4FE-SKMS] (June 14, 2021) (“[N]o [mayoral]
candidate really has a comprehensive plan to eradicate deep poverty in neighborhoods where
rates have remained virtually unchanged since the 1970s.”); Kathleen Culliton, This Is the
Deadliest Neighborhood in New York City, PATCH (July 11, 2019, 7:00 AM),
https://patch.com/new-york/brownsville/deadliest-neighborhood-new-york-city
[https://perma.cc/9CB3-9PT9];
Brownsville
BK
16,
NYU
FURMAN
CTR.,
https://furmancenter.org/neighborhoods/view/brownsville
[https://perma.cc/D5GJ-3A3T]
(last visited Sept. 2, 2022); FAMILIES FOR EXCELLENT SCHOOLS, THE FORGOTTEN FOURTH
3–4
(2014),
http://www.familiesforexcellentschools.org/wp-content/uploads/2014/10/
TheForgottenFourth_V4.pdf [https://perma.cc/2UG6-FM5Y]; NYC DEP’T OF MENTAL
HEALTH AND HYGIENE, COMMUNITY HEALTH PROFILES 2015—BROOKLYN COMMUNITY
DISTRICT 16: BROWNSVILLE, at 7 (2015), https://www1.nyc.gov/assets/doh/downloads/pdf/
data/2015chp-bk16.pdf [https://perma.cc/AMZ3-H9LQ].
229. Noah Chasin, Laura Kurgan, BOMB (Dec. 15, 2016), https://bombmagazine.org/
articles/laura-kurgan/ [https://perma.cc/C9BU-ZH8S].

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requested in other states, and neighborhood-to-prison mapping became a
national initiative.230 The data visuals showed the same stark pattern in cities
across the nation, revealing “previously unseen dimensions” of the criminal
legal system.231 The spatial analysis created “a radically new understanding
of crime, poverty, and imprisonment.”232 Given the extent to which people
cycle in and out of—and back into—prison, the spatial concentration of
incarceration revealed a “mass migration of sorts.”233
The Think Tank’s theory and research shifted attention from the limited
(and limiting) question of where crimes are committed to where people lived
before entering prison, fundamentally redefining—and creating new metrics
to measure—public safety. Traditional crime mapping tools, such as the New
York Police Department’s CompStat (“computer statistics”) software, are
commonly used by law enforcement to detect crime “hot spots” in order to

230. MacIntyre, supra note 225; Diane Orson, ‘Million-Dollar Blocks’ Map
Incarceration’s Costs, NPR (Oct. 2, 2012), https://www.wbur.org/npr/162149431/milliondollar-blocks-map-incarcerations-costs
[https://perma.cc/QXX6-QVVA];
Jennifer
Gonnerman,
Million-Dollar
Blocks,
VILLAGE
VOICE
(Nov.
9,
2004),
https://www.villagevoice.com/2004/11/09/million-dollar-blocks/ [https://perma.cc/HY7WRH79].
231. Susan B. Tucker & Eric Cadora, Justice Reinvestment, IDEAS FOR OPEN SOC’Y, Nov.
2003, at 2, 2 (stating that Connecticut spends $20 million a year to imprison almost 400 people
in the Hill, a neighborhood in New Haven); id. at 3 (stating that 3 percent of Cleveland
neighborhoods are home to 20 percent of people in Ohio prisons); CHICAGO’S MILLION
DOLLAR BLOCKS, https://chicagosmilliondollarblocks.com/ [https://perma.cc/2TFJ-HAVD]
(last visited Sept. 2, 2022); SPATIAL INFO. DESIGN LAB, THE PATTERN: MILLION DOLLAR
BLOCKS 10–33 (2008), http://www.spatialinformationdesignlab.org/MEDIA/ThePattern.pdf
[https://perma.cc/3CML-6B7N] (depicting million-dollar blocks in Phoenix, Arizona,
Wichita, Kansas, and New Orleans, Louisiana); Million Dollar Blocks, COLUMBIA
CTR. FOR SPATIAL RSCH., https://c4sr.columbia.edu/projects/million-dollar-blocks
[https://perma.cc/5E63-7P92] (last visited Sept. 2, 2022) (stating that the criminal legal system
became the “predominant government institution in these communities”).
232. Paglen, supra note 224 (“The project is a powerful critique of mass incarceration.”);
see also SPATIAL INFO. DESIGN LAB, supra note 231, at 4 (“The geography of incarceration
differs considerably from that of crime.”); AUSTIN ET AL., supra note 53, at 5 (arguing that
these already-disadvantaged neighborhoods were punished into deeper distress, isolation, and
disenfranchisement by concentrated incarceration and forced migration of residents to and
from prison).
233. Paglen, supra note 224; SPATIAL INFO. DESIGN LAB, supra note 231, at 5 (stating that
95 percent of people in prison are released and that most return to their home communities);
Million Dollar Blocks, supra note 231 (stating that “roughly forty percent do not stay [out of
prison] more than three years before they are reincarcerated”); Dana Goldstein, The
Misleading Math of ‘Recidivism,’ THE MARSHALL PROJECT (Dec. 4, 2014, 11:15 AM),
https://www.themarshallproject.org/2014/12/04/the-misleading-math-of-recidivism
[https://perma.cc/24CQ-QJKN] (clarifying that a large number of people return to prison not
for new crimes but for technical parole violations (such as missed appointments or positive
drug test results), and that studies of “recidivism” rates are influenced by the measure
selected); Ryan G. Fischer, Are California’s Recidivism Rates Really the Highest in the
Nation?: It Depends on What Measure of Recidivism You Use, BULLETIN, Sept. 2005, at 1,
1–2 (documenting that two-thirds of Californians are reimprisoned within three years, over
half for parole violations, and partially attributing this high rate to California’s practice of
placing virtually all people released from prison on parole supervision).

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allocate law enforcement resources to reduce crime.234 Crime mapping
technology compiles data on the time, location, type, and frequency of
reported incidents.235 Because these technologies measure data that is
critical to policing success, metrics are chosen based on how law
enforcement defines public safety.236 The dominant law enforcement
worldview, whose muse is high-crime areas, now competed with the stark
view from below: high-incarceration neighborhoods. Considering that the
residential data used to create the maps was accessible to states and
localities,237 this shift in focus betrayed something more elemental: data
“echoes its collectors.”238 “What data set to focus on, and how to frame it,
is a decision”239 produced by normative choices and shaped by power,
politics, and enduring structural inequities.240 Most data on imprisonment

234. Award: Compstat: A Crime Reduction Management Tool, HARV. KENNEDY SCH. ASH
CTR. FOR DEMOCRATIC GOVERNANCE & INNOVATION (Jan. 1, 1996), https://www.innovations.
harvard.edu/compstat-crime-reduction-management-tool [https://perma.cc/2TYE-HLU8].
235. Id.; Lena V. Groeger, When the Designer Shows Up in the Design, PROPUBLICA (Apr.
4, 2017, 8:00 AM), https://www.propublica.org/article/when-the-designer-shows-up-in-thedesign [https://perma.cc/9YGU-U774].
236. See, e.g., POLICING PROJECT, STATEMENT OF PRINCIPLES OF DEMOCRATIC
POLICING
(2015), https://static1.squarespace.com/static/58a33e881b631bc60d4f8b31/t/
59dfa277a803bb57bb93252e/1510756941918/Democratic+Policing+Principles+9_26_2017.
pdf [https://perma.cc/K594-ZN39] (“For too long, policing success has been defined almost
exclusively by crime and arrest rates.”); Jocelyn Simonson, Police Reform Through a Power
Lens, 130 YALE L.J. 778, 794–95 (2021) (observing that scholars and researchers measure the
success of various reforms using the same metrics, that is, police statistics on crimes as
reported by police, in order to assess whether the reforms lead to a reduction in “crime rates”);
Barry Friedman, What Is Public Safety?, 102 B.U. L. REV. 725, 728 (2022) (discussing
different conceptions of public safety other than “freedom from sudden, violent, physical
harm”); BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN
WINDOWS POLICING 205–47 (2001) (critiquing traditional ideas of measuring “harm” that do
not consider the harms of policing policies); Amna A. Akbar, An Abolitionist Horizon for
(Police) Reform, 108 CALIF. L. REV. 1781, 1811 (2020) (“CompStat is now widely viewed as
having incentivized the rise of stop and frisk in New York City.”).
237. See Chasin, supra note 229 (interviewing Laura Kurgan, who noted that the maps
were prepared with government data, but the stories they told were transformative).
238. Groeger, supra note 235 (explaining that before data is interpreted or analyzed, an
assumption must first be made about what data to seek out to help answer a question); id.
(“The way in which data is collected often reflects something about the people who collect
it.”); see also Kate Crawford, The Hidden Biases in Big Data, HARV. BUS. REV. (Apr. 1, 2013),
https://hbr.org/2013/04/the-hidden-biases-in-big-data [https://perma.cc/28SF-C6YB] (“Data
are assumed to accurately reflect the social world, but there are significant gaps, with little or
no signal coming from particular communities.”); id. (“[A]s we increasingly rely on big data’s
numbers to speak for themselves, we risk misunderstanding the results and in turn
misallocating important public resources.”).
239. Groeger, supra note 235.
240. See William Alonso & Paul Starr, Introduction to THE POLITICS OF NUMBERS 1, 3
(William Alonso & Paul Starr eds., 1987) (arguing that “political judgments are implicit in the
choice of what to measure, how to measure it, how often to measure it, and how to present and
interpret the results”); Aziza Ahmed, Trafficked?: AIDS, Criminal Law and the Politics of
Measurement, 70 U. MIAMI L. REV. 96, 151 (2015) (“While measurement and indicators are
treated as an objective and neutral way to move away from ideological debates and towards
documenting realities . . . measuring and data-gathering itself is a political process.”); see also
GRAY & LÄMMERHIRT, supra note 224, at 34 (“[W]hen [crime] maps are made [ . . . ], they

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had focused on the state and county level. The neighborhood-prison
spending maps exposed a legal system that was “spending millions to
imprison people but little on the communities to which they return.”241
Despite—yet paradoxically, by reason of—their dire circumstances in
prison, the Think Tank marshalled a theory, with supporting data that
prominent scholars and policy organizations have cited authoritatively,242
whose reach has stretched beyond criminal law and policy to transform
research in public health.243 The idea to collect the data was born in prison,
by people surrounded by people in prison who contemplated their oppression
within a framework rooted in the Black intellectual tradition. The Think
Tank study group initiated a decarceral praxis that opened up new routes to
disrupt overreliance on criminal punishment, engaged complex problems
more intelligently and humanely, and guided those on the outside to more
often stop at the very first element: what crimes were committed and where.” (quoting
Kurgan)).
241. MacIntyre, supra note 225.
242. See Jeffrey Fagan, Valerie West & Jan Holland, Reciprocal Effects of Crime and
Incarceration in New York City Neighborhoods, 30 FORDHAM URB. L.J. 1551, 1552, 1568
(2003) (emphasizing that “there have been few studies of the spatial concentration of
incarceration in neighborhoods in the nation’s largest cities” and citing to The New York Times
article on the Seven Neighborhoods Study); R. Richard Banks, Beyond Profiling: Race,
Policing, and the Drug War, 56 STAN. L. REV. 571, 596 nn.151–53 (2003) (observing that the
spatial concentration of incarceration produces neighborhood effects (citing VERA INST. OF
JUST., THE UNINTENDED CONSEQUENCES OF INCARCERATION (1996) and Loïc Wacquant,
Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3 PUNISHMENT & SOC’Y 95,
114–15 (2001))). Both the Vera Institute and Wacquant cite to the Green Haven Study as their
source. See also Dick Price & Sharon Kyle, Million Dollar Hoods: Why L.A. Cages More
People Than Any Other City, LA PROGRESSIVE (July 9, 2018), https://www.laprogressive.com/
million-dollar-hoods/ [https://perma.cc/8SGD-2NLN] (discussing UCLA historian who was
inspired by the Green Haven Study to launch a complementary project in 2016 that found
similar neighborhood effects in the local jail system in Los Angeles County).
243. After seeing the Seven Neighborhoods data, Columbia University professor of
sociomedical sciences Robert E. Fullilove focused his public health research on the role of
mass incarceration in driving the HIV epidemic. See Robert E. Fullilove, Mass Incarceration
in the United States and HIV/AIDS: Cause and Effect?, 9 OHIO ST. J. CRIM. L. 353, 357 (2011)
(arguing that “the greatest engine driving the [HIV] epidemic was the cycling of inmates in
and out of prison and in and out of their communities”); CTR. FOR NULEADERSHIP
ON
URB. SOLS., A MEMORIAL FOR EDWIN “EDDIE” ELLIS 10 (2014),
https://www.nuleadership.org/assets/downloads/Hyperlink_EddieEllisBio_EEmemorialProg
ramFINAL.pdf [https://perma.cc/R5KC-TTY9] (remarks by Bob Fullilove) (stating, about his
shift in research, that Fullilove “owe[d] it all to [the Think Tank’s] pioneer[ing] contributions,”
because “[w]hen we looked at the data [that Ellis] cited, it became clear that those were the
[seven] neighborhoods with the highest rates of HIV/AIDS in [New York] [C]ity”). Increased
attention to the high concentration of incarceration in neighborhoods thus carries the potential
to guide decisions on public health. See KAMALA MALLIK-KANE & CHRISTY A. VISHER,
HEALTH AND PRISONER REENTRY: HOW PHYSICAL, MENTAL, AND SUBSTANCE ABUSE
CONDITIONS SHAPE THE PROCESS OF REINTEGRATION 8 (2008) (concluding that attending to the
health needs of people in and returning from prison can affect the course of epidemics); Janaki
Chadha & Ruth Ford, What Drives NYC’s Health Disparities?, CITY LIMITS (Jan. 4, 2017),
https://citylimits.org/2017/01/04/what-drives-nycs-health-disparities/
[https://perma.cc/PW88-QTMA] (describing how poor health outcomes reflect history of
neighborhood disinvestment); Nolan Hicks, Vaccine Efforts Still Lagging in Poorer NYC
Neighborhoods, N.Y. POST (Mar. 30, 2021, 7:00 AM), https://nypost.com/2021/03/30/
vaccine-efforts-still-lagging-in-poorer-nyc-neighborhoods/ [https://perma.cc/AN22-FVTS].

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effective and sustainable community solutions.
Based on a deep
understanding of the racial and class inequities that undergird criminal
punishment, the Think Tank urged a neighborhood-focused agenda rooted in
social justice, a concept that scholars and scientists today are championing to
dramatically reduce reliance on incarceration.244
Gathering a different set of data and framing that data differently made the
social and economic dimensions of incarceration more understandable to a
wide range of stakeholders.245 Facing budget shortfalls, lawmakers invited
Cadora to present the maps and began to talk about incarceration differently,
with some undertaking reforms to lower prison populations.246 The maps
created space to develop a neighborhood-driven safety agenda that Cadora
and Susan Tucker—the founding director of OSI’s After Prison Initiative—
coined “justice reinvestment.”247 This 2003 proposal—divestment of
monies from prisons and targeted investment in million-dollar blocks—was
initially considered a “fantasy scenario.”248 But the initiative soon gained
momentum and attracted broad, bipartisan support.249
In response to initial success by states piloting the model, the U.S.
Department of Justice teamed up with the Pew Charitable Trusts in 2010 to
244. See, e.g., Eugenia C. South, Opinion, To Combat Gun Violence, Clean Up the
Neighborhood, N.Y. TIMES (Oct. 8, 2021), https://www.nytimes.com/2021/10/08/opinion/
gun-violence-biden-philadelphia.html [https://perma.cc/V4S9-LHN4] (describing large-scale
empirical studies demonstrating that greening and cleaning vacant land in segregated,
disadvantaged neighborhoods resulted in up to a 29 percent decline in gun violence, and noting
qualitative reports that the place-based geographic interventions improved community
members’ well-being); James Austin, Todd Clear & Garry Coventry, Reinvigorating Justice
Reinvestment, 29 FED. SENT’G REP. 6, 6 (2016) (describing the original concept of justice
reinvestment as “housed within an ideal of social justice”); see also Mack, supra note 210
(stating that the New York City Council approved a plan in 2019 to close Rikers Island and
established a commission to make recommendations on reinvestment in impacted
communities).
245. Orson, supra note 230 (explaining how the maps became a guide to targeting
resources); see also Groeger, supra note 235.
246. Orson, supra note 230 (interviewing Cadora, who metaphorically described the
legislators transforming into “urban planners”); id. (noting that Connecticut legislators who
examined the maps questioned why the state was spending $6 million a year to return people
to prison for parole violations when it could invest in the social and economic well-being of
the neighborhood); see also Gonnerman, supra note 230 (noting that Connecticut changed its
spending priorities and reporting that Louisiana’s governor requested even more maps);
MacIntyre, supra note 225 (interviewing Cadora, who stated that New York legislators shifted
from tough- or soft-on-crime rhetoric to “What are we going to do about
Bed[ford]-Stuy[vesant]?” (a neighborhood in Brooklyn)); AUSTIN ET AL., supra note 53, at
24–26 (discussing how incarceration mapping helped states to develop ideas for shifting
spending).
247. Tucker & Cadora, supra note 231, at 2 (“The goal of justice reinvestment is to redirect
some portion of the $54 billion America now spends on prisons to rebuilding the human
resources and physical infrastructure—the schools, healthcare facilities, parks, and public
spaces—of neighborhoods devastated by high levels of incarceration.”).
248. Gonnerman, supra note 230; see also Tucker & Cadora, supra note 231, at 2, 4 (stating
that the initiative seeks community-level solutions); Ed Chung & Betsy Pearl, How to Reinvest
in Communities When Reducing the Scope of Policing, CTR FOR AM. PROGRESS
(July 29, 2020), https://www.americanprogress.org/article/reinvest-communities-reducingscope-policing/ [https://perma.cc/U7X6-TV6K].
249. Chung & Pearl, supra note 248; Austin, Clear & Coventry, supra note 244, at 7.

