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ABOLITION AND REPARATIONS:
HISTORIES OF RESISTANCE, TRANSFORMATIVE
JUSTICE, AND ACCOUNTABILITY
Patrisse Cullors*
The historical context of abolition is minimally understood, either in

today's social movements or in U.S. society more broadly. For our po-
litical strategies and struggles against racism, patriarchy, and capitalism
to be effective, we must deeply ground ourselves in an abolitionist vision
and praxis.1 The combination of theory and practice takes consistent
and committed work to upend the systems that make prisons, policing,
and domestic and international warfare possible. These phenomena
spell displacement, despair, diasporas,2 trauma, and death for our fami-
lies and communities in the United States and globally. In this Essay, I
will reference different movements to frame my theoretical understand-
ing of abolition, its history, and its potential political power. We organ-
izers and freedom fighters believe that an abolitionist framework and
strategy is necessary to challenge the conditions faced by Black commu-
nities in this country, and that only through an abolitionist struggle will
we repair our communities and undermine the systems of oppression we
know have facilitated devastation, from the transatlantic slave trade
through the prison industrial complex. I will shed light on cases where
social justice workers have come up against and learned from moments
and movements filled with opportunities where an abolitionist praxis
might have emerged. Some of these opportunities were taken, and some
were missed. In this narrative, I intend to provide organizers, scholars,
and communities with a history of abolition, as well as the tools and the
principles for how to assess, define, and incorporate an abolitionist
praxis in all aspects of our work and lives.
* Cofounder, Black Lives Matter; Adjunct Professor, Prescott College; M.F.A. Candidate,
University of Southern California.
1 PAULO FREIRE, PEDAGOGY OF THE OPPRESSED 51 (Myra Bergman Ramos trans.,
Continuum 3 oth Anniversary ed. 2005) (1970) ("Functionally, oppression is domesticating. To no
longer be prey to its force, one must emerge from it and turn upon it. This can be done only by
means of the praxis: reflection and action upon the world in order to transform it.").
2 The African diaspora is a term that refers to the dispersal of African peoples to form a distinct,
transnational community. It is most often used to refer to Africans and their descendants living
outside the continent, but diasporas have formed within the continent as well. See PAUL GILROY,
THE BLACK ATLANTIC: MODERNITY AND DOUBLE CONSCIOUSNESS 15 (1993)
1684
2019] DEVELOPMENTS - PRISON ABOLITION 1685
I. ABOLITION IN HISTORICAL CONTEXT

The United States, the world's largest jailer,3 is also the world's
greatest perpetrator of war and the most extensive purveyor of human
rights atrocities at home and abroad, laying claim to over 8oa military
bases around the world. 4 It is no surprise that tear gas was sprayed
both on Black women and children demanding justice in the wake of
the fatal officer shooting of young Michael Brown in Ferguson,
Missouri,5 and on the streets of Buenaventura, Colombia, contaminating
the lungs of Afro-Colombians fighting for reparations and for an end to
U.S.-backed, state-sanctioned violence. Military training, equipment,
and strategies used by militarized police forces in the United States have
been found for decades in countries around the world. Therefore, what-
ever political change we advocate for, it must address and settle this
dilemma of global U.S. state violence, injustice, and devastation. We
define abolition as a praxis that roots itself in the following principles:
people's power; love, healing, and transformative justice; Black libera-
tion; internationalism; anti-imperialism; dismantling structures; and
practice, practice, practice. Our work is guided by political movement tra-
ditions against slavery and racism dating back to the African and Indige-
nous Maroons of the Americas who dared to imagine their lives without
shackles like those of their contemporary brethren currently incarcerated.
We draw upon the theoretical work of many before us. Professor
Angela Y. Davis - philosopher, Marxist, and former Black Panther
whose work on prisons, abolition, and Black struggle has proven rele-
vant over time - has informed our movements and communities for
decades. Her political theories and reflections on anticapitalist move-
ments around the world have sought not only to transform U.S. society
3 See INST. FOR CRIMINAL POLICY RESEARCH, Highest to Lowest - PrisonPopulationTotal,

http://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All
[https://perma.cc/7ADJ-G4LD].
4 Alice Slater, The U.S. Has Military Bases in 8o Countries. All of Them Must Close., THE
NATION (Jan. 24, 2018), https://www.thenation.com/article/the-us-has-military-bases-in-i72-
countries-all-of-them-must-close/ [https://perma.cc/G6CK-Y 4 5N].
5 Justin Carissimo, Michael Brown's Death Inspires New State Laws Across 24 States, THE
INDEPENDENT (Aug. 3, 2015, 5:16 PM), https://www.independent.co.uk/news/world/americas/
michael-browns-death-inspires-4o-new-state-laws-across-24-states-10435927.html [https://perma.cc/
LJ4 L-HN 3 H].
6 See Black Alliance for Peace, Victory for the Black Struggle in Buenaventura, Colombia,
BLACK AGENDA REP. (June 14, 2017), https://blackagendareport.com/victory_buenaventura_
colombia_strike [https://perma.cc/W7Q5-H28D]; Jonathan Watts, Battle for the Mother Land: In-
digenous People of Colombia Fightingfor Their Lands, THE GUARDIAN (Oct. 28, 2017, 7:05 PM),
https://www.theguardian.com/environment/201 7/oct/28/nasa-colombia-cauca-valley-battle-mother-
land [https://perma.cc/S2DP-FXJY].
7 Solidarity with Honduras, SCH. OF THE AMS. WATCH, www.soaw.org/advocacy/
solidarity-with-honduras/ [https://perma.cc/XggN-6F6L].
8 See generally QUINCY SAUL ET AL., MAROON COMIX: ORIGINS AND DESTINIES (2018).
1686 HARVARD LAW REVIEW (Vol. 132:1684
by challenging white supremacy in U.S. laws, institutions, and relation-

ships, but also to act as a catalyst toward building a broader antiracist
and antiwar movement internationally.9 Another significant theorist is
Frantz Fanon, a psychologist and political theorist from Martinique
whose work on colonial violence in Algeria and across the Third World
makes timely connections necessary to understanding the current global
context for Black individuals on the African continent and in our mul-
tiple diasporas. 1' And finally, the poet and theorist on interlocking iden-
tities Audre Lorde embodies this abolitionist praxis in her moving testi-
monies and observations through a Black, queer, feminist lens.
II. REPARATIONS: ABOLITION IN ACTION
Abolition calls on us not only to destabilize, deconstruct, and demol-

ish oppressive systems, institutions, and practices, but also to repair
histories of harm across the board. Our task is not only to abolish pris-
ons, policing, and militarization, which are wielded in the name of "pub-
lic safety" and "national security." We must also demand reparations
and incorporate reparative justice into our vision for society and com-
munity building in the twenty-first century. Reparations campaigns en-
compass a wide array of demands. Most commonly, reparations in our
contemporary movements are justified by the historical pains and dam-
age caused by European settler colonialism and are proposed in the form
of demands for financial restitution, land redistribution, political self-
determination, culturally relevant education programs, language recu-
peration, and the right to return (or repatriation).11
Reparations have a long history in the United States and in other
nations for both Black and Indigenous peoples." Caribbean and Latin
American nations have launched a political and grassroots campaign for
reparations.13 The organization Caribbean Community (CARICOM)
presently leads a multi-state initiative against European powers.1 4 The
organization was formed after Haiti, the first Black republic of the
9 See Angela Davis, Reflections on the Black Woman's Role in the Community of Slaves, 3
BLACK SCHOLAR, Nov.-Dec. 1981, at 2 (1971).
10 See generally FRANTZ FANON, THE WRETCHED OF THE EARTH (Constance Farrington
trans., Grove Press, First Evergreen ed. 1966) (1961).
11 See, e.g., Reparations, MOVEMENT FOR BLACK LIVES, https://policy.m4bl.org/reparations/
[https://perma.cc/G6KU-GKC5].
12 See, e.g., H.R. 40, 115th Cong. (2017) (affirming the relationship between the history of the
formation of the United States and the "fundamental injustice, cruelty, brutality and inhumanity"
inherent in the institution of slavery).
13 Jeanette Charles, Opinion, Belize: Africans, Asians and Indigenous Peoples Demand Repara-
tions, TELESUR (Oct. 27, 2015), www.telesurenglish.net/opinion/Belize-Africans-Asians-and-
Indigenous-Peoples-Demand-Reparations-20170206-0003.html [https://perma.cc/GFE2-QWQY].
14 About Us, CARICOM REPARATIONS COMMISSION, http://caricomreparations.org/about-
us/ [https://perma.cc/WZ3C-YRZR].
Western Hemisphere, launched a reparations campaign against France