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launch the Justice Reinvestment Initiative (JRI).250 States that have
participated in the JRI, however, have not made significant progress in
reducing prison populations.251 Instead of investing in neighborhoods, they
have largely channeled reinvestment into law enforcement and criminal law
agencies, including community corrections, “stripp[ing] [justice
reinvestment] of its core purpose.”252 As scholars and advocates have
argued, one “key but missing element” of justice reinvestment is an
organized, sustained demand for prison reductions and neighborhood
reinvestment rooted in the long-term interests, priorities, and visions of local
communities.253 Scholars have argued that JRI will not achieve long-term
and continuing reductions in prison populations absent early partnerships
with local officials, grassroots leaders, and residents to develop a decarceral
strategy responsive to the needs of those most affected.254
The Think Tank’s animating goals were to reorient the criminal legal
system to address social and economic problems.255 As scholars have shown,
without enabling such transformative change, initiatives like JRI that are
motivated by cost-cutting largely preserve the status quo and threaten to
250. Chung & Pearl, supra note 248; Justice Reinvestment Initiative (JRI), BUREAU OF
JUST. ASSISTANCE, U.S. DEP’T OF JUST. (Mar. 7, 2012), https://bja.ojp.gov/program/justicereinvestment-initiative/overview
[https://perma.cc/U4UY-94RD].
JRI
is
a
multimillion-dollar federal grant program that provides funding to state, local, and tribal
governments to reduce corrections spending and invest savings in evidence-based strategies
to enhance public safety. See id.; see also Chung & Pearl, supra note 248.
251. AUSTIN ET AL., supra note 53, at 16; Chung & Pearl, supra note 248 (stating that
thirty-five states have participated in JRI); Austin, Clear & Coventry, supra note 244, at 6, 11
(“More than half the states have engaged in justice reinvestment activities. When we compare
their collective progress on prison population reduction to the non-JRI states, there is no
meaningful difference.”); id. at 13–14 (expressing concern that justice reinvestment, as
practiced to date, may have helped to institutionalize high rates of imprisonment).
252. AUSTIN ET AL., supra note 53, at 4, 6, 10 (“The lack of targeted reinvestment in high
incarceration communities is probably the most glaring weakness of JRI.”); id. at 8, 20
(arguing that programmatic initiatives, such as substance abuse treatment and in-prison and
reentry services, although laudable, cannot alone produce meaningful reductions in prison
populations); Austin, Clear & Coventry, supra note 244, at 6, 11–13 (describing an extensive
literature on the long-term social and economic benefits of community investments, but noting
that JRI restricts states to investing in “proven” strategies with speedy crime reduction
outcomes); JEREMY WELSH-LOVEMAN & SAMANTHA HARVELL, JUSTICE REINVESTMENT
INITIATIVE DATA SNAPSHOT:
UNPACKING REINVESTMENT 1–2, 7 (2018),
https://www.urban.org/sites/default/files/publication/98361/justice_reinvestment_initiative_
data_snapshot_0.pdf [https://perma.cc/CM2F-J9FV].
253. AUSTIN ET AL., supra note 53, at 4–5, 8, 19; see also Tucker & Cadora, supra note
231, at 4 (“The solution to public safety must be locally tailored and locally determined.”).
254. See AUSTIN ET AL., supra note 53, at 4, 8, 19, 25 (noting that a lasting reduction on
crime depends on efforts to revitalize high-incarceration neighborhoods). The failure to
reinvest monies into social justice, health, and infrastructure for communities “is a symptom
of [JRI’s] failure to meaningfully engage these communities in the first place.” Chung & Pearl,
supra note 248. As a result, JRI reinvestment strategies have reflected the priorities of state
policy makers. Id. (advocating for community control over redirected investments); see also
Tucker & Cadora, supra note 231, at 5 (envisioning localities making their own decisions on
how to spend reallocated dollars).
255. Greaves, supra note 212; see also McLeod, supra note 14, at 706 (arguing that
decarceration requires more transformative visions that reorient the state and the law “from
punitive to social ends”).

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entrench carceral practices.256 Perhaps more overlooked is that both the
justice reinvestment concept, and scholars and advocates who criticize the
formalized JRI for departing from that concept, do not explicitly consider
people in prison—whose circumstances are the ostensible focus of
community investments—among the “residents” who might have valuable,
locally tailored strategies for stronger and safer neighborhoods.257 I raise
these shortcomings to bring a paradox into focus: new ways of thinking
ushered in by people in prison exclude people in prison from those new ways
of thinking. People in prison developed a heightened understanding of a
problem that has plagued them and confounded scholars, policy makers and
advocates, but are disregarded as collaborators, let alone thought leaders, in
developing a heightened understanding of its solutions. This simultaneous
use and disregard—taking their finished research but ignoring the potential
on the inside for unfinished ideas—reproduces the very ideology that the
Think Tank upended. Making tremendous use of the Green Haven Study but
discounting the implications that its intellectual formulation and vision for
community-specific investment came from “inside the bowels of the prison
system”258 turns a blind eye to the possibilities that people in prison can
generate valuable or even better interventions than traditional “experts.”259
Justice reinvestment, as practiced in this way simultaneously recognizes
and ignores that substantial numbers of residents in million-dollar blocks are
in prison. This is perhaps not surprising because people in prison are
routinely excluded from American deliberative processes. But when large
constituencies in high-incarceration neighborhoods are, by definition,

256. See McLeod, supra note 14, at 666, 670–71 (describing decarceration that is driven
primarily by cost-cutting as “neoliberal penal reform”); GOTTSCHALK, supra note 15, at 25
(“[M]ounting budgetary and fiscal pressures will not be enough on their own to spur cities,
counties, states, and the federal government to make deep and lasting cuts in their
incarceration rates and to address the far-reaching political, social, and economic
consequences of the carceral state.”).
257. See, e.g., Tucker & Cadora, supra note 231, at 5 (encouraging the “mobiliz[ation of]
people returning home from prison” to join with other community members to rebuild and
redesign the neighborhood, but in a post-release context); AUSTIN ET AL., supra note 53, at 4,
21 (discussing the role of local stakeholders and “residents” in discussions about
reinvestment); id. at 25 (highlighting a state that gave “scant attention” to “which kinds of
investments might best improve the circumstances of people returning to the neighborhoods
so vividly mapped in [million-dollar blocks]”).
258. CTR. FOR NULEADERSHIP, supra note 7, at 6. “[Decades] before the emergence of the
Justice Reinvestment concept, Eddie [Ellis and others in Green Haven prison] delineated the
neighborhoods that fill the cells of [New York]’s prison system and raised [their] voice in
demand for an investment in those very communities.” CTR. FOR NULEADERSHIP ON URB.
SOLS., supra note 243, at 12 (remarks by former deputy commissioner of the New York City
Department of Probation Clinton Lacey).
259. Cf. Goodman & Smith, supra note 196, at 103–04 (interviewing Ellis, who discussed
the next generation of the Think Tank, as well as ideas on community safety generated by
lifers’ groups in other prisons); Burton, supra note 1, at 37 (stating that “the Think Tank’s
activism inspired others within the prison system” and that “[t]oday there is an entire
constellation of organizations that function within and outside of the New York State Prisons
system [including a recent generation of activists,] and many of them trace their
political-intellectual genealogy to Attica by way of the Think Tank”).

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incarcerated, and successful reinvestment in their neighborhoods is rooted in
developing the visions of local constituencies, this omission is consequential.
This missing element is crucial for another reason: neighborhoods hurting
from poverty and criminalization have been chronically deprived of role
models who succeeded in or outside the community, in part because
generations of leaders from Black, Latinx, and tribal communities were sent
to prison.260 Emboldening neighborhood-specific idea generation on the
inside is tied, therefore, not only to the successful transition of people
returning home, but also to the success of the community itself. If
community leaders are eventually coming out of our prisons, then igniting,
developing, and investing in their talent and visions for community-driven
safety is an overlooked form of investing in the communities to which they
will return.
Indeed, the Think Tank envisioned that people in prison would play a role
in community-specific investment because their “futures are tied up with
those communities.”261 This was not just a reference to back-end or in-prison
programming but to tightening the relationship between people in prison and
their neighborhoods.262 Because 95 percent of people in prison will return
260. See WARD CHURCHILL & JIM VANDER WALL, AGENTS OF REPRESSION: THE FBI’S
SECRET WARS AGAINST THE BLACK PANTHER PARTY AND THE AMERICAN INDIAN MOVEMENT
60–66, 257 (2002) (documenting Black and tribal community leaders who were imprisoned
in the 1960s and 1970s as part of the FBI’s covert and targeted campaign, COINTELPRO, to
decimate the Black Panther Party, the American Indian Movement, and other freedom
movements to prevent their ideas from influencing youth); see also Ta-Nehisi Coates, The
Black Family in the Age of Mass Incarceration, ATLANTIC (Oct. 2015),
https://www.theatlantic.com/magazine/archive/2015/10/the-black-family-in-the-age-ofmass-incarceration/403246/ [https://perma.cc/3CN3-UMPF] (describing the “American
tradition of criminalizing [B]lack leadership” well before COINTELPRO); Widener, supra
note 192, at 49 (indicating that COINTELPRO used the criminal legal system to “remove
people with undesirable political views”); Eugenia C. South, If Black Lives Really Matter, We
Must Invest in Black Neighborhoods, WASH. POST (Mar. 16, 2021),
https://www.washingtonpost.com/opinions/2021/03/16/black-neighborhoods-parks-safety/
[https://perma.cc/3LZB-L677] (stating that “mass incarceration extracts resources and talent
from Black communities”); Giovannitti, supra note 205 (“We didn’t have models of people
who made it outside the community.” (quoting Larry White)). The incarceration of leaders of
color has persisted over decades, though the connection is “not [always] immediately legible
as political.” Burton, supra note 1, at 4–6 (stating that imprisoning Black Panthers facilitated
the emergence of revolutionary consciousness in prisons); Greaves, supra note 212
(interviewing Eddie Ellis, who projected that, in the twenty-first century, “the leadership of
the Black community is going to come out of the universities and out of the prisons”); ASSATA
SHAKUR, ASSATA: AN AUTOBIOGRAPHY 52 (1987) (“Black revolutionaries do not drop from
the moon. We are created by our conditions. Shaped by our oppression. We are being
manufactured in droves in the ghetto streets, places like attica, san quentin, bedford hills,
leavenworth, and sing sing. They are turning out thousands of us.”); Ben Brazil, Ferin Kidd
Went from Prison to Fighting for Black Voices in Orange County, DAILY PILOT (July 8, 2020),
https://www.latimes.com/socal/daily-pilot/entertainment/story/2020-07-08/ferin-kidd-wentfrom-prison-to-fighting-for-black-voices-in-orange-county [https://perma.cc/CY3D-QG9P]
(profiling community activist in Orange County, California, who had access to Black male
role models for the first time while in prison).
261. Burton, supra note 1, at 153 (quoting Eddie Ellis).
262. See Clines, supra note 216 (noting that Ellis taught classes in the seven neighborhoods
while on work release).

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to their home communities, the study group insisted that “what we do in the
prisons can’t be done in the abstract, removed from these neighborhoods and
their Afrocentric and Latino cultures.”263 Their intention to enhance this
connection remains unfinished.
Of course, most decarceral ideas seeded in prison will be unfinished; the
status and isolation of people in prison deprives them of resources, power,
access, credibility, and significance to comprehensively advance, let alone
implement, their visions. Professor Allegra McLeod has argued that the
unfinished quality of alternatives to criminal law reform is not a flaw but “a
source of critical strength and possibility.”264 Aspirational ideas to reduce
reliance on incarceration can transform into more conceivable, and even
essential, possibilities for change.265 As organizer and abolitionist Mariame
Kaba stated about “invest-divest,” the once-obscure concept popularized in
2014 by the Movement for Black Lives, “[Eddie Ellis] made it possible for
us to think that thought.”266
263. Id. (quoting Ellis). The Think Tank submitted a proposal to the state legislature to
require housing, education, and crime-prevention duties as a condition of parole, and for
people in prison to receive community development training while in prison. Id. (describing
classes by Ellis encouraging people in prison to become creatively involved in community
interventions); Widener, supra note 192, at 51; Ellis, supra note 211, at 99, 105 (advocating
for collective action between people in prison and the community); Goodman & Smith, supra
note 196, at 104 (interviewing Ellis, who stated that “what takes place in [the prison] shapes
what takes place in the community”). Indeed, other people in prison have expressed a similar
ethos. See Gimbel & Muhammad, supra note 39, at 1506 (discussing an initiative created by
people in prison “that seek[s] to stem cycles of violence and empower communities devastated
by mass incarceration by bridging the gap between prisoners and the communities to which
they will eventually return”); id. at 1501 (“Since the majority of incarcerated gang members
will return to their communities, any sensible approach to reducing the gang threat must start
behind prison walls.”).
264. Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of
Unfinished Alternatives, 8 HARV. UNBOUND 109, 113–14, 123 (2013) (calling on law scholars
to engage seriously with partial, aspirational, and in-process alternatives to conventional
criminal law administration and explaining that the unfinished character holds promise to
produce new conceptual approaches and “new ways of thinking and speaking about criminal
law”); see also THOMAS MATHIESEN, THE POLITICS OF ABOLITION: ESSAYS IN POLITICAL
ACTION THEORY 13 (1974) (“[T]he alternative lies in the unfinished, in the sketch, in what is
not yet fully existing.”).
265. See McLeod, supra note 264, at 114, 119–20, 132 (“[U]nfinished alternatives may
make it feasible for fundamentally distinct approaches to become incrementally conceivable,
workable, and enforceable, and for new voices to gain increased visibility—producing an
opening first at the level of ideas, then within our institutions, and perhaps ultimately within
locations of power and in our criminal law and politics.”).
266. MARIAME KABA, WE DO THIS ‘TIL WE FREE US: ABOLITIONIST ORGANIZING AND
TRANSFORMING JUSTICE 174 (2021) (“Eddie [Ellis] was [constantly] talking about
[invest/divest] in the early 2000s . . . [in] room after room after room”); see also Goodman &
Smith, supra note 196, at 103 (interviewing Ellis, who was able to disseminate the concept
because he was released from prison, and who emphasized that the model was formulated and
developed not by him alone but by many members of the Think Tank who remained in prison);
Alexandra Marks, N.Y. Prison Religion Program Helps Turn Lives Around, CHRISTIAN SCI.
MONITOR (Mar. 11, 1997), https://www.csmonitor.com/1997/0311/031197.us.us.2.html
[https://perma.cc/P5M7-T235] (stating that, in the mid-1990s, Ellis was “spearheading a
state-wide effort to urge [New York] Governor [George] Pataki to take the $21 million dollars
slated to build three new jails and instead put it into neighborhood services”).