for the equivalent of over twenty-two billion dollars in 2004, the year of
Haiti's bicentennial."
Reparations in our U.S.-based movements may take on a variety of
forms, including alignment with reparations struggles in the Caribbean,
Latin America, and Africa. In addition, reparations should include
restoring a balance from within our communities and carrying our au-
tonomous healing and reparatory work through the arts, culture, lan-
guage, and emotional and mental health services. Reparations must also
include pressure on state accountability as well as community-driven
and -centered responses.
The political and grassroots movements most demonized by the U.S.
state, and most pressured by the U.S. apparatus within and outside its
fabricated borders, are promising testaments to the possibilities of an
abolitionist future. In our social justice work, we are often confronted
with moments that test our emotional, political, and personal bounds.
The aforementioned framework and histories bring our analysis back to
the basics and the everyday praxis in our homes, with our families, in
our communities, and with our organizations. As cofounder of Black
Lives Matter and long-time organizer against U.S. state-sanctioned
violence, I am reminding folks in a series of personal vignettes what
abolition is and which principles we should reference in our own aboli-
tionist work.
My abolitionist journey embodies the following twelve principles:
(i) have courageous conversations; (2) commit to response versus
reaction; (3) experiment: nothing is fixed; (4) say yes to one's imagina-
tion; (5) forgive actively versus passively; (6) allow oneself to feel; (7)
commit to not harming or abusing others; (8) practice accountability for
harm caused; (9) embrace non-reformist reforms; (to) build community;
(ii) value interpersonal relationships; (12) fight the U.S. state and do not
make it stronger. I ask that you sit with these vignettes, reflect on your
own experiences, and begin to sketch your own abolitionist praxes and
testimonies. 16
III. WHAT WE'RE UP AGAINST: THE LACK OF

TRANSFORMATIVE JUSTICE ALTERNATIVES
From 2005 to 2006, I worked as a high school youth counselor. Stu-

dents visited my office to talk about any number of things: teachers,
homework, and family issues, among other topics. They confided in me,
and our conversations took on deep issues daily.
15 Westenley Alcenat, The Case for Haitian Reparations, JACOBIN (Jan. 14,
2017),
https://www.jacobinmag.com/2017/oi/haiti-reparations-france-slavery-colonialism-debt/ [https://
perma.cc/V2XZ-ZW5 S].
16 All names in the following stories have been changed.
One day, a student, Marisol, shared with me that her teacher, Mr.
Franklin, was flirting with one of her friends. Mr. Franklin was a for-
mer teacher and mentor of mine; I was overcome with emotion upon
learning it was him. I looked up to him, and most of all, I had trusted
him over the years. When Marisol spoke with me, I reminded her that
I was a mandatory reporter.17 We discussed the implications of my re-
porting and how it would affect all of us. As required, I reported the
situation to the Department of Children and Family Services and the
school district.
Upon filing Mr. Franklin's case, we found that this was not the first
time this type of abuse had occurred during his tenure. Many of us were
devastated to learn of other instances of child abuse on campus. I faced
complicated feelings, as the abolitionist practice I believed in did not
find itself reflected in the consequences for either Mr. Franklin or the
young student. I reached out to my community and facilitated healing
circles with the student. We held space for collective reflection and
breathing, and we reminded ourselves of everyone's humanity. I reached
out to Mr. Franklin as well upon disclosing my identity as the reporter.
However, he did not respond to my attempts to communicate with him.
I experienced bouts of post-traumatic stress disorder and, at that time,
felt unequipped to ask for the support I needed. I cried. I felt betrayed.
I was confused. I talked and processed with as many people in my
community as would listen.
When I look back at this episode, I remember the anger I felt in my
young adult life at the first institutional response being punitive and
defaulting to criminalization. There was nothing restorative in place for
anyone. The system punished and left more disaster in its wake. This
instance furthered my commitment to abolition because my experience
showed me how little the state and its services were truly reparatory in
nature. At twenty-two years old, I tried. But Marisol's friend needed
more. I needed more. Even Mr. Franklin needed more.
Abolition is taking a stand against sexual violence and abuse.
Abolition seeks out restorative practices for all, even when that implies
working with the perpetrator of said violence. Abolition finds new ways
to operate within a society that considers its members disposable.
Abolition means being there for our youth, especially young women of
color. Abolition is education in practice.
17 A mandatory reporter is a person who, because of his or her profession, is legally required to
report any suspicion of child abuse or neglect to the relevant authorities. CHILD WELFARE INFO.
GATEWAY, MANDATORY REPORTERS OF CHILD ABUSE AND NEGLECT 1-2 (2016),
https://www.childwelfare.gov/pubPDFs/manda.pdf [https://perma.cc/7NEH-8CP2].
Two years before that experience, my brother was released from

prison. While incarcerated, he was diagnosed with schizoaffective dis-
order and was released in the midst of his first manic episode.18 The
authorities did not provide my family with the information necessary to
understand his mental health condition. By the second day after his
release, it was clear to us that my brother wasn't well. No one in my
family - not my sister, mother, father, stepfather, nor I - was prepared
for the level of chaos awaiting us. On the third day, my brother was
visibly deteriorating. He hadn't slept. He was hallucinating. He was
slowly losing clarity about his surroundings - and we were terrified.
My mother and I tried to figure out what was happening. We con-
tacted people in our community and reached out to my brother's proba-
tion officer. She had no idea that he had a history of mental illness.
When she came to visit, his condition alarmed her, but she had no in-
sight or actionable advice on what we should do. I reached out to my
former high school teachers, who advised me to get my brother to a
hospital. Finally, we called the Psychiatric Emergency Team (PET), and
when the ambulance arrived, the paramedics instructed us to call the
police. They told us that the PET did not pick up people recently re-
leased from prison.
Out of desperation, I called 911. I spoke with the dispatch desk of
the Los Angeles Police Department and provided a detailed description
of my brother's condition, sharing with the police that he had just been
released from prison. I assumed they would express sympathy for my
brother and our family. Afterward, I stood outside my apartment so I
could explain the situation in person and ask them questions. When
they arrived, I asked, "What will you do to de-escalate the situation if
my brother becomes afraid of you? How will you get my brother to the
hospital? What are your protocols for people with mental illness? Can
I follow you to the hospital?"
The officers were scared out of their wits as I described my
brother - a dark-skinned Black man, 6'2" tall, and nearly 300 pounds.
One officer replied, "I'll tase him if he escalates." I responded with
shock and outrage. But the police were our only option at that moment,
and I knew our family needed to act. I escorted the officers into the
apartment. The moment they stepped into the house, I realized that I
had made a terrible mistake. My brother instantly dropped to his knees,
hands in the air, and pleaded with the officers for his life. I ran over to
my brother, held him, told him that he was safe, and asked the officers
to leave.
18 Schizoaffective disorder is, like schizophrenia, a psychotic disorder. It includes psychotic el-
ements and significant mood symptoms. See Schizoaffective Disorder, NAT'L ALLIANCE ON
MENTAL ILLNESS, https://www.nami.org/learn-more/mental-health-conditions/schizoaffective-
disorder [https://perma.cc/48DS-RWSZ].
1r9g HARVARD LAW REVIEW (Vol. 132:1684
By the fourth day, my brother didn't recognize any of us. My mother