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2. Rethinking Violence
Developing these unfinished ideas holds potential to progress toward more
transformative, long-term decarceral aims. In this section, I present one
example of how an organic, outside-inside conversation can spark this
innovation.
Empirical research has shown that noncarceral, community-driven
violence interventions can dramatically reduce involvement in gun and
extreme violence.267 Recognized as a pioneer in the violence-reduction field,
Eddie Bocanegra today “runs one of the most innovative violence-prevention
programs in the country.”268 His initial vision for a novel intervention, which
laid the foundation for his current work, was spurred by a generative
conversation in prison.269
In 2005, twenty-nine-year-old Bocanegra, a Latino man who had been in
prison since age eighteen, received a visit from his brother Gabriel.270 A
decorated U.S. Army veteran, Gabriel had just returned from his second tour
in Iraq.271 Gabriel struggled with combat-related trauma and advised the
elder Bocanegra that he, too, was experiencing the traumatic effects of

267. See, e.g., Roge Karma, How Cities Can Tackle Violent Crime Without Relying on
Police, VOX (Aug. 7, 2020, 8:10 AM), https://www.vox.com/21351442/patrick-sharkeyuneasy-peace-abolish-defund-the-police-violence-cities [https://perma.cc/3AJW-824K] (“We
now have a pretty well-established base of evidence telling us that residents and local
organizations are at least as effective as the police in controlling violence.” (quoting
sociologist Patrick Sharkey)); id. (emphasizing that community groups need funding equal to
what police would receive to be effective); Patrick Sharkey, Gerard Torrats-Espinosa &
Delaram Takyara, Community and the Crime Decline: The Causal Effect of Local Nonprofits
on Violent Crime, 82 AM. SOCIO. REV. 1214, 1234 (2017); DON STEMEN, VERA INST. OF JUST.,
THE PRISON PARADOX: MORE INCARCERATION WILL NOT MAKE US SAFER 5 (2017),
https://www.vera.org/downloads/publications/for-the-record-prison-paradox_02.pdf
[https://perma.cc/BLH7-C3MS] (finding that increased incarceration has no effect on violent
crime and in some instances may increase crime in neighborhoods with concentrated
incarceration); Amanda Alexander & Danielle Sered, Making Communities Safe, Without the
Police, BOS. REV. (Nov. 1, 2021), https://bostonreview.net/articles/making-communities-safewithout-the-police [https://perma.cc/HW53-R35F] (“In cities and towns across the country,
people have produced safety in ways the criminal punishment system has not and cannot.”);
David Alan Sklansky, Addressing Violent Crime More Effectively, BRENNAN CTR. (Sept. 27,
2021), https://www.brennancenter.org/our-work/analysis-opinion/addressing-violent-crimemore-effectively [https://perma.cc/2XMR-YTCZ].
268. Alex Kotlowitz, The Killing of Adam Toledo and the Colliding Cycles of Violence in
Chicago, NEW YORKER (Apr. 24, 2021), https://www.newyorker.com/news/dispatch/thekilling-of-adam-toledo-and-the-colliding-cycles-of-violence-in-chicago
[https://perma.cc/
TJA8-AMWS].
269. Audie Cornish, Chicago Teens and Combat Veterans Join Forces to Process
Trauma, NPR (Jan. 25, 2016, 4:05 PM), https://www.npr.org/transcripts/463875598?
storyId=463875598 [https://perma.cc/X9LL-M6EE].
270. See Kotlowitz, supra note 268; Michael Golden, Interview with Eddie Bocanegra,
Gun Safety Leader and Senior Director at READI Chicago, THE GOLDEN MEAN (Jan. 8, 2020),
https://www.thegoldenmean.us/interview-with-eddie-bocanegra-gun-safety-leader-andsenior-director-at-readi-chicago/ [https://perma.cc/GP6Y-PVZM].
271. Golden, supra note 270; Cornish, supra note 269.

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violence.272 Along with the stabbings and suicides that occurred in prison,
and the violence that the structure of incarceration itself inflicted, Bocanegra
had been exposed to household violence, violence unfolding in school, and
fatal shootings during his childhood in Little Village, Chicago.273 “Eddie,
actually there were some nights that growing up as a kid living in Little
Village was probably worse or equally as bad as Iraq,” Gabriel said.274
Bocanegra observed parallels between his brother’s reaction to violence
on the battlefield, his own reaction to violence in the neighborhood, and a
hypervigilance among people surrounding him in prison who committed,
witnessed, and survived violence.275 Gazing across the visiting room table
at the Bronze Star on Gabriel’s uniform, he wondered how Gabriel’s acts of
violence were valorized.276
Sparked by his brother’s wisdom and after observing people in prison,
Bocanegra began to develop a different understanding of gun violence that
has since informed the violence-prevention field. After fourteen years in
prison, he was released in 2008.277 Through a local church, Bocanegra
mentored kids who were in the same street gangs with which he was involved
at a young age.278 He was then recruited to join CeaseFire, now known as
Cure Violence, a street outreach program that intervened on the spot to
mediate and prevent heated disputes from escalating into violence, but the
model was limiting.279 Reflecting on his meeting with Gabriel, he began to
272. See Sharon Cohen, War Vets, Kids Scarred by Gangs Help Each Other, KSL.COM
(Sept. 27, 2014, 9:51 AM), https://www.ksl.com/article/31694208/war-vets-kids-scarred-bygangs-help-each-other [https://perma.cc/86S2-B4DX].
273. See Cornish, supra note 269; Golden, supra note 270.
274. Cohen, supra note 272.
275. See Golden, supra note 270.
276. Id.
277. Cohen, supra note 272; Golden, supra note 270. In retaliation for a shooting that left
his friend paralyzed, eighteen-year-old Bocanegra fatally shot another eighteen-year-old who
Bocanegra thought was in a rival gang. Id.; Katie Mingle, After Committing Murder as a Teen,
a Chicago Man Dedicates His Life’s Work to His Victim, WBEZ CHI. (July 19, 2013),
https://www.wbez.org/stories/after-committing-murder-as-a-teen-a-chicago-man-dedicateshis-lifes-work-to-his-victim/8b74459e-b1f6-4227-8ac6-056fa88e7ea6
[https://perma.cc/
5K5H-UFK5]. Bocanegra was convicted of murder and sentenced to twenty-nine years in
prison. Cohen, supra note 272.
278. Golden, supra note 270; Telephone Interview with Eduardo Bocanegra, Senior Dir.,
READI Chi. (Nov. 11, 2021).
279. Golden, supra note 270. Although Cure Violence, or the “Interrupters Model,” is
often hailed as the model of violence intervention, research has shown mixed results. Cure
Violence (Chicago, Illinois), YOUTH.GOV, https://youth.gov/content/cure-violence-chicagoillinois [https://perma.cc/Z8SE-9X8F] (last visited Sept. 2, 2022); Karma, supra note 267;
Ashley Luthern, Gun Violence as a Public Health Issue: How Does the “Cure Violence”
Interrupter Model Work?, MILWAUKEE J. SENTINEL (Sept. 25, 2019, 5:00 AM),
https://www.jsonline.com/story/news/special-reports/milwaukee-violence/2019/09/25/
public-health-how-cure-violence-interrupts-shootings/2390180001/
[https://perma.cc/
M9LM-EECK] (explaining that the model takes a public health approach, treating violence as
a contagion, and “pay[s] and train[s] trusted insiders of a community to anticipate where
violence will occur and intervene before it erupts”). Turnover is high. See José Santos Woss,
Violence Interrupters: A Key Element of Justice Reform, FRIENDS COMM. ON NAT’L LEGIS.
(Dec. 9, 2021), https://www.fcnl.org/updates/2021-12/violence-interrupters-key-elementjustice-reform [https://perma.cc/6TJG-UGKT] (noting that the model can retraumatize

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think about new ways to conceptualize urban youth, whom criminal law and
society labeled as “thugs.”280
Growing up in poor, disinvested communities, with no opportunity or
mobility, in families struggling with substance abuse and domestic violence,
Bocanegra understood that he and others in prison carried chronic trauma
from an early age.281 He began to understand that this constant exposure to
trauma fueled neighborhood violence.282 Joining a gang meant protection
and ownership over their lives.283 Youth found social capital in the streets,
only to escape near-death shootings, watch loved ones get shot before their
eyes, and carry guns to survive.284 Building a connection to the violence in
warfare, Bocanegra began to understand urban youth who lived in
communities with high rates of gun violence as “child soldiers” and the
inner-city streets of Chicago as “kind of a combat zone.”285
Any effort to interrupt this cycle of trauma and violence and equip
adolescents with some tools to begin to heal would require young people to
recognize signs of their own trauma and its roots.286 Bocanegra understood
the barriers to youth engagement and thought that war veterans might be

interrupters); see also Gimbel & Muhammad, supra note 39, at 1519 (arguing that Cure
Violence “does not pretend to offer solutions to the underlying social problems giving rise to
pervasive violence in the first place”).
280. See Golden, supra note 270.
281. See id.
282. See id.; Eddie Bocanegra, Erica Ford & Mike McBride, There’s a Proven Way to
Reduce Gun Violence in America’s Cities. We Just Need to Fund It, TIME (July 8, 2021),
https://time.com/6078496/reduce-gun-violence-americas-cities/
[https://perma.cc/5YP8BKNZ] (discussing this intergenerational cycle of trauma and violence); ERICA J. ADAMS,
JUST. POL’Y INST., HEALING INVISIBLE WOUNDS: WHY INVESTING IN TRAUMA-INFORMED CARE
FOR CHILDREN MAKES SENSE 1 (2010), https://justicepolicy.org/wp-content/uploads/
justicepolicy/documents/10-07_rep_healinginvisiblewounds_jj-ps.pdf
[https://perma.cc/
HR43-3855] (stating that “between 75 and 93 percent of youth entering the juvenile justice
system annually . . . have experienced some degree of trauma”).
283. See Golden, supra note 270 (interviewing Bocanegra, who recounted becoming
involved in street gangs at an early age for safety purposes, including to protect his siblings).
284. See JOCELYN FONTAINE, NANCY LA VIGNE, DAVID LEITSON, NKECHI ERONDU,
CAMERON OKEKE & ANAMIKA DWIVEDI, URB. INST., “WE CARRY GUNS TO STAY SAFE”:
PERSPECTIVES ON GUNS AND GUN VIOLENCE FROM YOUNG ADULTS LIVING IN CHICAGO’S WEST
AND SOUTH SIDES 4–5 (2018), https://www.urban.org/sites/default/files/publication/
99091/we_carry_guns_to_stay_safe_1.pdf [https://perma.cc/RW5Z-3AD9]; Annie Sweeney,
Veterans Help Chicago Teens Through “War” Times, CHI. TRI. (July 11, 2014, 2:00 AM),
https://www.chicagotribune.com/news/ct-urban-warriors-met-20140711-story.html
[https://perma.cc/8JT9-D77Q].
285. Golden, supra note 270 (quoting Bocanegra, who noted that the nation does not invest
in youth living in war zones in its own backyards); Nissa Rhee, Veterans, Gang Members Find
Peace in Unexpected “Brotherhood,” CHRISTIAN SCI. MONITOR (Nov. 11, 2015),
https://www.csmonitor.com/USA/Military/2015/1111/Veterans-gang-members-find-peacein-unexpected-brotherhood [https://perma.cc/GQ2G-YJWG] (quoting Bocanegra, who stated
that NGOs provide aid to child soldiers). Studies reflect striking parallels between the
experiences of child soldiers and gang-involved youth. See, e.g., Patricia K. Kerig, Cecilia
Wainryb, Michelle Sinayobye Twali & Shannon D. Chaplo, America’s Child Soldiers:
Toward a Research Agenda for Studying Gang-Involved Youth in the United States, 22 J.
AGGRESSION, MALTREATMENT & TRAUMA 773, 775–77 (2013).
286. See Golden, supra note 270.

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uniquely qualified to mentor young people in CeaseFire zones.287 He
reasoned that neighborhood youth joined gangs, and young adults enlisted in
the armed forces, for a similar reason: identity.288 To check his bias, he
administered an informal survey to a dozen urban youths.289 Inviting them
to rank their top three choices, the survey asked, “Who do you respect?”
followed by twenty or thirty options: firefighters, police, teachers, coaches,
doctors, lawyers, veterans, street gangs, and more.290 The top response was,
overwhelmingly, veterans.291 He debriefed the kids, who explained that
veterans, too, wore insignia, carried guns, went on missions, had ranks, and
had a strong sense of brotherhood and belonging.292
In 2013, the YMCA of Metropolitan Chicago recruited Bocanegra, who
was pursuing a master’s degree at the University of Chicago, to lead its new
Youth Safety and Violence Prevention Program.293 He shared his concept
for a youth violence intervention program with evidence to cement it.294 The
287. Rhee, supra note 285; Michelle Miller, Urban Warriors: Stemming the Tide of Street
Violence, CBS NEWS (July 31, 2016, 9:49 AM), https://www.cbsnews.com/news/urbanwarriors-stemming-the-tide-of-street-violence-2/ [https://perma.cc/X8B6-DZP3]. Angela Y.
Davis has described the “striking similarities in the human populations of [the military and the
prison].” See DAVIS, supra note 33, at 39 (“[M]any young people—especially young people
of color—who enlist in the military often do so in order to escape a trajectory of poverty,
drugs, and illiteracy that will lead them directly to prison.”).
288. Telephone Interview with Eduardo Bocanegra, supra note 278; Golden, supra note
270 (interviewing Bocanegra, who stated that identity formation was key to his involvement
with street gangs because he had few employment opportunities and role models in the
community upon which to model his future).
289. Telephone Interview with Eduardo Bocanegra, supra note 278.
290. Id.; Taylor Brown, Urban Warriors: The Unexpected Pair, CMTY. REC MAG. (Jan. 8,
2021), https://communityrecmag.com/urban-warriors-the-unexpected-pair/ [https://perma.cc/
X6WR-LPVJ]; Rhee, supra note 285; Cornish, supra note 269.
291. Telephone Interview with Eduardo Bocanegra, supra note 278; Brown, supra note
290.
292. Telephone Interview with Eduardo Bocanegra, supra note 278; Rhee, supra note 285;
Cornish, supra note 269.
293. Telephone Interview with Eduardo Bocanegra, supra note 278 (stating that after his
release from prison, he built connections with state representatives through his work as a
community organizer, and that the YMCA was familiar with his community work); Nissa
Rhee, Healing Is Prevention, U. CHI. MAG., May–June 2015, at 18, 19 (noting that Bocanegra
was featured in the 2011 documentary, The Interrupters). See generally THE INTERRUPTERS
(Kartemquin Films 2011).
294. Telephone Interview with Eduardo Bocanegra, supra note 278 (stating that Bocanegra
deepened his understanding and vocabulary about the effects of trauma on brain development
in children through his course and community work). After his release, Bocanegra, who
obtained his GED in prison, attended college and graduate school, where he pursued degrees
in social work and began to incubate his idea for a youth violence intervention program with
social scientists who studied trauma. Id. Skeptical of his idea, the YMCA performed more
formal preassessments of its youth. Id. The YMCA’s findings echoed those in Bocanegra’s
informal surveys. Brown, supra note 290. In fact, combat veterans and urban youth had far
more in common. See Lois Beckett, The PTSD Crisis That’s Being Ignored: Americans
Wounded in Their Own Neighborhoods, PROPUBLICA (Feb. 3, 2014, 3:21 PM),
https://www.propublica.org/article/the-ptsd-crisis-thats-being-ignored-americans-woundedin-their-own-neighbor [https://perma.cc/VCR8-FY8L] (stating that research shows that
people in neighborhoods hurting from violence develop post-traumatic stress disorder (PTSD)
at rates comparable to, or even higher than, war veterans, and citing research that people with
PTSD may be more likely to carry a weapon to “restore feelings of safety”); Jill Tucker,

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next year, the YMCA, in collaboration with the Adler School of Professional
Psychology, launched Urban Warriors, a dynamic weekly mentoring
program that paired veterans who served in Iraq or Afghanistan with
adolescents from Chicago neighborhoods with the highest levels of poverty
and violence.295 The program was piloted in Little Village, Bocanegra’s
childhood neighborhood.296
Feeling an instant bond, the veterans shared how experiencing violence
affected them, providing guidance on processing and responding to
trauma.297 The teens gradually opened up: some expressed being on high
alert after a shooting, after hearing a loud vehicle drive by, or after seeing
someone selling drugs on the street.298 This hypervigilance was also
common among veterans returning home.299 A preassessment instrument
administered by the University of Chicago found that many youths in the
pilot program had more symptoms of post-traumatic stress disorder than their
veteran mentors.300 Since completing the program, some teens expressed a
Children Who Survive Urban Warfare Suffer from PTSD, Too, S.F. CHRON. (Aug. 25, 2007),
https://www.sfgate.com/education/article/Children-who-survive-urban-warfare-suffer-from2524472.php#ixzz2KKiW4CXq [https://perma.cc/WZ68-NAVQ] (citing research that up to
one-third of children in neighborhoods with high violence have PTSD, nearly twice the rate
of troops returning from war zones in Iraq).
295. Brown, supra note 290; Cornish, supra note 269. The YMCA identified youth from
the juvenile system and housing projects, targeting those in gangs or on probation, and
received referrals from courts and schools. Sweeney, supra note 284; Rhee, supra note 293.
Up to 90 percent of the youth living in the areas that Urban Warriors served were “exposed to
serious and chronic forms of violence.” Rhee, supra note 285 (stating that some youth
experienced homelessness, or physical or sexual abuse). The military veterans that Bocanegra
recruited grew up in the same neighborhoods as the youth. Brandis Friedman, Urban
Warriors, WTTW CHI. (Mar. 18, 2015, 10:30 AM), https://news.wttw.com/2015/03/18/urbanwarriors [https://perma.cc/2ZJD-SP5R]. Some were once involved with gangs, and some
were not much older than their mentees. Miller, supra note 287; Rhee, supra note 285 (stating
that veterans and youth came together on a weekly basis, for sixteen weeks, for team building,
talking, playing games, field trips, and learning strategies for coping with trauma and loss).
296. Sweeney, supra note 284.
297. Rhee, supra note 285; see also Sweeney, supra note 284 (stating that the veterans
“kn[e]w well the struggle of surviving a dangerous place”); Cornish, supra note 269; Miller,
supra note 287. The program provided a sense of purpose that some veterans may struggle to
find, giving them a chance to “model healing.” Brown, supra note 290 (describing critical
benefits that the program provided to veterans); Rhee, supra note 285 (“While the primary
goal of Urban Warriors is to help the mentees, many of the veterans have found it beneficial
as well.”); Sweeney, supra note 284 (same); War Vets, Kids Scarred by Gangs Help Each
Other, COLUMBIAN (Nov. 22, 2014, 12:00 AM), https://www.columbian.com/news/
2014/nov/22/war-vets-kids-scarred-by-gangs-help-each-other/
[https://perma.cc/VUW76MVW]. Some mentees said that it was the veterans who motivated them to come back.
Friedman, supra note 295.
298. Cornish, supra note 269; Rhee, supra note 285 (stating that of the 435 people killed
in Chicago in 2014 (the year the program launched), 46 percent were between the ages of
fifteen and twenty-four).
299. Cornish, supra note 269; Rhee, supra note 285; see also Beckett, supra note 294
(discussing “chronic hyperarousal,” a severe symptom of PTSD).
300. Telephone Interview with Eduardo Bocanegra, supra note 278; Golden, supra note
270; see also Tucker, supra note 294 (citing research that up to one-third of children in
neighborhoods with high violence have PTSD, nearly twice the rate among troops returning
from war zones in Iraq); Leslie Morland, Eric Elbogen & Kirsten Dillon, Anger and PTSD, 31
PTSD RSCH Q., no. 3, 2020, at 1 (stating that decades of research have found “a robust

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greater sense of self-worth, were no longer involved in gangs, returned to
high school, and spoke of plans to go to college.301
The innovative, research-based model gained national attention.302 It was
“on the cutting edge of what emerging science [wa]s telling us about the
effects of trauma.”303 The MacArthur Foundation awarded the program a
$400,000 grant.304 In 2015, then mayor of Chicago Rahm Emanuel
announced his intent to secure funding to extend the program to “every part
of the city of Chicago.”305 Bocanegra was invited to speak to the Centers for
Disease Control and Prevention about the program, and the mayor’s office
invited him to speak to members of the Obama White House.306
The innovation disrupted the prevailing narrative on neighborhood
violence, shaping new ideas and inspiring a wide array of stakeholders to
think differently about—and value—urban youth. Igniting his thinking in
prison accelerated Bocanegra’s leadership in the polity upon his release,
paving a path to forge partnerships and open new ways to understand—and
reduce—violence. His work would soon usher in new collaborations.
Following Chicago’s surge in gun violence in 2016, the University of
Chicago Crime Lab drew from rigorous research to develop a concept for a
violence intervention: combining cognitive behavioral therapy (CBT) with
paid transitional employment for people at the highest risk of gun
violence.307 The lab brought the idea to Heartland Alliance, an anti-poverty
relationship between the incidence of PTSD [in veterans] and elevated rates of anger,
aggression and violence”).
301. See Rhee, supra note 285; Miller, supra note 287; Sweeney, supra note 284; see also
Joseph Darius Jaafari, An Unlikely Bond Between Chicago Teens and Veterans Is Saving Lives
in the City, NATIONSWELL (Aug. 24, 2018), https://nationswell.com/chicago-veterans-teens/
[https://perma.cc/S242-AAXU] (stating that outcomes have been mostly anecdotal).
302. Rhee, supra note 285.
303. Id. (quoting the director of the Chicago Center for Youth Violence Prevention,
Professor Deborah Gorman-Smith). At the time, a growing body of scientific literature
showed that children who were exposed to violence and endured trauma before adolescence
struggled to learn in school and had “measurably different” brains and brain function than
those who did not experience high levels of trauma. Avi Asher-Schapiro, Should Growing Up
in Compton Be Considered a Disability?, VICE (Oct. 20, 2015, 9:24 PM),
https://www.vice.com/en/article/d3933m/should-growing-up-in-compton-be-considered-adisability [https://perma.cc/U6NB-9GEQ] (reporting on a lawsuit in which families and
teachers argued that trauma was a disability that the Compton, California, school district had
failed to accommodate).
304. Friedman, supra note 295; YMCA of Metropolitan Chicago, MACARTHUR FOUND.,
https://www.macfound.org/grantee/ymca-of-metropolitan-chicago-440/
[https://perma.cc/
WFW4-MSRU] (last visited Sept. 2, 2022).
305. Rhee, supra note 285. Since its formation, Urban Warriors has served more than 400
youths across genders in multiple Chicago neighborhoods. Brown, supra note 290.
306. See Rhee, supra note 285; Telephone Interview with Eduardo Bocanegra, supra note
278.
307. READI: Connecting Chicago’s Youth at the Highest Risk of Gun Violence to
Transitional Jobs, Support Services, and Cognitive Behavioral Therapy, RESULTS FOR AM.
(Dec. 9, 2020), https://catalog.results4america.org/program/readi-chicago/readi-connectingchicagos-highest-risk-youth-to-transitional-jobs-support-services-and-cognitive-behavioraltherapy [https://perma.cc/5PRB-PFQY] (stating that, in 2016, Chicago experienced a 58
percent increase in homicides and a 43 percent increase in nonfatal shootings); Chicago Ends
Year with 762 Killings, the Most in 2 Decades, N.Y. TIMES (Jan. 1, 2017),

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and human rights organization.308
Heartland partnered with local,
community-based organizations to launch READI Chicago, an initiative that
connects people at the highest risk of gun violence in Chicago to eighteen
months of subsidized transitional employment, paid group CBT sessions, and
wraparound support services.309
In 2017, Heartland recruited Bocanegra to build, lead, and implement
READI.310 Bocanegra hired a team whose members were predominantly
from the same neighborhoods as prospective participants to make
recommendations on outreach and engagement.311 Barriers to outreach were
considerable. The population READI serves—those most likely to shoot or
be shot—had little to no traditional work histories, were not connected to

https://www.nytimes.com/2017/01/01/us/chicago-2016-killings.html
[https://perma.cc/
8VLA-2Z2V] (noting that the bulk of the shootings were in five neighborhoods); MAX
KAPUSTIN, JENS LUDWIG, MARC PUNKAY, KIMBERLY SMITH, LAUREN SPEIGEL & DAVID
WELGUS, GUN VIOLENCE IN CHICAGO, 2016, at 13 (2017), https://urbanlabs.uchicago.edu/
attachments/c5b0b0b86b6b6a9309ed88a9f5bbe5bd892d4077/store/82f93d3e7c7cc4c5a29ab
ca0d8bf5892b3a35c0c3253d1d24b3b9d1fa7b8/UChicagoCrimeLab%2BGun%2BViolence
%2Bin%2BChicago%2B2016.pdf [https://perma.cc/35WK-BFQQ] (stating that Black men
ages fifteen to thirty-four make up 4 percent of Chicago’s population but over 50 percent of
its homicide victims).
308. READI: Connecting Chicago’s Youth at the Highest Risk of Gun Violence to
Transitional Jobs, Support Services, and Cognitive Behavioral Therapy, supra note 307.
309. U. CHI. CRIME LAB, READI CHICAGO: A COMMUNITY-BASED APPROACH TO
REDUCING GUN VIOLENCE 2 (2021), https://urbanlabs.uchicago.edu/attachments/
cc07421f48cec7f43282377ffaf1223f7e079b46/store/eb7d1b4c96b0bf0bd7fbf12cd3deeccd1e
075d8c7fdf61481b1a2cd4420/READI+Chicago.pdf [https://perma.cc/4EVT-6GPA] (stating
that participants have access to an additional six months of coaching, support services, and
CBT sessions to help transition to unsubsidized employment); see also Press Release,
Heartland All., Heartland Alliance Announces Innovative Program Designed to Reduce Gun
Violence and Provide Economic Opportunity for Those at Highest Risk of Gun Violence
Involvement (June 8, 2018), https://www.heartlandalliance.org/press_release/heartlandalliance-announces-innovative-program-designed-to-reduce-gun-violence-and-provideeconomic-opportunity-for-those-at-highest-risk-of-gun-violence-involvement/
[https://perma.cc/L76D-DHQE] (stating that READI is funded primarily through private
philanthropy). READI’s CBT sessions are designed to help participants cope with trauma and
learn techniques for dealing with stressful situations to help avoid violent confrontations.
Kotlowitz, supra note 268; see also READI CHI., WORKING TOGETHER TOWARD
SAFER COMMUNITIES:
REFLECTIONS FROM READI CHICAGO 8 (2021),
https://www.heartlandalliance.org/wp-content/uploads/2021/09/READI-Chicago-WorkingTogether-Toward-Safer-Communities-small.pdf [https://perma.cc/Q8V2-8D8Q] (“The men
READI Chicago serves come from communities that have faced decades of disinvestment and
generational trauma.”).
310. READI: Connecting Chicago’s Youth at the Highest Risk of Gun Violence to
Transitional Jobs, Support Services, and Cognitive Behavioral Therapy, supra note 307.
311. Outreach Workers: Using Their Past to Help Others Become Better Men, HEARTLAND
ALL., https://www.heartlandalliance.org/outreach-workers-using-their-past-to-help-othersbecome-better-men/ [https://perma.cc/7Z93-FVPZ] (last visited Sept. 2, 2022); Putting a Face
to the Numbers, HEARTLAND ALL., https://www.heartlandalliance.org/putting-a-face-to-thenumbers/ [https://perma.cc/GTK7-BTGE] (last visited Sept. 2, 2022); Telephone Interview
with Eduardo Bocanegra, supra note 278. Bocanegra managed over one hundred staff to
implement the initiative. Id.; see also Tia Carol Jones, READI Chicago Receives $2 Million
Investment, WKLY. CITIZEN (May 26, 2021), https://citizennewspapergroup.com/news/
2021/may/26/readi-chicago-receives-2-million-investment/ [https://perma.cc/C925-BML4].

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existing programs or social services, or were homeless.312 Few, if any, public
institutions served READI’s target population.313
Despite many obstacles, 55 percent of individuals who were offered
READI participated, an “incredible” success rate considering they “ha[d]
been disappointed so many times in their lives by different social
systems.”314 The levels of violence experienced by READI participants are
staggering. Ninety-eight percent have been arrested and 80 percent have
been victims of violence.315 Of the individuals referred, over one-third had
been shot.316 The average READI participant has been arrested seventeen
times.317 Since its launch, over 800 people have enrolled.318 READI
participants worked 75 percent of the weeks available to them during
in-person programming and are highly engaged.319
A randomized control trial evaluating READI is still in progress, but as of
September 2021, READI participants have had 79 percent fewer arrests for
shootings and homicides.320 In June 2021, President Joe Biden invited
Bocanegra to the White House to discuss investing in community-based
violence interventions.321 The next month, Attorney General Merrick
312. Press Release, Heartland All., supra note 309; Nissa Rhee, Radical New Program
Finds Men Most Likely to Be Shot—and Hires Them, BLOCK CLUB CHI. (July 26, 2018, 8:20
AM), https://blockclubchicago.org/2018/07/26/radical-new-program-finds-men-most-likelyto-be-shot-and-hires-them/ [https://perma.cc/J3AC-MRPY].
313. See Patrick Smith, Anti-Violence Programs Are Working. But Can They Make a Dent
in Chicago’s Gun Violence?, WBEZ CHI. (Nov. 1, 2021, 6:00 AM), https://www.wbez.org/
stories/chicago-anti-violence-efforts-succeed-but-shootings-rise/07af00be-03ae-4a4d-adba71e688301a60 [https://perma.cc/9D8F-E38Q] (stating that the only public institution to which
many in the target population had any sustained connection was the criminal legal system).
READI identifies prospective participants through referrals from community partner
organizations, referrals from corrections institutions of individuals reentering the community
from jails and prisons, and a risk-assessment tool developed by the Crime Lab to predict a
person’s risk of becoming involved in gun violence. U. CHI. CRIME LAB, supra note 309, at
1–2; READI: Connecting Chicago’s Youth at the Highest Risk of Gun Violence to Transitional
Jobs, Support Services, and Cognitive Behavioral Therapy, supra note 307; see also READI
CHI., supra note 309, at 8 (noting that participants are predominantly Black men ages eighteen
to thirty-two); id. at 5 (stating that, in 2016, 87 percent of shooting victims in Chicago were
eighteen and older).
314. Smith, supra note 313 (quoting Cornell University Professor Max Kapustin); U. CHI.
CRIME LAB, supra note 309, at 2.
315. READI CHI., supra note 309, at 8.
316. U. CHI. CRIME LAB, supra note 309, at 2.
317. Id.
318. Impact,
READI
CHI.,
https://www.heartlandalliance.org/readi/impact/
[https://perma.cc/PFQ6-9RX4] (last visited Sept. 2, 2022).
319. U. CHI. CRIME LAB, supra note 309, at 2.
320. Id. at 1.
321. Eddie Bocanegra Meets with President Biden, HEARTLAND ALL.,
https://www.heartlandalliance.org/eddie-bocanegra-meets-with-president-biden/
[https://perma.cc/6F78-QYEF] (last visited Sept. 2, 2022). Following the meeting, President
Biden announced plans to curb gun violence by focusing on community-based interventions
and stricter gun enforcement laws. Remarks by President Biden and Attorney General Garland
on Gun Crime Prevention Strategy, THE WHITE HOUSE (June 23, 2021, 4:55 PM),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/06/23/remarks-bypresident-biden-and-attorney-general-garland-on-gun-crime-prevention-strategy/
[https://perma.cc/2YYT-JZ45]. This followed President Biden’s call on Congress to invest

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Garland and Senator Dick Durbin visited READI Chicago, where the two
met with Bocanegra, his partners, and READI participants to learn more
about the initiative and its outcomes.322 Other cities across the nation have
reached out to discuss adapting READI to their jurisdictions.323
II. LOOKING TO THE INSIDE
The preceding part reveals that people who are incarcerated have
generated and found ways, during their incarceration, to bring about ideas
that incrementally expand possibilities324 for moving toward a decarceral
future. A range of system and nonsystem actors continue to rely on these
inside moves today to confront the violence of the carceral state. Part II
builds on the influence produced by these inside moves by presenting a
theoretical account for why it is essential to think alongside people on the
inside in the project of decarceration. This part argues that our current
moment demands looking to the inside to promote decarceral futures both in
order to stand up to the ideological work of the criminal legal system and to
further our democracy.
A. Disrupting the Carceral Mindset
The criminal legal system and the polity rarely consider people in prison
as agents of change, much less transformative change directed to decarceral
ends. The shrouding of this phenomenon is a symptom of incarceration itself.
Laying bare this phenomenon—and its concealment—manifests what

$5 billion in evidence-based community violence interventions. FACT SHEET: More Details
on the Biden-Harris Administration’s Investments in Community Violence Interventions, THE
WHITE HOUSE (Apr. 7, 2021), https://www.whitehouse.gov/briefing-room/statementsreleases/2021/04/07/fact-sheet-more-details-on-the-biden-harris-administrationsinvestments-in-community-violence-interventions/ [https://perma.cc/W9F3-B46A].
322. Innovative READI Chicago Initiative Brings Hope amid Heartbreak of Gun Violence,
U. CHI. NEWS (Sept. 15, 2021), https://news.uchicago.edu/story/innovative-readi-chicagoinitiative-brings-hope-amid-heartbreak-gun-violence
[https://perma.cc/N7M7-PP3X];
Attorney General Merrick Garland, Sen. Dick Durbin Visit READI Chicago, HEARTLAND
ALL., https://www.heartlandalliance.org/attorney-general-merrick-garland-sen-dick-durbinvisit-readi-chicago/ [https://perma.cc/NBS8-E9B6] (last visited Sept. 2, 2022); Dick Durbin,
Op-ed: At the Heart of Chicago Gun Violence Is Poverty and Trauma, CHI. TRIBUNE (July
29, 2021, 12:31 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-dickdurbin-chicago-gun-violence-20210729-p65ii3uy4feyfgefissottgx6a-story.html
[https://perma.cc/LW72-ER2U].
323. Innovative READI Chicago Initiative Brings Hope amid Heartbreak of Gun Violence,
supra note 322; Kotlowitz, supra note 268; Golden, supra note 270.
324. See FORMAN, supra note 30, at 229 (“I have described mass incarceration as the result
of a series of small decisions, made over time, by a disparate group of actors. If that is correct,
mass incarceration will likely have to be undone in the same way.”); Renagh O’Leary,
Compassionate Release and Decarceration in the States, 107 IOWA L. REV. 621, 632 (2022)
(“Mass incarceration was built piece by piece and must be dismantled the same way.”);
Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. REV. 1156, 1156,
1161, 1239 (2015) (describing abolition as “an aspirational ethic” that entails a “gradual
project of decarceration” in which investment in positive, alternative social projects and
institutions supplants criminal legal enforcement).