woke up that morning overcome by violent tears I had never before
witnessed. My stepfather decided he would get my brother help and, to
our great surprise, my brother trusted him and went to the hospital.
My brother should have never been imprisoned. He should have
received the medical support he needed to lead a healthy life. My family
should have been informed. We should have received proper services
and resources: caseworkers, therapists, and family counseling. The po-
lice should not have been the primary option for our family. There
should have been first responders trained in restorative justice, healing,
and antiracist practices. My brother and our family were left out on our
own in one of our most challenging moments.
Abolition authentically serves and protects our loved ones. Abolition
fights to ensure that all families have access to adequate and quality
health services. Abolition means not having the police as first respond-
ers to mental and emotional health crises. Abolition advocates against
imprisonment and policing.
Felipe, the brother of one of my closest friends, was a coyote: he was
part of an underground business bringing undocumented people into the
United States at the border near San Diego.19 One evening during his
late-night transports, Border Patrol started to tail his car. Felipe had
four people in his car, including a pregnant woman. Border Patrol's
pursuit resulted in a high-speed chase. As a result, Felipe crashed his
minivan into a semi-trailer truck. He awoke in a hospital with his hands
cuffed to the bed. Everyone else in the van died in the crash. Felipe's
sister, Daniela, immediately called me when the news reached her and
her family. Felipe would be charged with a crime that, if he were con-
victed, carried a life sentence. On the San Diego local news he was
criminalized, repeatedly called a murderer. Felipe had just turned eight-
een years old and was to be tried as an adult.
Daniela and I gathered our community. We raised funds for an at-
torney. We fought for Felipe's life. We confronted hard questions: How
do you move your community to fight for someone like Felipe, who was
painted as a monster in the media? What could we say in response to
questions about the harm coyotes have caused, or the fact that doctors
found drugs in Felipe's system? We didn't have the answers. But we
knew to our very cores that life in an iron cage would do no one any
good. So we campaigned. We asked people we knew for money for
Felipe's case. We pushed folks to see and remind themselves of Felipe's
humanity. We facilitated hard conversations. We held each other. We
also did work around the harm the accident caused the other families
who lost their loved ones. We prayed for those families. Felipe cried.
He apologized to those families.
19 See generally DAVID SPENER, CLANDESTINE CROSSINGS: MIGRANTS AND COYOTES

ON THE TEXAS-MEXICO BORDER (2009).
The state failed Felipe and his community. The state failed all of
those families. Felipe needed access to a recovery program for his drug
use. Felipe needed stable employment with a living wage. Felipe's
family needed support when they immigrated to the United States,
forced out of their homeland because of the United States' role inciting
wars across Central America, and in El Salvador specifically, in the
1970s and 1980s. 2 0 To understand what happened to Felipe and those
families that night, we must draw the preceding connections. We must
also ask: Why are people leaving their homelands to come to the United
States? What violence have U.S. foreign policy, U.S. transnational cor-
porations, and U.S. militarization perpetrated around the world?
In the end, we hired a lawyer and Felipe's sentence was reduced to
twenty-eight years with a date to return home. For us, that represented
a victory. Felipe would not spend his entire life in prison. His family
went home to grapple with their new reality: a son, a brother, in prison
for nearly three decades. Birthdays, anniversaries, family gatherings,
and other remarkable life moments separated by barbed wire, iron bars,
and security guards. No process, no support; just gavels and cages.
Abolition means no borders. Abolition means no Border Patrol.
Abolition means no Immigration and Customs Enforcement. Abolition
means an end to U.S. wars at home and abroad. Abolition centers fam-
ilies, communities, and healing. Abolition asks the hard questions.
Abolition looks for solutions.
IV. PERSONAL RELATIONSHIPS AND CRIES FOR

TRANSFORMATIVE CULTURE
At twenty-three years old, my best friend Star became an avid drug

user and sex worker. We grew up together and had known each other
since we were twelve years old. Immediately, I responded with deep
criticism. I thought my words, reminding Star of her power and how
she could do "more" with her life, would benefit her. Instead, I pathol-
ogized her. I judged her. Eventually, my pedestal pushed her away.
Star stopped talking to me. Now, I understand why. She felt scru-
tinized. Over the years, I had absorbed all the myths about drug users,
addicts, and sex workers. I thought they needed to be saved. Despite
all my best intentions, I failed my best friend. I did not apply my abo-
litionist practice. I let down this Black woman, my best friend. For
this, I am deeply sorry.
If she told me now, I would behave differently. Today, I would hold
space for her decisions and find resources for her. I would be more
20 See, e.g., Cole Kazdin, The Violence CentralAmerican Migrants Are Fleeing Was Stoked by
the U.S., VICE (June 28, 2018, 12:00 AM), https://www.vice.com/enus/article/qvnyzq/central-
america-atrocities-caused-immigration-crisis [https://perma.cc/5SDY-RQGA].
graceful, loving, kind, and gentle, and a better listener. I would not let
puritanism overcome me and condemn her worth as a person.
Abolition does not tell people how to live their lives. Abolition is not
about righteousness. Abolition does not put ourselves above our people
and those we love.
I spent ten years in a toxic relationship with a trans man. They were
kind and charming, but they were also a rageaholic. They were posses-
sive. They wanted all of my time. They were incredibly controlling.
One night, they went into a fit of rage and tried to fight someone else.
I used my body as a barrier. We went home in silence.
Their rage continued. For a long time I never told anyone. No one
in my close circle of friends knew how much my partner at the time was
a rageaholic. I started walking on eggshells. I stopped bringing things
up. I shrank. I avoided their constant irritability. I realized that I had
no capacity for this relationship. I wanted out. Needed out.
Without my friends' support, I developed an exit from this relation-
ship. I had enabled my partner and their devastating default to rage.
When I left the relationship, it created a wave of friction in our commu-
nity. Our friends lent me support but left my former partner with little
to nothing. My former partner became isolated. I came to realize that
they had relied on me for everything. They didn't have a strong circle
of friends or a support system. The few friends they had, our mutual
friends, took sides.
We need a culture that does not epitomize, isolate, and center
romantic relationships. We need to cultivate a society that encourages
community and fosters love for our communities.
Abolition means community. Abolition does not isolate individuals.
Abolition invites people in. Abolition repairs the friction caused by nec-
essary separation. Abolition acknowledges enabling and provides tools
to prevent this behavior. Abolition does not choose sides.
V. SUCCESSFUL TRANSFORMATIVE PRACTICE IN

PERSONAL RELATIONSHIPS
I helped raise my nephew. I made a promise to myself that I

wouldn't spank him. When other family members tried to hit my
nephew, he'd come running to me. When my nephew turned eleven
years old, his parents lost all parental rights and my mother became his
legal guardian. This forced my family to develop new strategies for
child raising, development, and accountability. We had new conversa-
tions with my nephew. We asked him to voice his needs and communi-
cate when he was upset. Instead of lashing out with force, my nephew
used his voice, and we responded with appropriate actions.
I remember moments in my childhood where there were no conver-
sations, just a belt and a deep sting of humiliation. My nephew experi-
enced a different type of environment. I witnessed firsthand the impact
of a nonspanking home. My nephew developed into a more thoughtful,

communicative, and sensitive person. He felt empowered to name his
feelings. He did not exhibit the same type of fear I witnessed in so many
other Black children.
Raising my nephew wasn't easy. I do not want to sugarcoat or mis-
represent the labor that went into this practice. So many times we all
took time-outs from him. And so many times my mother called me
while at her wits' end. But we didn't hit him, and we learned to collec-
tively build better practices.
Abolition is about respecting children, particularly and especially
Black children, who are disciplined at school most frequently2 1 Aboli-
tion is teaching our children about how to hold space for their emotions
instead of bottling them up for fear of being punished. Abolition is
teaching our children accountability. Abolition is reminding our chil-
dren that they are free.
This one is hard. A few years ago, I started seeing someone, Jordan.
One weekend they came over and we became sexually intimate. This
person crossed my boundaries. I felt uncomfortable, weird, and vulner-
able while it happened. But, I couldn't name it. I didn't stop it while
it was happening. I set boundaries and said "no." I repeated that two-
letter word. This other person did not respect my "no."
After that weekend, they went home. Once they left, I slowly came
to realize what happened and that things weren't right. I called friends
and processed with them what took place. Eventually, I asked one of
my friends to accompany me as I confronted the person whom I had
shared intimate space with - who had harmed me. Both the person in
question and my friend were masculine of center. I thought this would
make holding them accountable easier to do. They knew each other,
and my friend had experience in transformative justice facilitation and
support. I confided in my friend and detailed exactly what I needed,
what I wanted:
1. Tell Jordan that I was harmed.

2. Tell Jordan that I wanted space from them.
3. Help Jordan secure help and realize where they caused harm.
After the meeting, Jordan became defensive. Again, they refused to

respect my boundaries. And they began to spiral. They left me constant
voicemails, text messages, and letters. I asked my friend to remind
Jordan that I needed space. They stopped sending letters and making
calls. I had room to feel, to sit with my grief, and to come to terms with
what happened to me.
21 See U.S. GOV'T ACCOUNTABILITY OFFICE, K-12 EDUCATION: DISCIPLINE DISPARI-

TIES FOR BLACK STUDENTS, BOYS, AND STUDENTS WITH DISABILITIES 14 fig.2 (2018),
https://www.gao.gov/assets/700/69o828.pdf [https://perma.cc/TC5M-6C23].
The following year, I contacted Jordan. I asked if they were open to

meeting with me. Jordan agreed. We processed what happened over
dinner. It was challenging, heart-wrenching, and awkward. But most
of all, our meeting was healing. Incredibly healing.
What made this experience so hard was that the harm and healing
took place within the Black queer community. This incident forced me
to practice what I preach by embracing accountability and abolition
fully. It pushed me to clarify my needs, give myself permission to take
the space and time I needed, and process healing as an individual and
as a member of a community. I am grateful to my friend who lent their
support, and who from that initial moment and throughout that year
provided me with the tools I needed to repair the damage.
Abolition means setting, communicating, and respecting boundaries.
Abolition means reinforcing those boundaries when they are not heard.
Abolition means transformative justice. Abolition allows one time to
heal. Abolition seeks to repair the damage done to a person or a people.
Abolition holds space for the person or people who have perpetrated
violence, harm, and damage. Abolition makes the impossible possible.
I have sat in, facilitated, and participated in many healing circles
with people I've harmed and who have harmed me. Defensiveness,
anger, self-righteousness, self-realization, serenity, and other emotions
have come over me and through me in those moments. I am grateful
for the opportunities I have had to apologize and learn from my mis-
takes. I am appreciative of the times I have forgiven and moved beyond
the harm, toward transformation.
I am forever indebted to the community of friends, family, and loved
ones I have created over the years to hold one another and call ourselves
into our own collective humanity. I value this community, the people
that I call my team.
CONCLUSION
Abolition must be a cultural intervention. It must produce a new

way of being even in the most challenging and difficult moments. We
have not collectively practiced abolition so it's hard for us to understand
its significance. But, if we implement a new practice that is centered in
care and dignity, we might find a practice that challenges our instinct to
"cancel" each other. Abolition is about how we treat each other. It is
about how we show up in relationships. Abolition is about how we
respond to harm caused and how we respond when we cause harm. It
is differentiating between large-scale systems that have been built to
perpetuate our harm, and individual harm caused against one another.
I don't believe abolition is about bullying, but I do believe abolition is
about standing up for yourself. We need to be committed to building a
culture that is rooted in care, dignity, and accountability. Let's never
forget the consequences of a draconian and antiquated system.
BOOK REVIEW
DIGITIZING THE CARCERAL STATE
AUTOMATING INEQUALITY: How HIGH-TECH TOOLS PROFILE,

POLICE, AND PUNISH THE POOR. By Virginia Eubanks. New
York, N.Y.: St. Martin's Press. 2018. Pp. 260. $26.99.
Reviewed by Dorothy E. Roberts*
Many life-changing interactions between individuals and state

agents in the United States today are determined by a computer-
generated score.1 Government agencies at the local, state, and federal
levels increasingly make automated decisions based on vast collections
of digitized information about individuals and mathematical algorithms
that both catalogue their past behavior and assess their risk of engaging
in future conduct. Big data, predictive analytics, and automated deci-
sionmaking are used in every major type of state system, including law
enforcement, national security, public assistance, health care, education,
and child welfare. 3 The federal government has pumped billions of
* George A. Weiss University Professor of Law & Sociology, Raymond Pace and Sadie Tanner
Mossell Alexander Professor of Civil Rights, Professor of Africana Studies, University of
Pennsylvania. Penn Law student Rachel Baker Mann provided excellent research assistance for
this Review.
1 See, e.g., CATHY O'NEIL, WEAPONS OF MATH DESTRUCTION 3-14 (2Q16) (explaining
that computer-generated scores inform decisions about teacher evaluation, criminal sentencing, and
consumer finance); FILIPPO A. RASO ET AL., BERKMAN KLEIN CTR., ARTIFICIAL INTELLI-
GENCE & HUMAN RIGHTS: OPPORTUNITIES & RISKS (2018), https://ssrn.com/abstract=3259344
[https://perma.cc/V446-C6JS] (discussing how artificial intelligence affects human rights in the con-
texts of criminal justice, credit scores health care, human resources, and education).
2 See generally BERNARD E. HARCOURT, AGAINST PREDICTION (2007); VIKTOR MAYER-
SCHONBERGER & KENNETH CUKIER, BIG DATA (2013); O'NEIL, supra note 1; FRANK
PASQUALE, THE BLACK BOX SOCIETY (2015).
3 See O'NEIL, supra note i, at 134-40 (discussing models that score public school teachers'
performance); Bill Cope & Mary Kalantzis, Big Data Comes to School: Implicationsfor Learning,
Assessment, and Research, 2 AERA OPEN I (2016), https://journals.sagepub.com/doi/
abs/io.i177/2332858416641907 [https://perma.cc/YA8G-WAW3]; Kevin Miller, Total Surveillance,
Big Data, and Predictive Crime Technology: Privacy's Perfect Storm, i J. TECH. L. & POL'Y 105,
107 (2014) (describing "total surveillance, big data analytics, and actuarial trends in policing" as a
"triple threat" to privacy); Nicolas Terry, Navigating the Incoherence of Big Data Reform Proposals,
43 J.L. MED. & ETHICS (SUPPLEMENT) 44, 44 (2015) ("The health care industry will be a large
customer of big data while predictive analytics already underlie important health care and public
health initiatives."); Damien Van Puyvelde et al., Beyond the Buzzword: Big Data and National
Security Decision-Making, 93 INT'L AFF. 1397, 1398 (2017) ("In the US intelligence community big
data has become institutionalized...."); Press Release, White House, Office of the Press Sec'y, Fact
Sheet: First Ever White House Foster Care & Technology Hackathon (May 26, 2016), https://
obamawhitehouse.archives. gov/the-press-office/20 16/o5/26/fact-sheet-first-ever-white-house-foster-
care-technology-hackathon [https://perma.cc/23M2-W2UA] (listing a number of measures the
1695
dollars not only into its own data reservoirs, but also into state and local
efforts to digitize government operations.4
Government officials claim their expanding use of big data will im-
prove the accuracy, efficiency, and neutrality of their decisions. 5 But big
data has been met by a tremendous chorus of alarm. These concerns
have centered paradoxically on claims that there is both too little and
too much automation. On one hand, some scholars and advocates have
criticized the "digital divide" created by the unequal distribution of
access to technological innovations. 6 In this view, inequality in big data
stems from the lack of opportunities socially disadvantaged groups have
to share in its benefits. Alternatively, some experts argue that digitized
tools can increase equality in access to public resources. For example,
adopting online platform technologies that move away from a face-to-
face model for handling legal disputes may enhance access to justice by
giving more people opportunities to interact with government agencies
such as state courts7 and to utilize government assistance such as legal
services."
On the other hand, numerous commentators have pointed to the dan-
gers of state overreliance on big data. These dissenters warn that the
mushrooming technological surveillance of citizens threatens to invade
individuals' privacy and erode government accountability at an unprec-
edented scale.9 According to this view, citizens should demand more
regulation to protect their personal data and subject automated deci-
sionmaking to greater public scrutiny 10 The European Union, for ex-
ample, recently enacted a new data privacy law "designed to give indi-
viduals the right to control their own information."1 1
Obama Administration implemented "to increase the use of technology and improve outcomes in
the foster care system").
4 See Sara Friedman, State Data Officers Offer Feedback on Federal Data Strategy,
GCN (July 31, 2018), https://gcn.com/articles/2018/07/31/state-cdo-federal-data-strategy.aspx
[https://perma.cc/E8H2-QRFJ].
5 See Press Release, White House, supra note 3 (announcing a convening hosted by the White
House, the U.S. Department of Health and Human Services, and Think of Us to "discuss ways to
improve our foster care system through the use of technology"); see also William M. Grove et al.,
Clinical Versus MechanicalPrediction:A Meta-Analysis, 12 PSYCHOL. ASSESSMENT 19, 19 (2000)
(finding that mechanical predictions of human health and behavior "were about 10% more accurate
than clinical predictions"). But see Miller, supra note 3, at 118-22 (discussing the technological and
methodological limitations of predictive systems).
6 Jan A.G.M. van Dijk, DigitalDivide Research, Achievements and Shortcomings, 34 POETICS
221, 221-22 (2006).
7 J.J. Prescott, Improving Access to Justice in State Courts with Platform Technology, 70 VAND.
L. REV. 1993, 1996-99 (2017).
8 James E. Cabral et al., Using Technology to Enhance Access to Justice, 26 HARV. J.L.
&
TECH. 241, 246 (2012).