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scholar and activist Angela Y. Davis calls the ideological work of the
prison.325
Davis observes that “the prison is present in our lives and, at the same time,
it is absent from our lives.”326 As Davis argues, it is difficult to imagine a
world without prisons, but we are reluctant to think about what takes place
in them.327 Every year the state removes hundreds of thousands of mostly
poor, economically, racially, and socially marginalized people from their
homes and communities, often to remote locations.328 This de jure
segregation produces a banishment from civic life329 that exiles people from
sight, thought, and significance. The prison accomplishes both a material
and a symbolic separation.330 As Davis describes, the prison “functions
ideologically as an abstract site into which undesirables are deposited,
relieving us of the responsibility of thinking about the real issues afflicting
those communities from which prisoners are [disproportionately] drawn.”331
For meaningful decarceration to occur, it is essential, as Davis states, to
attend to this ideological role.332 Thinking alongside people in prison is an
important step toward resisting and refusing—and, ultimately, unsettling—
the ideological work of the prison.
The phenomenon described in the preceding pages remains obscured in
part also by a legal profession that sees people in prison largely as clients to
save or culprits to cage. If meaningful decarceration requires confronting the
ways in which the law and the public think about and understand violence,333
it necessarily requires confronting the ways we think—and do not think—
about people in prison. Engaging in collaboration with people on the inside
holds promise to transform how the law and the legal profession think about
325. DAVIS, supra note 40, at 16 (stating that the existence of the prison “relieves us of the
responsibility of seriously engaging with the problems of our society, especially those
produced by racism and, increasingly, global capitalism”).
326. Id. at 15 (“It is as if prison were an inevitable fact of life, like birth and death.”); see
also Decarceration Nation, 106 David Sklansky, at 07:47 (June 7, 2021),
https://decarcerationnation.com/106-david-sklansky/ [https://perma.cc/88TM-JQDV] (stating
that we have become used to high rates of incarceration and long sentences in this nation, and
that most people do not see or think of prisons, which are out of sight and located far from
major metropolitan centers).
327. DAVIS, supra note 40, at 15.
328. See Akbar, supra note 236, at 1805; Beatrix Lockwood & Nicole Lewis, The Long
Journey to Visit a Family Member in Prison, THE MARSHALL PROJECT (Dec. 18, 2019, 6:00
AM),
https://www.themarshallproject.org/2019/12/18/the-long-journey-to-visit-a-familymember-in-prison [https://perma.cc/CYU6-VR5R]; see also Emma Kaufman, The Prisoner
Trade, 133 HARV. L. REV. 1815, 1843–46 (2020) (revealing that almost all states send some
people to be confined out of state, far beyond their contiguous borders).
329. See Hanan, supra note 50, at 1194–95; Sharon Dolovich, Creating the Permanent
Prisoner, in LIFE WITHOUT PAROLE: AMERICA’S NEW DEATH PENALTY? 96, 96–98 (Charles J.
Ogletree, Jr. & Austin Sarat eds., 2012).
330. See DAVIS, supra note 34, at 22 (“The very existence of the prison forecloses the kinds
of discussions that we need in order to imagine the possibility of eradicating [violence].”).
331. DAVIS, supra note 40, at 16.
332. DAVIS, supra note 34, at 22 (“[W]e have to imagine the abolitionist movement as
addressing those ideological . . . issues as well. Not just the process of removing the material
institutions or facilities.”).
333. See supra notes 28–30 and accompanying text.

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people in prison. Avoiding this collective work means that we really do
depend on the divisions created by criminal law to maintain social control.
The ideological work performed by the prison hides—and the decarceral
imaginations in prison reveal—another source of knowledge. Almost all the
decarceral moves in Part I—challenging the split-jury rule, researching the
neighborhoods that supply the prison population, and reflecting on
intergenerational neighborhood trauma that fuels violence—were shaped by
close observation and frequent encounters with people in prison. Each
intervention was compelled by circumstances, but the prison served as more
than just a site that motivated decarceral moves; the systemic operation of
injustice, and the collective operation of punishment, occasioned access to a
“text” in prison—the people locked inside it.334 That access to systemic
injustice generated a deep reflection that produced analysis and action335
directed toward transformative, decarceral ends. For Duncan, it was
overexposure to unexhausted and what appeared to be factually inaccurate
split-jury convictions; for the people in Green Haven, it was overexposure to
neighborhood saturation that appeared to be pervasive; for Bocanegra, it was
overexposure to a hypervigilance that appeared to be rooted in cycles of
trauma and violence. This is just a slice of the trends they observed and
analyzed in confinement.336 Collective enclosure with people oppressed by
similar economic, social, legal, and political circumstances offers another
way to think about this phenomenon: the sustained exposure, wisdom to
understand the problems that they observed and theorized as structural,
resistance to their circumstances, and deep humanity created an alchemy to
analyze problems differently and to combine theory and action to challenge
the enduring narratives that land people in prison.
A serious willingness to entertain strategies for decarceration outside the
institutional framework must include finding ways to think alongside people
in prison as equal partners. To decline to discover and develop decarceral
334. This notion of a “text” is inspired by Professor Jennifer Gordon’s work on the ways
in which poor immigrant workers develop strategies for social change. Jennifer Gordon, We
Make the Road by Walking: Immigrant Workers, the Workplace Project, and the Struggle for
Social Change, 30 HARV. C.R.-C.L. L. REV. 407, 428, 435 (1995) (describing a
community-based center for immigrant workers that employed popular education techniques
pioneered by Paulo Freire in Latin America and Myles Horton in the United States to “use
their own experiences as a text for analyzing the problems that their communities face”); id.
at 435 n.85 (“These popular education techniques, rooted in the teaching of literacy, bring
together groups of poor and often illiterate people to reflect on their lives, analyze the causes
of the problems that they face, and develop group strategies to combat those problems.”); id.
at 435–36 (contrasting this approach, “set up to provide group opportunities for reflection that
will lead to analysis and action,” with the traditional legal and lawyer-led approach that would
have been inadequate to tackle the workers’ needs).
335. See id. at 435.
336. See Widener, supra note 192, at 49 (stating that the Think Tank sought to “make sense
of the prison experience,” “what they were doing there,” and “the purpose of prison”);
Telephone Interview with Katherine Mattes, supra note 98 (noting that Duncan had access to
information that the outside did not because he was “embedded” within the prison diaspora);
Email from G. Ben Cohen, supra note 139 (stating that Duncan brought the “10-6ers” to the
attention of Louisiana prosecutors who were unaware of this longest-serving and forgotten
contingent).

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imaginations inside prison walls—particularly after having made tremendous
use of the groundbreaking ideas birthed within—enables the prison to
continue to lock us into a carceral mindset even as we claim to be moving in
the direction of a decarceral one.
On that point, a solidaristic generative process can inspire ideas in people
who are confined and people who are free. Aspirational moves on the inside
have shaped scholarly trajectory on the outside,337 elevated judicial, political,
and public consciousness, and awakened new ideas to reckon with our
carceral state. An inside-outside process of co-ideation can produce different
sources of data and methods of collection and measurement,338 different
ideas about law, community health, and root causes of crime, and new paths
to decarceration that can inform judges, prosecutors, lawmakers, traditional
experts, and advocates, as well as rich perspectives on decarceral strategies
beyond the limited ideas conceived in law’s perch.339 Collective envisioning
also holds the potential to transform how people in prison think about their
own power to make change.340
The inside moves described in Part I oriented a wide range of actors toward
new ways to think and speak about law, safety, health, and society. These
moves were not lawyer-led or lawyer-initiated. But it was through collective
conversation and investment of time, resources, and allyship that the visions
shaped and continue to shape long-term and near-term transformation. Given
the isolation of carceral constraint, a collective process is essential.
Collective imagining enables different understandings to become more
visible, creating the potential to build more transformative possibilities. The
next part identifies a gap, and thus an opening, in legal scholarship to pursue
this collective challenge.
B. Prison’s Antidemocratic Paradox
Looking to the inside to envision decarceral futures recalls Professor Mari
Matsuda’s famous call to legal scholars to “look to the bottom” as “a new
epistemological source.”341 Matsuda encouraged critical legal scholars to
337. Video Interview with Robert Fullilove, Prof. of Clinical Sociomedical Scis., Columbia
Univ. (Nov. 5, 2021) (stating that his scholarly career was based on the research and wisdom
produced by the Think Tank); CTR. FOR NULEADERSHIP ON URB. SOLS., supra note 243, at 10
(same).
338. Cf. Simonson, supra note 236, at 853 (arguing that directly-impacted people “might
also seek data and information from less traditional sources”); McLeod, supra note 14, at
657–58 (arguing that even limited initiatives can serve as an opening toward more
transformative ends).
339. Cf. Monica C. Bell, Safety, Friendship, and Dreams, 54 HARV. C.R.-C.L. L. REV. 703,
710 (2019) (“The legal scholar’s impulse is to say: Enough description. We know the
problem. How are we going to fix it? But ‘we’ do not have a rich understanding of ‘the
problem.’”).
340. Cf. Guinier & Torres, supra note 45, at 2786–87, 2790 (discussing the lawmaking
potential of social movements); Gordon, supra note 334, at 410, 445–47 (describing the
process of creating a theory of social change alongside immigrant workers, whose “daily
reality” provided a text to develop a “long-term process of analysis leading to action”).
341. Matsuda, supra note 45, at 324–26, 346–47 (“Looking to the bottom—adopting the
perspective of those who have seen and felt the falsity of the liberal promise—can assist

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listen to those with the least advantage and study and support the organized
struggles and campaigns of people of color who have experienced
subordination.342 Matsuda argued that adopting the perspective of “grass
roots philosophers who are uniquely able to relate theory to the concrete
experience of oppression,”343 or what Antonio Gramsci called “organic
intellectuals,”344 can lead to concepts and theories about law that are
“radically different from those generated at the top.”345
In the over three decades since Matsuda’s seminal article, legal scholars
have echoed this demand, recognizing that bottom-up visions and
interventions have made a profound impact on the criminal legal system,
generate new understandings about the law, present alternate
conceptualizations of the problems to be addressed, and offer a more
expansive, grounded, and transformative framework for change.346
Articulating the concept of “movement law,” Professors Amna Akbar,
Sameer Ashar, and Jocelyn Simonson have encouraged scholars to turn
beyond studying social movement critiques to co-creating ideas and
scholarship with grassroots struggles.347
critical scholars in the task of fathoming the phenomenology of law and defining the elements
of justice.”). But cf. Devon W. Carbado, Race to the Bottom, 49 UCLA L. REV. 1283, 1312
(2002) (challenging “the bottom” as “insufficiently theorized” by critical race theorists).
342. Matsuda, supra note 45, at 324–25, 349 (calling on scholars to look to “the actual
experience, history, culture, and intellectual tradition of people of color in America”).
343. Id.
344. SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI, supra note 32, at 5.
345. Matsuda, supra note 45, at 326, 362 (discussing reparations as a “legal concept
generated from the bottom”); Akbar, Ashar & Simonson, supra note 45, at 839 (“For decades
now, Matsuda has distilled brilliance born within collective struggle.”).
346. See, e.g., Akbar, supra note 45, at 476 (“Radical social movements are important not
simply for what changes they effectuate in law . . . . They articulate harms so pervasive,
structural, or intersectional as to make them difficult for legal institutions to recognize let
alone redress. They offer alternative frameworks for the way forward . . . . Their visions for
social change, the way they point to the limits of what formal legal channels can handle or
hear, can be profound.”); id. at 425 (discussing the importance of “invest[ing] in the[ ] creative
potential [of social movements] to transform the state”); Akbar, supra note 236, at 1837–46
(explaining why legal scholars should take abolitionist organizing seriously); Simonson, supra
note 38, at 266–70, 287–97 (describing bottom-up forms of communal contestation and their
effect on everyday criminal adjudication); Simonson, supra note 50, at 1613, 1623 (calling for
bottom-up forms of agonistic participation in criminal justice policymaking); McLeod, supra
note 14, at 705 (arguing that the “ambitious visions of decarceration [from movement
actors] . . . offer a set of transformative aspirational ideas which might orient current reform
efforts, rescuing more moderate criminal law reform from its weakest and most disappointing
possible futures”); see also Guinier, supra note 52, at 47 (describing the “often undervalued[]
power of social movements or mobilized constituencies to make, interpret, and change law”);
JENNIFER GORDON, SUBURBAN SWEATSHOPS: THE FIGHT FOR IMMIGRANT RIGHTS 237–80
(2005) (discussing the change-making capacity of immigrant workers, whom Gordon
describes as “non-citizen citizens”).
347. See Akbar, Ashar & Simonson, supra note 45, at 844–45, 881 (calling on legal
scholars to co-generate ideas alongside grassroots struggles seeking to transform the status
quo); Akbar, supra note 45, at 479 (calling on legal scholars to “imagine collaboratively” with
social movements); see also Janet Moore, Marla Sandys & Raj Jayadev, Make Them Hear
You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 ALB. L. REV.
1281, 1283–88 (2015) (discussing the power of participatory defense as a new model for
challenging mass incarceration in an article coauthored by a movement leader who developed

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This work is inspiring, transformative, and critical. I envision the idea of
“looking to the inside” as sharing theoretical and solidaristic space with
“looking to the bottom.” The inside is, in many ways, bottom adjacent:
people in prison are typically removed from communities on the bottom.
I note, however, two important distinctions in looking to the inside in the
manner proposed in this Article. I raise these distinctions not to distance both
moves, which I see as complementary, but to argue why the moves, which
share many parallel aims, should nonetheless be theorized separately.
First, when legal scholars study, engage, and bring critical perspectives
from “the bottom” into scholarly discourse, the focus is mainly on
constituencies in the body politic, that is, constituencies that are “free.”348
There are exceptions. Simonson describes how people in prison engage in
bottom-up interventions in the form of hunger and labor strikes.349 Simonson
argues that this collective contestation has influenced changes in prison
conditions, destabilized the prison’s complete control over those confined,
and awakened public consciousness on degrading conditions of confinement,
forced labor, and mass incarceration.350 I propose something distinct:
looking to people who are unfree as partners in decarceration. The
ideological work of criminal law and the restraint on communication
accomplished by the prison cannot be overstated here; both, of course,
heighten the challenges associated with exploring meaningful partnerships.
As the inside moves in Part I demonstrate, however, the circumstances in
prison—and the contemplation of freedom—can produce reflections,
analyses, and strategies that enrich the outside in distinct ways and that, by
design or in effect, direct toward decarceral ends.
the participatory defense framework); Simonson, supra note 236, at 830–48 (supporting the
movement demand to shift governance and policymaking power downward to populations
most harmed by mass incarceration and everyday policing).
348. See supra notes 344–46. I use the term “free” in the narrow sense of physical liberty
from carceral punishment. Conditions on the bottom deny marginalized communities freedom
from social, political, racial, and economic inequality, freedom from life-threatening harm,
freedom of personhood, and freedom from state supervision. See Matsuda, supra note 45, at
389–90. Among those on the bottom are people whose liberty was at one point restricted. Id.
at 363, 367–68 (discussing movement by Japanese-Americans to seek reparations for
internment during World War II). It is also important to note that some of the social
movements whose bottom-up visions have informed legal scholarship collaborate with people
who are incarcerated. See, e.g., Akbar, supra note 45, at 436 (discussing Critical Resistance,
a grassroots prison abolitionist organization and co-drafter of the policy platform of the
Movement for Black Lives); Akbar, Ashar & Simonson, supra note 45, at 851 n.113
(describing Black & Pink, an abolitionist organization that is rooted in working with queer
and transgender people who are incarcerated).
349. Simonson, supra note 50, at 1619–20; see also Lobel, supra note 50, at 88 (describing
how the Pelican Bay class action that ended indefinite solitary confinement in California
prisons “resulted from, and interacted with, a prisoners’ movement that conducted three mass
hunger strikes [that] garnered national and international attention”).
350. Simonson, supra note 50, at 1619–20 (discussing the influence that collective
resistance inside prison walls, through hunger and labor strikes, had in catalyzing reforms to
solitary confinement practices in California prisons); see also Lobel, supra note 50, at 92, 114,
157 (describing how people in prison, in partnership with lawyers, participated in directing
the Pelican Bay class action and how that active, collaborative, nonhierarchical framework
was crucial to the success of the litigation).