9 See sources cited supra note 2.
10 See O'NEIL, supra note 1, at 213-14
11 Jacob Weisberg, The Digital Poorhouse, N.Y. REV. BOOKS (June 7, 2018), https://
www.nybooks.com/articles/2018/o6/o7/algorithms-digital-poorhouse/ [https://perma.cc/HY8X-FSE 7]
(describing the European Union's General Data Protection Regulation).
2019] DIGITIZING THE CARCERAL STATE 1169'7
While important, these concerns about access to and protection from

big data fail to capture a critical aspect of automation's danger to
society. Government digitization is not inherently or universally bene-
ficial or harmful. Rather, the outcomes of big data depend on the par-
ticular ideologies, aims, and methods that govern its use. In the United
States today, government digitization targets marginalized groups for
tracking and containment in order to exclude them from full democratic
participation. The key features of the technological transformation of
government decisionmaking - big data, automation, and prediction
-
mark a new form of managing populations that reinforces existing social
hierarchies. Without attending to the ways the new state technologies
implement an unjust social order, proposed reforms that focus on mak-
ing them more accurate, visible, or widespread will make oppression
operate more efficiently and appear more benign.
Automating Inequality: How High-Tech Tools Profile, Police, and
Punish the Poorby political scientist Virginia Eubanks significantly ad-
vances our understanding of the threat to social equality posed by gov-
ernment use of big data by examining how it functions in public assis-
tance programs. Based on in-depth investigations of three systems, she
describes how their eligibility determinations, which are based on com-
puterized risk assessments, constitute a modern system for regulating
poor and working-class people. Eubanks systematically explores the
automated eligibility system the state of Indiana adopted for its welfare
services (pp. 39-83), the electronic registry of unhoused people living in
Los Angeles's Skid Row (pp. 84-126), and the statistical model used in
Allegheny County, Pennsylvania, that is an adaptation of a model de-
veloped by researchers in New Zealand to score families according to
132 variables that predict future cases of child maltreatment (pp. 127-
73). Each program illustrates a different aspect of high-tech shadow
mechanisms for regulating the poor: they divert poor people from public
resources (Indiana); classify and criminalize them (Los Angeles); and
punish them based on predictions of their future behavior (Allegheny
County) (pp. 179-82). Eubanks's analysis extends beyond concerns
about data privacy and access to data to unveil "the new digital infra-
structure of poverty relief" constructed with high-tech monitoring tools
(p. 11). Eubanks argues that government agencies are using computer
technologies to "target, track, and punish" poor people in ways that di-
vert attention from the need for social change and erode democracy for
everyone (p. 178). Thus, Automating Inequality expands the literature
criticizing how government use of big data reflects existing social ine-
qualities to show how big data helps agencies structure state programs
to create new punitive and antidemocratic modes of social control.
Eubanks's investigation of digitized public welfare programs refutes
dominant perspectives that view the growth of big data as both a posi-
tive and a negative development. First, Eubanks shows that agencies'
reliance on computer software to generate risk scores doesn't make de-

cisionmaking more objective (pp. 142, 153). The algorithms the agencies
use build biases into decisionmaking processes, shielding agency deter-
minations even more from government accountability (pp. 79, 167). Sec-
ond, Eubanks finds that high-tech tools don't radically improve state
agencies' ability to address poverty (pp. 197-200). Rather, she concludes
that technological innovations reconstitute the nineteenth-century poor-
house as a modern day "digital poorhouse" (p. 12). The contemporary
system is undergirded with the same ideologies that blame poor people
for their disadvantaged social position but upgraded with the ability to
monitor and punish them more efficiently (pp. 12, 17). Today's digital
revolution is but the latest in a history of innovations in poverty man-
agement. "[T]he new regime of data analytics is more evolution than
revolution," Eubanks writes. "It is simply an expansion and continua-
tion of moralistic and punitive poverty management strategies that have
been with us since the 1820s" (p. 37).
Finally, Eubanks's analysis reveals that proposals to bridge the "dig-
ital divide" by assuring greater inclusion in technological progress badly
miss the mark. "I found that poor and working-class women in my
hometown of Troy, New York, were not 'technology poor,' as other
scholars and policy-makers assumed," observes Eubanks. "Data-based
systems were ubiquitous in their lives . . ." (p. 8). Big data critics who
decry a universal invasion of the public's privacy make a similar mis-
take by failing to attend to the way state surveillance concentrates on
poor people with an intensity unknown to middle-class and wealthy
Americans. To tackle the government's expanding reliance on auto-
mated analytics, we must understand it in terms of the particular ways
it is structured to reinforce unjust hierarchies of power.
Eubanks's astute interpretation of big data analytics as poverty man-
agement provides critical yet partial insight into modern day state op-
pression. Automating Inequality shines a needed spotlight on govern-
ment assistance programs the public is more likely to view as benevolent
than as punitive. The key aspects Eubanks highlights - big data col-
lection, automated decisionmaking, and predictive analytics - also
characterize expanding high-tech approaches to criminal justice.12 Tak-
ing account of both civil and criminal state surveillance systems reveals
a coherent carceral form of governance that extends far beyond prisons
to deal with problems caused by structural inequalities by punishing the
very people suffering most from them (p. 177). In addition, all of the
oppressive features Eubanks describes result from racism as much as
disdain for poor people. Computerized risk assessments and determina-
tions regulate people on the basis of race as well as economic status:
12 See infra Part II, pp. 1707-21.

2019] DIGITIZING THE CARCERAL STATE 1699
"Though these new systems have the most destructive and deadly effects
in low-income communities of color, they impact poor and
working-class people across the color line" (p. 12).13 Her central insight,
that digital systems are structured to maintain an unjust class order,
applies equally to the systems' reinforcement of white supremacy.
In this Review, I expand Eubanks's focus on state welfare programs
to include a broader range of systems, with particular attention to the
criminal justice system, and Eubanks's focus on poverty management
to include white supremacy. This more comprehensive analysis illumi-
nates how computerized prediction is fundamental to the ideology,
methods, and impact of the modern mode of social control in the United
States - the digitized carceral state. My analysis of the role big data,
automation, and prediction play in carceral governance proceeds as fol-
lows. Part I provides a holistic portrait of the carceral state, which ex-
tends beyond prisons to encompass multiple institutions that are sup-
posed to serve people's needs. This punitive regime includes criminal
law enforcement, education, and health care, as well as the poverty-
relief and child-protection systems Eubanks describes. By examining
the way the prison, foster care, and welfare systems operate together to
punish black mothers in particular, I show the importance of attending
to racism, along with sexism and classism, in understanding the prolif-
eration of carceral responses to social inequality. Part II explores how
automated decisionmaking works to implement carceral governance.
Despite claims that computerized prediction is objective, its databases
and algorithms build in unequal social structures and ideologies that
create new modes of state surveillance and control in marginalized com-
munities. Adding to Eubanks's focus on poverty management, I argue
that racism is central to the carceral state's reliance on prediction and
embedded in predictive policing. Part III concludes by advocating for
an abolitionist approach to contesting the digitized carceral state. While
agreeing with Eubanks's call to dismantle the digital poorhouse rather
than reform it, I argue that acknowledging racism's crucial role in car-
ceral governance accentuates the need for explicitly antiracist strategies
to build a viable movement for change.
I. THE CARCERAL STATE: BEYOND

PRISONS AND POVERTY MANAGEMENT
The automated system of poverty management described in

Automating Inequality is part of a broader trend in punitive governance.
13 See SAFIYA NOBLE, ALGORITHMS OF OPPRESSION 80-104 (201) (discussing how alleg-
edly neutral search engines like Google discriminate against African Americans); see also RUHA
BENJAMIN, RACE AFTER TECHNOLOGY (forthcoming 2019) (discussing multiple ways in which
emerging technologies encode white supremacy).
In recent decades, U.S. policies have drastically cut social programs and
transferred their services to the private realm of market, family, and
individual while promoting the free-market conditions conducive to
capital accumulation." At the same time federal, state, and local gov-
ernments were dismantling the social safety net, they dramatically ex-
panded their coercive functions, including increasing incarceration at
unprecedented rates.1 5 The regime of state privatization, a critical part
of neoliberalism, entails the simultaneous intensification of brutal state
intervention in the very communities most devastated by the eviscera-
tion of public resources. 16
A growing body of scholarship documents that this punitive regime
extends far beyond prisons. 7 By exposing this trend in poverty relief
programs, Automating Inequality contributes to this literature and de-
tails an important part of a larger carceral regime. All institutions in
the United States increasingly address social inequality by punishing the
communities that are most marginalized by it. " Systems that ostensibly
exist to serve people's needs - health care, education, and public hous-
ing, as well as public assistance and child welfare - have become be-
havior modification programs that regulate the people who rely on
them,19 and these systems resort to a variety of punitive measures to
enforce compliance. In addition, state and federal civil laws, such as
landlord-tenant and banking codes, assist private market actors to im-
pose harsh penalties on members of these same communities.20 Mirror-
ing the two sides of neoliberalism, computerized tools help state agencies
14 See DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM 5-38 (2005).

15 See MICHELLE ALEXANDER, THE NEW JIM CROW 58-94 (2010).
16 See HENRY A. GIROUX, THE TERROR OF NEOLIBERALISM 54-80 (2004); LOIC
WACQUANT, PUNISHING THE POOR 195-208 (2009); see also RUTH WILSON GILMORE,
GOLDEN GULAG 88 (2007) (linking California's prison expansion to surpluses of labor, land, and
financial capital).
17 See, e.g., KAARYN S. GUSTAFSON, CHEATING WELFARE 44-46 (2011); MONIQUE W.
MORRIS, PUSHOUT- THE CRIMINALIZATION OF BLACK GIRLS IN SCHOOLS 135-69 (2015);
JOE SOSS ET AL., DISCIPLINING THE POOR 138-40 (2011); WACQUANT, supra note 16, at 1o8-og.
18 See SOSS ET AL., supra note 17; WACQUANT, supra note 16, at 3.
19 See KHIARA M. BRIDGES, REPRODUCING RACE 23-24, 147-52 (2011); MORRIS, supra
note 17, at 4-5; ANNA MARIE SMITH, WELFARE REFORM AND SEXUAL REGULATION 2-3
(2007); Priscilla A. Ocen, The New Racially Restrictive Covenant: Race, Welfare, and the Policing
of Black Women in Subsidized Housing, 59 UCLA L. REV; 1540, 1565-68 (2012).
20 See MATTHEW DESMOND, EVICTED 305-08 (2016) (arguing that housing-market exploita-
tion "relies on government support," id. at 307); Ocen, supra note 19, at 1568-81 (discussing how
police officers and public officials enforce private citizens' discriminatory complaints against black
women in publicly subsidized housing); Aaron Glantz & Emmanuel Martinez, Modern-Day Red-
lining: How Banks Block People of Colorfrom Homeownership, CHI. TRIB. (Feb. 17, 2018, 2:30
PM), https://www.chicagotribune.com/business/ct-biz-modern-day-redlining-20180215-story.html
[https://perma.cc/AJ8B-83YJ]. Private corporations' increasing use of big data, which is outside
the scope of this article, is also the subject of scholarly concern. See, e.g., O'NEIL, supra note i;
PASQUALE, supra note 2.
both exclude people from public resources and target them for surveil-
lance and punishment. State policing and violence not only occur in
poverty management outside the criminal justice system (pp. 214--15),
but also are entangled with criminal law enforcement to form a cohesive
punitive apparatus.
A defining feature of government agencies' carceral approach is the
imposition of punishment as part of providing needed state support.
People who rely on Medicaid, Temporary Assistance for Needy Families,
and child protective services are denied privacy rights and must permit
otherwise unconstitutional state intrusions into their lives justified by
the theory that they waived their rights as a condition of receiving ben-
efits. 2 1 Welfare receipt comes with intense surveillance by government
agents - including home inspections and behavioral requirements.22
Under the Personal Responsibility and Work Opportunity Reconcilia-
tion Act of 1996,23 "welfare ceased being an entitlement and became
instead a behavior modification program to control the sexual and re-
productive decisions of cash poor mothers." 2 4 Supported by stereotypes
of black "Welfare Queens," Congress sought to deter recipients'
childbearing and pressure them to get married as solutions to female
poverty.25
Soon after the welfare safety net was abandoned in 1996, Congress
passed the Adoption and Safe Familes Act2 6 (ASFA), which stressed the
role of adoption as a way to curb the rise of foster care. "Like welfare
restructuring, ASFA was promoted by the racially explicit vilification of
black mothers." 2 7 ASFA proponents called upon states to "free" black
children for adoption by speeding up termination of their mothers'
rights. 28 At the same time, Congress appropriated diminishing funds
for family preservation and reunification while spending increasing
amounts on foster care and adoption assistance.29 These 1990s reforms
21 See KHIARA M. BRIDGES, THE POVERTY OF PRIVACY RIGHTS 65-68, 73, 85-86 (2017);
Dorothy E. Roberts, Welfare and the Problem of Black Citizenship, 1o5 YALE L.J. 1563, 1576-84
(1996) (book review).
22 See Roberts, supra note 21, at 1576-84.
23 Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of U.S. Code).
24 DOROTHY E. ROBERTS, KILLING THE BLACK BODY, at xvi (2d ed. 2017); see also
GUSTAFSON, supra note 17, at 44-46; GWENDOLYN MINK, WELFARE'S END 7-8, 30-31, 50-5 I,
61, 133-39 (1998); SMITH, supra note 19, at i8, 89, 93-94, 116-i9.
25 ANGE-MARIE HANCOCK, THE POLITICS OF DISGUST 12-14 (2004).
26 Pub. L. No. 1o5-89, 111 Stat. 2115 (1997)(codified as amended in scattered sections of 42 U.S.C.).
27 Dorothy E. Roberts, Critical Race Feminism, in RESEARCH HANDBOOK ON FEMINIST
JURISPRUDENCE 112, 122 (Robin West & Cynthia Grant Bowman eds., 2019) [hereinafter
Roberts, CriticalRace]; see also DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF
CHILD WELFARE 167-68 (2002) [hereinafter ROBERTS, SHATTERED BONDS].
28 See ROBERTS, SHATTERED BONDS, supra note 27, at 10g, 167.
29 See EMILIE STOLTZFUS, CONG. RESEARCH SERV., R
4 3 4 58, CHILD WELFARE: AN OVER-
VIEW OF FEDERAL PROGRAMS AND THEIR CURRENT FUNDING 1, 5-6, 13 (2017),
https://fas.org/sgp/crs/misc/R43458.pdf [https://perma.cc/F7YR-XJYR].
were neoliberal measures that replaced public aid for struggling families
with reliance on low-wage work, marriage, and adoptive parents to meet
families' needs.
As Eubanks observes, "[p]oor and working-class families feel forced
to trade their rights to privacy, protection from unreasonable searches,
and due process for a chance at the resources and services they need to
keep their children safe" (p. 158). The child welfare system exerts a
particularly onerous penalty for parents to receive state resources to care
for their children. For many parents involved in the system, the price
of accessing resources from child welfare agencies is relinquishing cus-
tody of their children (p. 161).30 Social workers have at their disposal
an assortment of assistance mechanisms for families, including cash pay-
ments, food stamps, furniture, parent counseling, and drug treatment
services; but most of this assistance is available only to parents whose
children have been placed in foster care. 31 Eubanks found that the
Allegheny County parents she interviewed had "deeply mixed feelings"
about the agency's punitive approach: "While they describe frightening,
frustrating experiences, they are also grateful for the support and re-
sources they received" (p. 152).
I discovered the same reaction in my 2006 study of attitudes about
the Department of Children and Family Services (DCFS) in Woodlawn,
a predominantly black neighborhood in Chicago with an extremely high
rate of child welfare agency involvement.32 I called this reaction the
paradox of neighborhood involvement: "Although respondents criticized
the agency's damage to neighborhood relationships, they nevertheless
recognized neighborhood reliance on DCFS to meet the material needs
of its struggling families."3 3 Thus, most of the women I interviewed
called for more agency involvement in Woodlawn to gain access to
needed resources, but with "less disruption of family relationships." 3 4
Another central aspect of the widening carceral web is the entangle-
ment of public welfare services with the criminal justice system. Pov-
erty programs not only seem like criminal law enforcement; they also
operate as pathways to prison. Police officers are increasingly the first
30 Dorothy E. Roberts, Kinship Care and the Price of State Support for Children, 76 CHI.-KENT
L. REV; 1619, 1621, 1628 (2Q01); Dorothy E. Roberts, The Racial Geography of Child Welfare: To-
ward a New Research Paradigm, 87 CHILD WELFARE 125, 145-46 (2008) [hereinafter Roberts,
Racial Geography].
31 See State-by-State Data, CASEY FAM. PROGRAMS (May 16, 2018), https://
www.casey.org/state-data/ [https://perma.cc/8BEN-WBE2] ("Most states currently use the bulk of
the $7.3 billion in dedicated federal child welfare funding only for services related to foster care.").
32 Roberts, Racial Geography, supra note 30, at 126-28.
33 Id. at 141.
34 Id. at 145.
2019] DIGITIZING THE CARCERAL STATE 1'703
responders to crises caused by social needs.35 As Eubanks notes, "[t]here