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This brings me to a second distinction, perhaps more suitably described as
a contradiction, in looking to the inside. Akbar, Simonson, and other scholars
who study and work alongside grassroots movements rooted in a decarceral
agenda call on scholars to engage perspectives from the bottom to create
alternative frameworks for change and to “democratize” criminal law.351
Although the concept I propose—looking to the inside to discover, develop,
and co-envision decarceral moves—is grounded in the goal of decarceration,
there is a democratic tension in looking to the inside. In every practical sense,
people in American prisons have virtually no democratic existence. Their
disappearance is not limited to formal channels of voting352 or jury service.
The vast majority are denied, by law or in effect, any meaningful
participation in civic society or community life. Shutting out their visions
from formal and informal channels of popular participation is American
democracy in action. This reveals a paradox. Preventing us from seeing
people in prison as potential agents of decarceral change is, in part, the work
of American democracy. Yet, in refusing to accept criminal law’s
antidemocratic function,353 some people in prison have “convert[ed]” their
351. See, e.g., Akbar, Ashar & Simonson, supra note 45, at 827 (“We are interested in
social movements for their potential to democratize our politics and embolden our visions for
change.”); Akbar, supra note 45, at 426 (describing the Movement for Black Lives’s vision
for reform as “rooted in a decarceral agenda rooted in an abolitionist imagination”); Simonson,
supra note 38, at 289, 299 (revealing the value of contestatory participation over consensusbased methods of gathering popular input, and arguing that opening up both sides of a criminal
case to communal contestation can facilitate decarceral discourse); Simonson, supra note 236,
at 845 (“The task of democratizing reform, then, is to better enable countervailing interests
and community groups to assert their views, hold governments and other actors to account,
and claim a share of governing power.”); Jonathan Simon, Racing Abnormality, Normalizing
Race: The Origins of America’s Peculiar Carceral State and Its Prospects for Democratic
Transformation Today, 111 NW. U. L. REV. 1625, 1650 (2017) (“Reconstructing the carceral
state will require a democratic process that involves impacted communities first and foremost
in re-norming the abnormality against which the carceral state operates.”); Simonson, supra
note 50, at 1612 (arguing that bottom-up modes of agonistic participation in criminal justice
are “crucial for democratic criminal justice”).
352. See Hansi Lo Wang, Most Prisoners Can’t Vote, But They’re Still Counted in Voting
Districts, NPR (Sept. 26, 2021, 7:01 AM), https://www.npr.org/2021/09/22/1039643346/
redistricting-prison-gerrymandering-definition-census-congressional-legislative
[https://perma.cc/PVW6-QN7A]; Vaidya Gullapalli, Another Reason to End Prison
Gerrymandering: To Identify and Invest in Neighborhoods Most Affected by Incarceration,
THE APPEAL (Feb. 28, 2020), https://theappeal.org/another-reason-to-end-prisongerrymandering-to-identify-and-invest-in-neighborhoods-most-affected-by-incarceration/
[https://perma.cc/LC5P-W6TX] (discussing prison gerrymandering, “the practice of counting
people where they are incarcerated rather than where they lived prior to incarceration,” which
swells the political power of largely white, rural prison districts and diminishes the voting
power of the largely Black and Brown districts from which people in prison are
disproportionately drawn); see also DAVIS, supra note 33, at 83–84, 101–03 (describing the
risks of reducing democracy to the right to vote).
353. See Simonson, supra note 50, at 1610 (describing three levels of the antidemocratic
nature of the criminal legal system); Akbar, supra note 236, at 1805 (describing “the carceral
state’s central role in denying primarily Black, [B]rown, and poor people participation in
formal democratic channels and civic and community life—let alone determining the
conditions of their lives and engagement with their communities”); Dorothy E. Roberts,
Constructing a Criminal Justice System Free of Racial Bias: An Abolitionist Framework, 39
COLUM. HUM. RTS. L. REV. 261, 266, 279–80 (2007); Roberts, supra note 44, at 1604–05

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oppression and subjugation into “theor[ies] for future action”354 that have
had transformative effects on law, political discourse, and society. Although
the carceral state has shut down their civic participation, their individual and
collective imagining has advanced democratic ideals. Excluded from
democracy by American democracy, people in prison have educated
democratic leaders and the public about the harms of the systems they have
built, pushed them to think about how to be less punitive and less violent,
and enabled our democracy to progress. Collective imagining with people
on the inside thus not only unsettles criminal law’s antidemocratic center, but
also accomplishes a new vision of democracy.355 It unearths latent
possibilities for political, social, and economic liberation, while revealing
that the agency of people exiled from American democracy is, and holds
promise to remain, democracy-enhancing.
III. REVISITING EXPERTISE
It may be tempting to assume that this Article argues that people in prison
have a certain kind of expertise that can facilitate decarceration. Although
their capacity and knowledge might warrant the expert label, it is important
to examine whether the vocabulary of expertise best captures the decarceral
moves in prison. I raise this threshold question for two reasons: First, in a
technocratic legal culture, an impulse emerges to retrofit different forms of
knowledge into the mantle of expertise.356 Second, if the language of
expertise is not the appropriate framework for understanding the decarceral
work described in this Article—and I conclude that it is not—does that carry
implications for the place of expertise in the project of decarceration?
I situate this question within current debates on the value of expertise in
criminal policymaking.
In recent years, a number of legal scholars have renewed calls to create
agencies led by social scientists and policy “experts” to guide decisions on
public safety and crime reduction based on empirical data.357 This approach
(arguing that dismantling criminal law’s antidemocratic function requires an abolitionist
movement); Janet Moore, The Antidemocratic Sixth Amendment, 91 WASH. L. REV. 1705,
1715 (2016) (arguing that denying poor people the right to choose counsel blocks pressure
from marginalized communities to strengthen the right to counsel, concentrates unchecked
judicial power, and undermines the legitimacy of the criminal legal system).
354. Gordon, supra note 334, at 446–47, 450 (describing, in a different context, the struggle
for social change alongside immigrant workers and the process of developing strategies that
“convert [their] daily experiences into a theory for future action”); see also Burton, supra note
1, at 154 (asserting that the Think Tank members presented themselves “as part of a legitimate
political constituency”).
355. Cf. DAVIS, supra note 33, at 47, 103 (urging us to think about “different versions of
democracy” and “different criteria for democracy,” including “democracies in which those
social problems that have enabled the emergence of the prison-industrial-complex will be, if
not completely solved, at least encountered and acknowledged”).
356. Cf. Pierre Schlag, Expertopia—The Rule of Expertise, at 87 (June 2, 2022)
(unpublished manuscript) (on file with author) (“[E]xpertise has but one move, or one
tendency: to reduce everything to the order of expert knowledge.”).
357. See, e.g., BARKOW, supra note 18, at 165–85 (calling for “expert bodies that use
empirical data and studies to guide their decisions about criminal justice policy”); Rappaport,

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is grounded in the idea that academics with elite educational credentials who
regularly study these issues may be better able to resist “penal populism,” the
tendency to set criminal policy by catering to ill-informed, irrational voters
who are driven by emotions, fear, and punitive impulses.358 Many scholars
have challenged the idea that engaging these experts will lead to more
“rational” decisions by deconstructing the ways in which policy analysis and
the scientific method—often portrayed as neutral and objective tools—
necessarily involve normative and political choices at every inflection
point.359 As Professor K. Sabeel Rahman argues, “[t]o overlook the political
and moral dimensions of expert judgment—or to rely solely on expert rather
than collective decision-making—is to displace the potential and
responsibility for public judgments about the most important questions of
how to structure our politics, society, and economy.”360
A small but growing number of law scholars have promoted a new vision
of expertise in policymaking that embraces a “different kind of expert”:
people in racially and economically marginalized communities who speak
supra note 24, at 810–12 (arguing for reform that “emphasizes an evidence-based approach to
criminal justice problem-solving focused on achieving outcomes consistent with democratic
values”).
358. See BARKOW, supra note 18, at 1–10 (discussing the importance of engaging experts
“to make sure we are making the right calls to maximize public safety and are spending our
limited resources most effectively”).
359. See, e.g., Bernard Harcourt, The Systems Fallacy: A Genealogy and Critique of Public
Policy and Cost-Benefit Analysis, 47 J. LEGAL STUD. 419, 420–21 (2018) (arguing that “the
very act of conceptualizing and defining a metaphorical system, and the accompanying
choice-of-scope decisions, constitute inherently normative decisions that are value laden and
political in nature”); Emily Hammond Meazell, Super Deference, the Science Obsession, and
Judicial Review as Translation of Agency Science, 109 MICH. L. REV. 733, 744 (2011) (“Legal
institutions and the citizenry at large suffer from a science obsession, assuming that if only we
had answers from science, we would know what regulatory decisions are ‘correct.’”); Jedediah
Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a
Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129
YALE L.J. 1784, 1831 (2020) (describing “purportedly neutral and technocratic visions for
rationalizing governance” as “neither neutral nor, in practice, rationalizing”); Nikolas Rose &
Peter Miller, Political Power Beyond the State: Problematics of Government, 43 BRIT. J.
SOCIO. 173, 187 (1992) (describing a popular view of the expert as “embodying neutrality”
and “operating according to an ethical code ‘beyond good and evil’”); Evan Selinger & Robert
P. Crease, Introduction to THE PHILOSOPHY OF EXPERTISE 1, 3 (Evan Selinger & Robert P.
Crease eds., 2006) (“[T]he authority so conferred on experts . . . risks elitism, ideology, and
partisanship sneaking in under the guise of value-neutral expertise”); Alonso & Starr, supra
note 240, at 3 (arguing that deciding what to measure and how to measure it are political
choices); Kimani Paul-Emile, Foreword: Critical Race Theory and Empirical Methods
Conference, 83 FORDHAM L. REV. 2953, 2956 (2015) (“[T]he social sciences’ implicit claims
of ‘objectivity’ and embrace of ‘neutrality’ in knowledge production stand in contrast to
CRT’s contention that these claims mask hierarchies of power that often cleave along racial
lines.”); K. SABEEL RAHMAN, DEMOCRACY AGAINST DOMINATION 100 (2017) (arguing that
expertise “can offer insight, but not resolution”).
360. RAHMAN, supra note 359, at 100; see also id. at 99 (“Experts are not neutral
technocrats, but political agents who engage in moral and political judgment, and whose
conceptualizations and arguments help shape and create social world.”); Harcourt, supra note
359, at 421 (“When th[e] choices are made by technocrats, the methods no longer merely
implement political decisions. They no longer serve democratic politics. Instead, the methods
reshape our politics.”).

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from experience about the harms of policing, criminalization, and
incarceration.361 Simonson argues that opening the concept of expertise in
this way brings in missing knowledge and engages deeper critiques that can
destabilize the status quo.362 Shifting and expanding the definition of
expertise also shifts power to define and measure safety and security.363 This
radical understanding of expertise recognizes the wisdom of people directly
impacted by the system who are “consistently excluded from most forms of
public participation in the criminal legal system.”364
In their competing, yet somewhat complementary, visions of good
governance, both camps—described by scholars as “bureaucratizers” and
“democratizers”—lay a claim to expertise.365 The implications for
decarceration on each side are far less clear. Although this Article is not
centrally concerned with policymaking broadly conceived, current debates in
criminal policy about turning to experts, and which experts to turn to, are
relevant to decarceration. Professor Benjamin Levin argues that the
traditional expert’s footprint is embedded in the carceral state.366 The
361. Simonson, supra note 236, at 850–51 (“[They] do not just become important subjects
of policing governance; they become experts themselves.”); see also Akbar, supra note 45, at
425 (arguing that the Movement for Black Lives “is about a vision to imagine expertise very
differently than law scholarship”); Monica C. Bell, The Community in Criminal Justice:
Subordination, Consumption, Resistance, and Transformation, 16 DU BOIS REV. 197, 208
(2019) (“[A]s subordinates of the criminal justice system, members of marginalized
communities are especially knowledgeable about systemic injustice and thus especially
capable of and responsible for rectifying it.”); Bell, supra note 339, at 712.
362. Simonson, supra note 236, at 853–54.
363. Id. at 851, 853–55 (arguing that these new experts “might also seek data and
information from less traditional sources”); Okidegbe, supra note 45, at 782–83 (calling for
communal expertise in the production of pretrial risk-assessment instruments); see also
Collins, supra note 213 (manuscript at 37, 40) (arguing that the evidence-based paradigm—
the leading model for criminal law reform—is undemocratic because it “narrowly limit[s]
what counts as evidence” and “disqualifies wide swaths of knowledge as a basis for reform or
intervention, including observational, community, and experience-based knowledge”).
364. Simonson, supra note 236, at 850–53; cf. Levin, supra note 25, at 2784, 2833–35
(underscoring the potential of this deconstructive move but questioning whether “expertise”
is the best way of describing the move to shift power to marginalized communities, and
identifying the risks of reifying exclusion and power imbalances in adopting a vocabulary of
“expertise”).
365. See Joshua Kleinfeld, Manifesto of Democratic Criminal Justice, 111 NW. U. L. REV.
1367, 1399 (2017) (separating scholars into “democratizers” and “bureaucratic
professionalizers”); Levin, supra note 25, at 2782 (describing both sides as adopting a “shared
appeal to the language of experts and expertise”).
366. Levin, supra note 25, at 2811 (arguing that vocational and educational experts “have
been key players in constructing the carceral state”); id. at 2810 n.186 (arguing that “framing
the problems with the criminal system as its irrationality or emotion-driven dimensions
understates the ways in which rationality and what purports to be cold neutrality have actually
operated as significant drivers of mass incarceration and the new penology”); id. at 2817
(“Some of the most maligned theories and practices of criminal law’s administration over the
last half century haven’t been the product of tough-on-crime voters or politicians; they have
been crafted by the sorts of experts frequently offered as potential technocratic saviors.”); id.
at 2798 (arguing that the turn to education-based expertise is in many ways a response to the
“resounding failure” of vocational expertise, including the “false claims to expertise” by
police, corrections, crime labs, and other system actors who have contributed to mass
incarceration); id. at 2818 (stating that “the expert-driven universe of criminal justice policy

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destabilizing move to shift expertise to impacted communities traditionally
excluded from criminal policymaking is, for many scholars, rooted in a
decarceral agenda,367 but some scholars have surfaced a tension between a
more equitable process for popular participation and the goals of
decarceration.368 Siloed from both camps are people in prison, who are
democratically exiled and have virtually no traditional credentials, but some
of whom have made important, difficult decarceral moves.
If decarceration is a non-neutral, value-laden choice, how can purportedly
“neutral” experts lead us to it? More to the point, if deferring to the
professional judgment of “neutral” experts has expanded the carceral state, it
can also undermine decarceration. And if opening the definition of expertise,
on its own, might not serve decarceral ends, another question arises: is
“expertise,” traditional or inverted, the pathway to decarceration?
Reflexively turning to expertise to resolve complex social problems masks a
broader problem: the frame itself.
The “draw of expertise” is premised on a longstanding intuition that
expertise is an inherent virtue.369 Professor Anna Lvovsky disrupts this
“virtue-based vision of expertise.”370 Complicating the familiar association
reflected an ‘emphasis on . . . formal rationality’” and a logic of social control (alteration in
original) (quoting Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the
Emerging Strategy of Corrections and Its Implications, 30 CRIMINOLOGY 449, 454 (1992)
(describing a fundamental shift in the dominant ideology of criminal punishment in the 1970s
and 1980s toward the management of marginalized groups))).
367. See, e.g., Akbar, supra note 45, at 426 (describing the Movement for Black Lives’s
vision for reform as “rooted in a decarceral agenda rooted in an abolitionist imagination”);
Simonson, supra note 38, at 303–06 (suggesting that opening up criminal adjudication to more
popular input on behalf of the accused has the potential to lead toward large-scale
decarceration, but stating that drawing a direct line between the two “requires more study”).
368. See Rappaport, supra note 24, at 719–20, 759 nn.276–78, 760 nn.279–82, 808–09
(predicting that popular participation will not dismantle the carceral state and collecting
studies showing that laypeople can be punitive, in contrast to the claim that democratizing
criminal adjudication will lead to leniency); Trevor George Gardner, By Any Means: A
Philosophical Frame for Rulemaking Reform in Criminal Law, 130 YALE L.J. F. 798, 805
(2021) (“It would be a categorical mistake to equate the pursuit of an equitable process of
crime policymaking—even as it relates to race-class subordinated communities—with the
pursuit of equitable crime policy.”); Levin, supra note 25, at 2828 (questioning whether
shifting power will serve decarceral ends); cf. Simonson, supra note 236, at 789 (recognizing
that communities are not monolithic, and power-shifting on its own does not guarantee any
particular outcome).
369. See Anna Lvovsky, Rethinking Police Expertise, 131 YALE L.J. 475, 483, 486, 493,
495, 554 (2021) (arguing that in legal culture “there persists some notion that . . . assuming a
particular function is worth doing, the way to get it done well is by entrusting it to those with
the greatest skill and insight in the field”); STEVEN BRINT, IN AN AGE OF EXPERTS: THE
CHANGING ROLE OF PROFESSIONALS IN POLITICS AND PUBLIC LIFE 8 (1994) (“[E]xpert
knowledge has enjoyed a virtually unquestioned legitimacy in American culture.”).
Underlying this draw is a persisting sense that expert decision-making is better
decision-making. See, e.g., BARKOW, supra note 18, at 168 (“[W]hen it comes to public safety
and maximizing limited resources, there is such a thing as expertise that can improve
decision-making.”). But see Lvovsky, supra, at 493–94 (noting that critics “assail th[is]
presumption” and “deride the notion of the ‘objective’ expert as an anti-democratic myth, an
attempt to sell the people a dictatorship under the guise of technocratic neutrality”).
370. Lvovsky, supra note 369, at 481, 555, 559 (describing the virtuous view as
“imagin[ing] expertise as a presumptive institutional good”).