is a long history of social services and the police collaborating to crimi-
nalize the poor in the United States" (p. 116). One of the homeless people
she interviewed in Los Angeles, Gary Boatwright, who at age sixty-four
had lived on and off the street for ten years, had regular run-ins with
law enforcement (pp. 98-100). "In five years, he racked up 25 separate
tickets for crimes associated with homelessness: unlawfully entering or
remaining in a park, failure to leave land as ordered by a peace officer,
storage of personal property in public places, jaywalking, littering, and
unauthorized removal of a shopping cart, among others" (pp. taa-ai).
The reason for this regular involvement with law enforcement is that
many of the basic conditions of being homeless are also prohibited as
crimes (p. 117).
Receipt of welfare benefits is also increasingly criminalized. Public
assistance offices are patrolled by security guards and staff frequently
call police to settle disagreements with recipients.36 In December 2018,
a guard ordered Jazmine Headley, age twenty-three, to move from the
floor of a New York City public-benefits office where she sat down with
her one-year-old son after waiting hours to find out why her child-care
benefits had been stopped.37 When she refused, police were called to
arrest her. A video shows two officers restraining Headley while two
guards yank the screaming toddler from her arms. Headley was charged
with resisting arrest and child endangerment and spent several days
locked in a Rikers Island cell, for this and other unrelated charges, be-
fore attorneys were able to get the charges dropped.3 8
Welfare clients are not only treated like criminals; they are also
prosecuted for crimes they might commit in relation to the receipt of
public assistance, such as welfare fraud.3 9 Welfare fraud allegations can
35 See Debanjan Roychoudhury, On Second Sight, Surveillance and the Black Planet:Notes on
a New Framework, in THE NEW BLACK SOCIOLOGISTS 210, 212 (Marcus Anthony Hunter ed.,
2018) (citing Amy E. Lerman & Vesla M. Weaver, Staying Out of Sight? ConcentratedPolicing and
Local PoliticalAction, 651 ANNALS AM. ACAD. POL. & SOC. SCI. 202 (2014)) ("Police contact is
the most consistent form of interaction with the state in many [black] communities."); Zusha
Elinson, When Mental-Health Experts, Not Police, Are the First Responders, WALL ST. J. (Nov.
24, 2018, io:oo AM), https://www.wsj.com/articles/when-mental-health-experts-not-police-are-the-
first-responders-154307i6o0 [https://perma.cc/gCQC-JYJZ] (noting that in most American cities,
police typically respond to mental health crises involving poor and unhoused people).
36 See Ashley Southall & Nikita Stewart, They Grabbed Her Baby and Arrested Her. Now
Jazmine Headley Is Speaking Out., N.Y. TIMES (Dec. 16, 2018), https://nyti.ms/2Gkwx2g
[https://perma.cc/gAD4-6gFW] ("Since January 2017, law enforcement agencies have been called to
food-stamp offices across the city 2,212 times .... ").
37 See id.
38 See Ben Mathis-Lilley, Charges Dropped Against Motherfrom Viral Arrest Video, but She's
Still in Jail (UPDATE: She's Been Ordered Released), SLATE (Dec. 11, 2018, 2:43 PM),
https://slate.com/news-and-politics/2018/12/jazmine-headley-charges-dropped-rikers.html [https://
perma.cc/7EJG-X5D9].
39 GUSTAFSON, supra note 17, at 63-70.
1'704 HARVARD LAW REVIEW (Vol. 132:1695
lead not only to civil penalties, but also to felony charges and prison
sentences. 4 0 Welfare and law enforcement agencies routinely share
client records without any judicial process. 4 1 Eubanks compares the
Los Angeles coordinated entry project's transfer of the homeless popu-
lation records to police as a sting operation that often triggers the arrest
and incarceration of unhoused people (pp. 116-17). Similarly, child pro-
tective services and police officers forcibly remove children from their
homes,4 2 police officers report child maltreatment discovered while in-
vestigating crimes,43 and child neglect, which is confused with effects of
poverty,44 can be the basis of criminal charges.
The carceral state extends beyond the public assistance programs
Eubanks discusses. Public schools, too, are now common sites for police
surveillance, arrest, and detention of children. 45 The school-to-prison
pipeline is a well-documented pathway in the expanding carceral state
that is especially perilous for black children.4 6 The results of a recent
survey showed that the probability of a school's using a variety of secu-
rity measures (including metal detectors, school police and security
guards, locked gates, and "random sweeps") was two to eighteen times
higher for schools with a student body made up of a majority of people
of color than for schools where white children made up more than eighty
percent of the student body.4 Children attending these heavily policed
schools are often arrested for minor misbehaviors like "pushing other
students . . . or disobeying a teacher." 4 8 The carceral state also runs a
40 Id.; see also Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black
Mothers, 59 UCLA L. REV. 1474, 1480 (2012).
41 Kaaryn Gustafson, The Criminalization of Poverty, 9 J. CRIM. L. & CRIMINOLOGY
643,
66g (2009).
42 See TINA LEE, CATCHING A CASE 79-83, 118-21 (2Q16); Paul Chill, Burden of ProofBegone:
The Pernicious Effect of Emergency Removal in Child Protective Proceedings, 41 FAM. CT. REV.
457, 457 (2003).
43 See Katie Wedell, Ohio Is Only State Where Police Are Not Required to Report Child Abuse,
DAYTON DAILY NEWS (Nov. 15, 2017), https://www.aje.com/news/national/ohio-only-state-where-
police-are-not-required-report-child-abuse/61ftfl7jUSkiNdqKtIisCI/ [https://perma.cc/XAB8-WKRV].
44 See LEE, supra note 42, at g-io, 107; ROBERTS, SHATTERED BONDS, supra note 27, at 33-39.
45 See MORRIS, supra note 17, at 66-83; CARLA SHEDD, UNEQUAL CITY 80-119 (2015) (de-
scribing the "school disciplinary superstructure," id. at io8, that implements a "universal carceral
apparatus," id. at 84, at predominantly black public high schools in Chicago).
46 See, e.g., NANCY A. HEITZEG, THE SCHOOL-TO-PRISON PIPELINE 35-36 (2016); Libby
Nelson & Dara Lind, The School to Prison Pipeline, Explained, JUST. POL'Y INST. (Feb. 24, 2015),
http://www.justicepolicy.org/news/8775 [https://perma.cc/D6GF-gT 7 Y]; NAACP LEGAL DEF.
&
EDUC. FUND, INC., DISMANTLING THE SCHOOL-TO-PRISON PIPELINE, https://