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between expertise and deference in the context of policing, Lvovsky exposes
a counterintuitive phenomenon: case law where conceded claims of
expertise do not insulate police conduct from judicial scrutiny but drive
adverse judgments against the state.371 Across a range of disputes about
police misconduct, Lvovsky demonstrates that it was not poorly trained or
overzealous officers who fueled judicial concerns about legality, but
well-trained, highly experienced, “sophisticated” officers who “masterfully”
performed their designated tasks.372 As Lvovsky argues, “[o]ur moral
intuitions surrounding expertise as a virtue have blinded us to the extent to
which expertise is, essentially, just another tool of the police.”373 The courts’
embrace of concededly expert policing as “a source of active mistrust,”374
Lvovsky contends, “invites us to look with renewed skepticism” at a range
of disciplines grounded on deference to professional judgment and “upend[s]
our intuitions about the value of expertise itself.”375
The “deceptive allure” of expertise that wrests uncritical judicial deference
across a range of doctrines376 also infiltrates our processes for social change.
In these final pages, I argue that the aspirational work inside prison signals
that it is essential to move beyond expertise to decarcerate. I reach this
conclusion by considering the limits of a framework of expertise for
understanding inside decarceral moves. I then propose a different way of
thinking about inside decarceral work.
To be clear, I do not mean to oppose the role or value of “experts” who
hold traditional academic credentials to advance decarceration. Indeed,
371. Id. at 480, 497–98, 555, 572. The presumption that police have any expertise to speak
of is hotly contested. Id. at 479; see also Anna Lvovsky, The Judicial Presumption of Police
Expertise, 130 HARV. L. REV. 1995, 1997 (2017) (describing the history of the “judicial
presumption of police expertise: the notion that trained, experienced officers develop insight
into crime sufficiently rarefied and reliable to justify deference from courts”).
372. Lvovsky, supra note 369, at 480, 483, 497–509, 515–34, 563, 567 (providing case
studies of police using their training and skills in strategic deception and manipulation); see
also id. at 550 (arguing that these “displays of professional skill” feed judicial qualms “that
there exist certain effective—even skilled—forms of investigation that the police should not
engage in to begin with, much less become ‘expert’ at”).
373. Id. at 554; see also id. at 481, 485 (arguing that judges in these cases treat expertise
not as a de facto virtue but as a tool that, like other policing technologies, expands police
power and sharpens judicial scrutiny). Adopting this granular approach, Lvovsky argues, has
the potential to “recast the value of expertise” in areas of criminal procedure most traditionally
associated with deference—assessments of reasonable suspicion and probable cause—where
an officer’s specialized training and rarefied eye for danger operates as a claim to authority.
Id. at 484.
374. Id. at 559–61 (arguing that courts concede that “the acknowledged expertise of public
actors can coexist with and even exacerbate the risk of legal infirmities in how they perform
their tasks, without being any less ‘expert’ for that fact”).
375. Id. at 534, 558–61 (“The courts’ cynical confrontations with police expertise
demonstrate the importance of wresting free of those technocratic biases—the extent to which
our understanding of judicial reasoning still stands to learn from the richer sociologies of
knowledge and power produced in other fields.”); see also Susan Stefan, Leaving Civil Rights
to the “Experts”: From Deference to Abdication Under the Professional Judgment Standard,
102 YALE L.J. 639, 700–15 (1992) (discussing a series of underanalyzed grants of deference
to experts).
376. Lvovsky, supra note 369, at 482, 555.

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imaginations formulated inside prison have come to fruition in conversation
and collaboration with those who bear traditional markers of expertise, and
the project of decarceration needs many hands on deck. Nor do I mean to
suggest abandoning radical movement claims over expertise—
deconstructing and shifting expertise is destabilizing, inspiring, and
essential.377 Rather, I seek to question the instinctive pull toward “expertise”
to understand enlightened knowledge and highlight the limits of the frame
for progressing toward decarceration. I consider both moves—reimagining
expertise and contesting the frame altogether—as complementary and
denaturalizing. Far from debating in these final pages who has the expertise
to reduce our prison population—a question that presupposes a coherent
theory as to the capacity of expertise to reduce prison populations—I surface
three limits to adopting the frame of expertise in the ambitious project of
decarceration. My caution is premised on the idea that the mantle of
expertise can corrupt thought.
First, a stay-in-your-lane overtone hovers over expert claims. The expert’s
value is typically cabined to insights in the domain in which the expert has
expertise.378 Exalting expertise inevitably invites the following question:
what “expertise” would the ordinary person in prison possibly have?
Conditions of confinement? Prison-as-experienced? The very language,
accompanied by the ideological work of carceral punishment, invites
skepticism that people in prison might have acumen, value, or knowledge
beyond the four corners of the cage. The implications of this skepticism are
pronounced in a nation that incarcerates so many people. Sophisticated
levels of knowledge on the inside extend far beyond prison walls to law,
politics, capitalism, public health, neighborhood priorities, violence
reduction, peer relations, and much more. Professor Jules Lobel unveils this
dynamic in the context of attorney-client collaborations, explaining that the
Pelican Bay class action challenging California’s use of prolonged solitary
confinement resulted from a collective, nonhierarchical partnership with
people held in prison whose active role in directing that litigation and “wealth
of knowledge . . . . [Far beyond] the prison regime” was critical to the
lawsuit’s successful outcome.379 All told, people in prison have, in a myriad
of ways, shaped legal and social change. Their engagement has awakened
377. Simonson, supra note 236, at 851; Levin, supra note 25, at 2784 (arguing that
expanding the meaning of expertise “highlights the politicized project of selecting experts in
the first place and denaturalizes experts’ privileged status”).
378. See, e.g., Frederick Schauer & Barbara A. Spellman, Analogy, Expertise, and
Experience, 84 U. CHI. L. REV. 249, 262 (2017) (“[T]he expertise of experts tends to be limited
to their domain of detailed knowledge.”).
379. Lobel, supra note 50, at 92, 150, 153–54, 157, 159 (stating that the Pelican Bay hunger
strikers “offer[ed] the[ir] lawyers such a wealth of knowledge” beyond the prison regime,
including on strategy central to the class action, and noting that some had mastered the law,
others were widely read in philosophy, neuroscience, politics, and Black consciousness
thought, and others had closely analyzed social relations in a carceral setting); id. at 159
(“Imagining a more egalitarian society requires developing nonhegemonic relationships
between professionals and the people with whom they work, based in part on the recognition
of different forms of intelligence and expertise.”).

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public consciousness, shaped the evolution of constitutional meaning, and
deepened popular and policy discourse. “[T]he law’s infatuation with
expertise”380 contributes to why we do not think of people in prison as agents
of change in progressing toward a decarceral future.
Second, the very notion of expertise suggests that there is some “correct”
response to complex social problems and that experts are the ones to “solve”
them.381 This concept ties into the aura that experts are a source of infallible
truth.382 However, many concepts and practices developed by “infallible”
experts—whose expertise has expanded the power of the carceral state—
have been widely discredited.383 Meanwhile, some “fallible” people in

380. Lvovsky, supra note 369, at 492.
381. See Wendy E. Wagner, A Place for Agency Expertise: Reconciling Agency Expertise
with Presidential Power, 115 COLUM. L. REV. 2019, 2024 (2015) (“This important role of
agency-as-expert coincided with the inherently optimistic belief that there were ‘objectively
correct solution[s] to the country’s problems.’”); Meazell, supra note 359, at 744 (“Legal
institutions and the citizenry at large suffer from a science obsession, assuming that if only we
had answers from science, we would know what regulatory decisions are ‘correct.’”).
382. See RAPHAEL SASSOWER, KNOWLEDGE WITHOUT EXPERTISE: ON THE STATUS OF
SCIENTISTS 101 (1993) (noting the common view of “expertise as a privileged, divine-like
attribute”). A halo of “mystic infallibility” surrounds the expert label. United States v.
Addison, 498 F.2d 741, 744 (D.C. Cir. 1974) (“voiceprint” expert); see also United States v.
Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973) (eyewitness expert); Lvovsky, supra note 369,
at 487–88 (noting that prosecutors invoke police credentials to “bathe their observations in the
aura of authority”). This halo creates a substantial risk of distracting fact finders—both
technicist-minded judges and lay jurors—from rigorous scrutiny over claims of expertise. Id.
at 486, 536, 559 (suggesting that the “mysticism of police expertise” may explain judicial
warnings against “second guessing” police decisions); State v. Young, 2009-1177
(La. 4/5/10); 35 So. 3d 1042, 1050 (noting that “merely being labeled” a specialist in
eyewitness identification has the broad potential to mislead the jury); Peter J. Neufeld &
Neville Colman, When Science Takes the Witness Stand, SCI. AM., May 1990, at 46, 46, 48
(“[T]he esoteric nature of an expert’s opinions, together with the jargon and the expert’s
scholarly credentials, may cast an aura of infallibility over his or her testimony.”).
383. See, e.g., Katherine Beckett & Megan Ming Francis, The Origins of Mass
Incarceration: The Racial Politics of Crime and Punishment in the Post-Civil Rights Era, 16
ANN. REV. L. & SOC. SCI. 433, 435 (2020); HARCOURT, supra note 236, at 163 (describing how
broken windows policing turns entire classes of people into “subjects that need to be
controlled”); James Forman Jr. & Kayla Vinson, Opinion, The Superpredator Myth Did a Lot
of Damage. Courts Are Beginning to See the Light., N.Y. TIMES (Apr. 20, 2022),
https://www.nytimes.com/2022/04/20/opinion/sunday/prison-sentencing-parole-justice.html
[https://perma.cc/MXN5-BJD4] (describing how the superpredator theory, the brainchild of a
political scientist and since disproven, drove excessive sentences and laws that allowed young
people to be tried as adults); Spencer S. Hsu, FBI Admits Flaws in Hair Analysis over Decades,
WASH. POST (Apr. 18, 2015), https://www.washingtonpost.com/local/crime/fbi-overstatedforensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e51511e4-b510-962fcfabc310_story.html [https://perma.cc/VR2D-FH2T] (reporting that nearly
every examiner in an elite FBI forensic unit gave flawed testimony in over 95 percent of trials
in which they offered evidence against criminal defendants over more than a two-decade
period, and that hundreds of state and local crime lab analysts were FBI-trained); NAT’L RSCH.
COUNCIL, NAT’L ACAD. OF SCIS., STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES:
A PATH FORWARD 39, 42–43 (2009) (calling into serious question the scientific basis and
reliability of many forensic methods and techniques commonly used in criminal prosecutions);
Keramet Reiter, Supermax Administration and the Eighth Amendment: Deference,
Discretion, and Double Bunking, 1986–2010, 5 UC IRVINE L. REV. 89, 103, 135 (2015)
(describing judicial deference to expertise of officials in supermax prisons); Lvovsky, supra

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prison have produced pioneering decarceral-oriented change. If expertise
operates as a gateway to deference and authority—privileges that people in
prison have rarely, if ever, enjoyed384—sublimating people in prison to the
perch of expertise also risks colluding with the framework’s “flawless”
ideology.
Third, expertise finds its purchase in a hierarchy of knowledge.385 In his
seminal article, economist and philosopher F.A. Hayek argued that
knowledge is not concentrated in a central authority but is dispersed among
individuals throughout society.386 He calls this “local knowledge.”387
Indeed, it was, in part, local knowledge that produced the decarceral ideas
described in these pages, at times alongside advocates and scholars with
traditional credentials. To label this cross-pollinated phenomenon as
“expertise” conspires in the frame’s appeal to superior and exclusive
knowledge and risks sidelining the difficult and often collective struggles that
occur within exile. As a consequence, adopting the frame of expertise reifies
the status quo and runs up against what Professor Marie Gottschalk describes
as “the convulsive politics from below that we need to dismantle the carceral
state and ameliorate other gaping inequalities.”388 In that, to silo the ideas
produced in confinement as the work of “experts” undercuts the communal
note 369, at 496 (noting that the most touted examples of police knowledge are “often
grounded less in reliable data than in hunches” and racism).
384. Cf. E. JOHANNA HARTELIUS, THE RHETORIC OF EXPERTISE 1 (2011) (“[B]eing
recognized as an expert generates not only status and power but considerable influence. Those
[so] labeled reap the financial and symbolic benefits . . . . Their voices are heard above
others.”). “[E]xpertise is a relational bid for social standing, an assertion of superiority over
the ‘ordinary’ layperson.” Lvovsky, supra note 369, at 541; id. at 494 (arguing that the expert
mantle “devalues more informal authorities”).
385. “Even if expertise and technocracy become somehow disentangled, there’s still a risk
that appeals to expertise suggest that only some subset of the polity is qualified to decide or
opine.” Levin, supra note 25, at 2833 (“[T]he power of the expertise claim generally rests on
its exclusivity.”).
386. Friedrich A. Hayek, The Use of Knowledge in Society, 35 AM. ECON. REV. 519,
521–22 (1945).
387. Id.
388. GOTTSCHALK, supra note 15, at 282; James Boyle, The Politics of Reason: Critical
Legal Theory and Local Social Thought, 133 U. PA. L. REV. 685, 699 (1985) (“By appearing
to be neutral to ends, or by merely offering means to reach pre-selected ends, the ideology of
technocracy actually buttresses the status quo.”); Pierre Schlag, A Reply—The Missing
Portion, 57 U. MIAMI L. REV. 1029, 1037 (2003) (describing two complementary moves: one
that “reveal[s] the emptiness of the claims to expertise” and one that shifts expert authority to
those who are excluded, but arguing that both moves reinscribe and reinforce “precisely the
sort of rhetorics and hierarchies they contest”); Levin, supra note 25, at 2835 (“Expertise
might become a shorthand for legitimacy and standing, but I wonder whether that rhetorical
or framing move has costs in that it implies an acceptance of the logic of qualified
participation”); id. at 2818 (“[D]ismantling these unjust institutions would require much more
than greater expert involvement; it would require a deep reckoning with the fundamental
logics that have allowed these institutions to proliferate in the first place.”); Akbar, supra note
236, at 1806 (“Bureaucracy and democracy—experts, the public, politics, and data—got us
into the mess of mass criminalization in the first place. It will take an upheaval of our
conceptions of crime, punishment, and expertise to undo mass criminalization and stop police
violence.”); Simonson, supra note 236, at 860 (“Nor should we look to the usual experts to
create roadmaps for transformational change.”).

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consciousness that is essential to movements for freedom. 389 As organizer
and activist Derecka Purnell stated, “the idea of being an abolitionist expert
feels counter to the communal politics of abolition.”390 Expertise creep is a
particular concern for decarceration, a relatively new, aspirational mission
that has only tentative ideas from many quarters.
There are other reasons to rethink the frame of expertise, traditional or
inverted, in decarceration. Inside decarceral moves expose the limits of
professional judgment in a carceral state. Traditional experts certainly could
have designed a study of the zip codes that send people to prison. Supreme
Court “experts” could have brought the same or similar challenges to the high
court; some, in fact, tried without success.391 Expertise also seems
inadequate to capture the contemplation that perseveres in shackles. What
emboldens people under confinement to study the law and bring cases to
courts, often tirelessly, with limited resources and no counsel? And for
many, to bring cases that have no impact on them? What motivates them to
design research to understand an issue that has confounded advocates, law
enforcement, researchers, and policy makers? Even lived experience comes
up short. Although lived experience is one significant source of the wisdom
on the inside, and inside moves are certainly shaped by the social, racial, and
economic oppression experienced during and before confinement, lived
experience alone does not seem to fully explain mastering or critiquing the
law, a vision to design new data metrics, turning ambitious theories into
action, or the full extent of the epistemic value of people in prison in
generating decarceral moves.
I propose a different way of theorizing these inside moves. The moves in
Part I appear to share a common capacity: a deep resistance to captivity
moored to opposing how the law thinks about the people it sends to prison.
Many people in prison have local knowledge of the broader reasons why they
are in prison and a deep incentive to resist carceral logics. Their
contemplation and resistance to how law and society understand them has
generated work and ideas to oppose the laws and circumstances that land
them in prison, tapping into an organic intellect and agency to chip away at
the carceral state’s power.

389. Cf. DAVIS, supra note 34, at 2 (“It is essential to resist the depiction of history as the
work of heroic individuals in order for people today to recognize their potential agency as a
part of an ever-expanding community of struggle.”).
390. Derecka Purnell (@dereckapurnell), TWITTER (June 17, 2020, 6:01 PM),
https://twitter.com/dereckapurnell/status/1273375358298009601 [https://perma.cc/38CW6DDB] (emphasis added).
391. See, e.g., Eugene Volokh, Supreme Court Declines to Reconsider Constitutionality of
Convictions by Non-Unanimous Juries, THE VOLOKH CONSPIRACY (Jan. 10, 2011, 11:38 AM),
https://volokh.com/2011/01/10/supreme-court-declines-to-reconsider-constitutionality-ofconvictions-by-non-unanimous-juries/ [https://perma.cc/Q7WN-EFJ3] (describing a law
professor’s unsuccessful 2010 certiorari petition in Herrera v. Oregon, a case challenging
Oregon’s nonunanimous jury rule that was briefed and had amici support); Petition for
Certiorari at i, Dutch v. United States, 139 S. Ct. 1590 (2019) (No. 18–8442) (arguing that the
judicial fact-finding required by the ACCA’s occasions clause violates the Sixth Amendment).

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Importantly, and on this point, imaginations behind bars have produced
important decarceral steps precisely because people in prison are not
“neutral” or detached.392 Inside pursuits are driven by oppression,393
elevated yet subjugated knowledge,394 deep humanity, and the capacity to
believe in ideas that the deprivation of freedom can make more conceivable
on the inside than on the outside. This brings to mind what Gramsci called
“an optimism of the will.”395 Similarly, although criminal punishment sends
a message to people in prison that they are inconsequential, “it does not
follow that individuals surrender a desire to create change, or the belief that
it is possible.”396
Thinking about the mobilization of ideas inside the walls as unmoored to
expertise but anchored in resistance can have implications for how people in
prison think about their own agency and can encourage more collective
processes between legal scholars, traditional experts, and people in prison.397
Pushing against the reflexive draw to expertise as the source of these moves
opens up a window to see that people in prison have also used law, data, and
innovation, including in ways that expose how the law thinks (and does not
think) about who it sends to prison—an ambition that is essential to
decarceration.398

392. Cf. Burton, supra note 1, at 121–22 (“Black radical knowledge production makes no
claims to objectivity or to ‘detachment’ . . . [but] ‘grow[s] out of a concrete intellectual
engagement with the problems of aggrieved populations confronting systems of oppression.’”
(citing ROBIN D.G. KELLEY, FREEDOM DREAMS: THE BLACK RADICAL IMAGINATION (2002))).
393. Cf. Lobel, supra note 50, at 153 (“Ironically, the [Pelican Bay hunger strikers’]
extreme isolation in oppressive conditions induced them to study law . . . .”); BISSONETTE
ET AL., supra note 50, at 22, 27–28, 68, 76, 145, 158, 168, 221 (describing cross-racial
organizing by people in a Massachusetts prison who “resisted the role they had been consigned
to in society,” and detailing the over two-month period when the entire guard force went on
strike and nearly six hundred people held captive ran the maximum security facility,
preventing violence from erupting in a prison that once boasted the nation’s highest rate of
homicide).
394. See MICHEL FOUCAULT, POWER/KNOWLEDGE: SELECTED INTERVIEWS & OTHER
WRITINGS 1972–1977, at 78, 82 (Colin Gordon ed., 1980) (“[B]y subjugated knowledges one
should understand . . . a whole set of knowledges that have been disqualified as inadequate to
their task or insufficiently elaborated . . . located low down on the hierarchy . . . which owes
its force only to the harshness with which it is opposed by everything surrounding it.”).
395. SELECTIONS FROM THE PRISON NOTEBOOKS OF ANTONIO GRAMSCI, supra note 32, at
175 & n.75 (combining the “pessimism of the intelligence” with an “optimism of the will”).
Allegra McLeod describes this maxim, which Gramsci wrote while imprisoned by Mussolini,
as “the courage to try to alter [current] possibilities” to “attempt difficult things despite the
odds.” McLeod, supra note 14, at 657 n.22.
396. HANNAH L. WALKER, MOBILIZED BY INJUSTICE: CRIMINAL JUSTICE CONTACT,
POLITICAL PARTICIPATION, AND RACE 5 (2020) (analyzing how negative criminal justice
experiences mobilize alternate forms of political engagement by marginalized communities);
see also Henderson, supra note 108 (“[W]e asked ourselves: Do we want to change our
conditions, or do we want to change our circumstances?” (quoting Norris Henderson, who was
imprisoned in Angola for nearly thirty years)).
397. Cf. DAVIS, supra note 34, at 2 (“It is essential to resist the depiction of history as the
work of heroic individuals in order for people today to recognize their potential agency as a
part of an ever-expanding community of struggle.”).
398. See supra pp. 57–59.

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At the risk of stating the obvious, disconnecting from the mantle of
expertise in decarceral work will be difficult. As Lvovsky argues, the
credentials, designations, and privilege that many lawyers and scholars enjoy
and see as central to our own performance may make us “especially
susceptible” to “the promise of professional problem solving.”399 But in a
carceral state that remains in deep crisis, it is crucial to check that reflex and
examine the ways in which the perch of expertise can imprison our thinking.
It is important to note that some people in prison described in Part I were
able to move forward the ideas seeded on the inside only (or in large part)
due to their release from prison. They had jobs or family support and a roof
over their heads (for some, a direct result of their inside work, which built
connections on the outside) that enabled them to focus on continuing the
work that they began on the inside. Still, generating—and having someone
on the outside invest in generating—these moves while inside prison was
critical to the success of their work and their visions, particularly when
release was anything but certain.
This is not to suggest that all, or even most, people in prison will have good
legal or community-specific interventions, or that we can reach all who do.
The next task is to think through possible methodologies to maximize this
collective work. I begin, again, by recognizing the obvious: this task will be
complicated by the constraints of carceral confinement.400 As Angela Y.
Davis has stated, however, “[i]f you’re serious about developing egalitarian
relations, you will figure out how to make these connections.”401 In these
final words, I gesture toward a preliminary set of nonexhaustive next steps.
One step toward finding ways to think alongside people in prison is to
engage in the four methods in movement law scholarship described by
Akbar, Ashar, and Simonson. Adapted to the inside, these modes include
(1) paying attention to “existing modes of resistance” on the inside “as a
source for new insights”; (2) studying strategies of resistance on the inside
that are often obscured in elite legal circles; (3) centering their intellectual
traditions and worldviews to denaturalize established understandings of law
and democracy; and (4) adopting a collective, solidaristic stance.402 With
these four methodological moves, movement law scholars explore new
“terrain[s] of critique” alongside communities in struggle and “treat
movement actors and activists as equal research partners in the generation of
questions and answers about the world.”403
The partnership this Article envisions is not just for legal scholars to
undertake. As revealed in Part I, people in prison have inspired a wide range
of stakeholders toward new ways of thinking. To shift and share focus of
decarceral know-how, it is critical for researchers, policy makers, social
399. Lvovsky, supra note 369, at 541–42.
400. Cf. DAVIS, supra note 34, at 26 (“It may not always be easy to guarantee the
participation of prisoners, but without their participation and without acknowledging them as
equals, we are bound to fail.”).
401. Id. at 27.
402. Akbar, Ashar & Simonson, supra note 45, at 848–70.
403. Id. at 849, 863.

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scientists, practitioners, and community members committed to large-scale
decarceration to join in this collaborative work. Thinking with people in
prison to develop decarceral strategies can begin with immersion in
inside-outside study groups or an embrace of movement law techniques:
participatory action research,404 coauthoring scholarship,405 cocreating
knowledge, identifying new subjects of data collection,406 and creating new
theories for change.407 Social movements that organize and campaign
alongside people on the inside, nonprofit groups led by people who were once
404. Scholars in law and related disciplines have engaged in participatory action research
to understand, analyze, and find solutions to complex social problems. See Lauren Johnson,
Cinnamon Pelly, Ebony Ruhland, Simone Bess, Jacinda K. Dariotis & Janet Moore,
Reclaiming Safety: Participatory Research, Community Perspectives, and Possibilities for
Transformation, 18 STAN. J. C.R. & C.L. (forthcoming) (manuscript at 3–4, 10) (describing
research in which predominantly Black community members in Cincinnati are collectively
redefining public safety alongside academic researchers). This methodology prioritizes the
knowledge and the research questions of communities who are “too often viewed as research
subjects.” Id. (manuscript at 8); see also Emily M.S. Houh & Kristin Kalsem, It’s Critical:
Legal Participatory Action Research, 19 MICH. J. RACE & L. 287, 294 (2014) (“‘[L]egal
participatory action research’ . . . treat[s] those ‘at the bottom’ as equal research partners who
are presumptively best situated to identify, analyze, and solve the problems that directly affect
them.”); Editha Rosario-Moore & Alexios Rosario-Moore, From the Ground Up: Criminal
Law Education for Communities Most Affected by Mass Incarceration, 23 CLINICAL L. REV.
753, 754–55 (2017) (“In concert with Critical Legal Theory, [participatory action research]
challenges both the objective neutrality of the law and claims of empirical objectivity made
by social researchers.”).
405. See, e.g., Moore, Sandys & Jayadev, supra note 347, at 1281 (discussing participatory
defense as a new model for challenging mass incarceration in an article coauthored with a
movement leader who developed the model); Carter, López & Songster, supra note 37, at 315
(describing a study group formed by people in prison that developed a concept grounded in
the Eighth Amendment to challenge life-without-parole sentences in an article coauthored
with a person in prison and a person released from prison); Gimbel & Muhammad, supra note
39, at 1505–28 (discussing a range of nonpolice models for curbing violence in an article
coauthored with a person in prison); see also Akbar, Ashar & Simonson, supra note 45, at
862, 875.
406. Cf. Simonson, supra note 236, at 851–55 (arguing that directly-impacted populations
might envision new data sources and new methods of data collection and measurement).
407. A growing body of participatory action research is taking shape in the prison context.
See, e.g., Danielle L. Haverkate, Travis J. Meyers, Cody W. Telep & Kevin A. Wright, On
PAR with the Yard: Participatory Action Research to Advance Knowledge in Corrections, 5
CORRECTIONS 28, 34 (2020). Although typically focused on conditions inside prisons,
including health, education, and safety, recent participatory research has tapped the knowledge
and skills of people in prison “to better understand what was and was not working with
reentry.” Id. at 7–9 (describing a collaborative project in which policy makers and researchers
in Arizona codesigned a survey instrument with people in prison and prepared them to conduct
interviews on issues relating to recidivism and reentry); see also LAUREN FARRELL, BETHANY
YOUNG, JANEEN BUCK WILLISON & MICHELLE FINE, URB. INST., PARTICIPATORY RESEARCH IN
PRISONS 1–2, 6–8 (2021) (describing examples of participatory research with people in prison
and outlining strategies to promote the well-being of people behind bars). Although this
Article does not envision collaborations premised entirely on survey administration,
participatory action research offers one established model by which scholars and policy
makers can cocreate a research agenda, research questions, methods of data collection,
analysis of findings, and actionable plans for change with people in prison. See Haverkate,
Meyers, Telep & Wright, supra, at 6–7; FARRELL, YOUNG, WILLISON & FINE, supra, at 2–4,
8–9, 11, 14 (describing the key elements of participatory research in prisons and the
importance of and challenges to relationship-building in light of power imbalances).

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incarcerated, faculty in law and other disciplines who lead inside-outside
courses or otherwise teach in prisons, and organizations that work with
people formerly in prison can serve as resources and entry points for
connecting with study groups and individuals thinking on the inside.408 This
project might eventually aspire to more imaginative, long-range possibilities,
such as the creation of nationwide “decarceration centers,” somewhat like
law school clinics, but with the purpose of locating organic activists on the
inside, thinking together to develop innovative decarceral theories and
collaborations, and co-imagining strategic and conceptual interventions to
progress toward decarceration.
CONCLUSION
Sociologist and professor Tony Cheng has argued that the participation of
the public in police-community meetings often becomes “input without
influence.”409 This maxim brings into focus a paradox in American
democracy: many people in carceral institutions have created influence
without input. Responding to inequality made salient by the law, by the

408. For a few key resources, see CTR. FOR NULEADERSHIP ON HUM. JUST. & HEALING,
https://www.nuleadership.org/staff-board [https://perma.cc/C6MX-XBUK] (last visited Sept.
2, 2022); THE FORTUNE SOC’Y, https://fortunesociety.org/ [https://perma.cc/K7YH-G53X]
(last visited Sept. 2, 2022); JUSTLEADERSHIPUSA, https://jlusa.org/ [https://perma.cc/6J752QGA] (last visited Sept. 2, 2022); THE FIRST 72+, https://www.first72plus.org/
[https://perma.cc/43T7-CLHF] (last visited Sept. 2, 2022); SUSAN STURM & HARAN TAE,
LEADING WITH CONVICTION: THE TRANSFORMATIVE ROLE OF FORMERLY INCARCERATED
LEADERS IN REDUCING MASS INCARCERATION (2017), https://scholarship.law.columbia.edu/
cgi/viewcontent.cgi?article=3034&context=faculty_scholarship
[https://perma.cc/EQ6YCQMR]; CRITICAL RESISTANCE, https://criticalresistance.org/ [https://perma.cc/5CWYANX6] (last visited Sept. 2, 2022); BLACK & PINK, https://www.blackandpink.org/
[https://perma.cc/3MX3-W3CY] (last visited Sept. 2, 2022); Exoneree Advisory Council,
INNOCENCE PROJECT, https://innocenceproject.org/disciplines/exoneree_advisory_group/
[https://perma.cc/4232-HTQU] (last visited Sept. 2, 2022); BARD PRISON INITIATIVE,
https://bpi.bard.edu/ [https://perma.cc/D78T-LPL3] (last visited Sept. 2, 2022); PA. PRISON
SOC’Y, https://www.prisonsociety.org/about_us [https://perma.cc/9WTT-NM5L] (last visited
Sept. 2, 2022). Population-led coalitions and “lifers clubs” inside prison walls, better known
for serving needs within prisons, have built inside-outside coalitions to advance policy
projects, created opportunities for community connection, promoted public awareness of
issues relating to mass incarceration, and organized for social change. See, e.g., Anna Clark,
How a Group of Lifers Cracked the Code of Prison Reform, POLITICO (June 25, 2020,
3:00 AM), https://www.politico.com/news/magazine/2020/06/25/criminal-justice-prisonconditions-national-lifers-association-334021 [https://perma.cc/4A9U-VCTF]; Gregory K.
Atkins, Opinion, Lifers Club Shows Hopeful, Productive Life Can Continue in Prison,
KNOXVILLE NEWS SENTINEL (Aug. 30, 2018, 4:00 PM), https://www.knoxnews.com/story/
opinion/columnists/2018/08/30/lifers-club-shows-hopeful-productive-life-can-continueprison/1057709002/ [https://perma.cc/7M2Q-NHZW].
409. Tony Cheng, Input Without Influence: The Silence and Scripts of Police and
Community Relations, 67 SOC. PROBS. 171, 176 (2019) (finding that community meetings
become “a mechanism of legitimating the input process, but only further reinforc[e] the social
order”); see also K. Sabeel Rahman & Jocelyn Simonson, The Institutional Design of
Community Control, 108 CALIF. L. REV. 679, 698 (2020) (“[W]hen people directly affected
by the criminal legal system attempt to intervene in policy debates over criminal law and
procedure, they find their calls muted because they are members of a population that has been
systematically disenfranchised by the very systems of criminal law that they aim to reform.”).

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prison, and by a deep reflection on who the law sends to prison, people held
in cages have generated remarkable strategies, ideas, and moves that serve
decarceral ends. Their innovative strides have made it more conceivable to
gradually reduce the carceral footprint, opening up possibilities to create
long-term legal and social change.
As many scholars and activists have argued, our current moment requires
a profound commitment to transformative change. If we are serious about
meaningful decarceration, it is essential to think alongside different ideas,
actors, and partners. Some people in prison have produced important, even
stunning, decarceral work, and fresh, brilliant ideas that would be startling
even if generated by those not subject to carceral punishment. Ambitious
ideas to reduce prison populations and reimagine public safety are
percolating on the inside; some are inchoate, and some are yet to be
conceptualized. These interventions continue to remain hidden to the outside
but can be sparked by ongoing collective imagining. Our moment demands
looking to people inside prison as decarceral partners. The test is whether
we have the will to do so.