www.naacpldf.org/wp-content/uploads/Dismantling_theSchool_to_PrisonPipeline__Criminal-
Justi ce_.pdf [https://perma.cc/366J-TGML].
47 See Jason P. Nance, Student Surveillance, Racial Inequalities, and Implicit Racial Bias, 66
EMORY L.J. 765, 810-11 (2017); see also Melinda D. Anderson, When School Feels Like Prison,
THE ATLANTIC (Sept. 12, 2016), https://www.theatlantic.com/education/archive/2o16/og/when-
school-feels-like-prison/499556/ [https://perma.cc/5GTT-PGLV].
48 NAACP LEGAL DEF. & EDUC. FUND, INC., supra note 46.
foster-care-to-prison pipeline: children living in or aging out of foster

care are at high risk of incarceration in juvenile detention and adult
prisons because of vulnerabilities created by foster care itself.49 For ex-
ample, child welfare authorities frequently have foster children arrested
when they run away or break disciplinary rules.so
Even the health care system belongs to the carceral state. Law en-
forcement treats the health problem of drug addiction as a criminal of-
fense. Supported in the 198as and 1990s by pregnant-crack-addict and
crack-baby myths, prosecutors charged hundreds of black women with
fetal crimes and child protection agents removed thousands of black
newborns from their mothers' care.5 1 For many cash-poor Americans,
the only place to get mental health care is behind bars. Jails and prisons
are some of the largest state providers of mental health care in the
United States.5 2 Hospital emergency room staff frequently deny services
to poor patients, especially poor patients of color, and turn them over to
the police because they suspect the patients of drug seeking or other
criminal behavior.53 In December 2015, police officers forcibly removed
Barbara Dawson, age fifty-seven, from a Florida hospital 5 4 and tried to
shove her in a police car while she insisted that she could not breathe.55
A short time later, Ms. Dawson died from a blood clot in her lung.5 6 In
49 See Melissa Jonson-Reid & Richard P. Barth, From Placement to Prison:The Path to Adoles-
cent Incarcerationfrom Child Welfare Supervised Foster or Group Care, 22 CHILD. & YOUTH
SERVS. REV. 493, 499-504 (2000); Rachel Anspach, The Foster Care to Prison Pipeline: What It Is
and How It Works, TEEN VOGUE (May 25, 2018), https://www.teenvogue.com/story/the-foster-
care-to-prison-pipeline-what-it-is-and-how-it-works [https://perma.cc/WTg Q-THCA].
50 See, e.g., Ali Watkins, She Ran Away from Foster Care. She Ended Up in Handcuffs and Leg
Irons., N.Y. TIMES (Dec. 6, 2018), https://nyti.ms/2zVuVqf [https://perma.cc/BK3U-gGM3].
51 DOROTHY E. ROBERTS, KILLING THE BLACK BODY i50-62
(ig9).
52 See, e.g., Matt Ford, America's Largest Mental Hospital Is a Jail, THE ATLANTIC (June
8,
2005), https://www.theatlantic.com/politics/archive/2o15/o6/americas-largest-mental-hospital-is-a-
jail/395012/ [https://perma.cc/g5PA-GBG4] (reporting on the country's history of deinstitutionaliza-
tion and incarceration of the mentally ill); see also Jason Schnittker et al., Incarcerationand the
Health of the African American Community, 8 DU BoIS REV. 133, 135 (2011) (discussing evidence
that "incarceration negatively impacts health" and "any positive short-term effects of incarceration
are likely outweighed by its long-term negative effects").
53 See Armando Lara-Millin, Public Emergency Room Overcrowding in the Era of Mass Im-
prisonment, 79 AM. SOC. REV. 866, 873-77 (2014).
54 Shamar Walters & Jacquellena Carrero, BarbaraDawson, Florida Woman, Dies After Being
Removed from Hospital, NBC NEWS (Dec. 23, 2015, 9:oo PM), https://www.nbcnews.com/news/us-
news/barbara-dawson-florida-woman-dies-after-being-removed-hospital-n485186 [https://perma.cc/
QAS 7 -XRN8].
55 Christine Hauser, Recordings Add Detail in Death of Woman Forcedfrom Florida Hospital,
N.Y. TIMES (Jan. 7, 2006), https://nyti.ms/imJlJMb [https://perma.cc/N68X-4CPG]; Alicia Turner,
BarbaraDawson Case: An Inside Look at Calhoun-LibertyHospital, WCTV (May 16, 2006, 1:14
PM), https://www.wctv.tv/home/headlines/Attorneys-Plan-Release-of-Dash-Cam-Footage-in-Dawson-
Case-364268290.html [https://perma.cc/9 7 US-Q2MF].
56 Jessica Eggert, Florida Woman BarbaraDawson Dies After Police Removed Herfrom Hos-
pital in Handcuffs, MIC (Dec. 23, 2015), https://mic.com/articles/1311go/florida-woman-barbara-
ii7o6 HARVARD LAW REVIEW (Vol. 132:1695
short, multiple state systems purportedly designed to serve human

needs, along with prisons, operate as mutually supporting aspects of
carceral governance.
Adding the intersections of racism and sexism to Eubanks's focus on
poverty is also critical to understanding the carceral regime. I have
argued elsewhere that the prison, foster care, and welfare systems oper-
ate together to punish black mothers in particular, and that this systemic
intersection in black mothers' lives is crucial to the carceral state's pro-
liferation.5 7 Cash-poor and low-income black mothers are dispropor-
tionately involved in all of these systems and are subjected to the harsh-
est supervision.5 8 Indeed, we can see black mothers at the epicenter of
a multi-institutional apparatus of surveillance, social control, and puni-
tive regulation. In response to growing black female involvement, these
systems have cut back on supportive family services while intensifying
their punitive role.5 9 Open segregation in welfare services and public
aid schemes prior to the civil rights movement meant that most black
families could not participate.60 These systems have become more pu-
nitive since the 1970s as black mothers demanded their rights to gov-
ernment entitlements and made up increasing shares of the recipients
-
and as the black female prison population rose exponentially. 6 1 Welfare
benefits became stingier and burdened with sexual and reproductive
regulations, work requirements, and racialized stigma. 6 2 By 2000, when
black children made up the largest group in foster care, "the number of
children receiving child welfare services [in their homes] ha[d] declined
dramatically, while the foster care population ha[d] skyrocketed." 63 This
led state and federal governments to spend more of their child welfare
budgets on punitive out-of-home services, rather than on less disruptive
dawson-dies-after-police-removed-her-from-hospital-in-handcuffs#.xdegTtAkW [https://perma.cc/
HR2 3 -8CYY].
57 See ROBERTS, SHATTERED BONDS, supra note 27, at 200-01; Dorothy Roberts, Complicat-
ing the Triangle of Race, Class and State: The Insights of Black Feminists, 37 ETHNIC & RACIAL
STUD. 1776, 1778-80 (2014); Roberts, supra note 40, at 1492; see also BETH E. RICHIE, AR-
RESTED JUSTICE 112-18 (2012); ANDREA J. RITCHIE, INVISIBLE No MORE 165-82 (2017);
Kimberl6 W. Crenshaw, From Private Violence to Mass Incarceration: Thinking Intersectionally
About Women, Race, and Social Control, 59 UCLA L. REV. 1418, 1426-27 (2012).
58 See Roberts, supra note 40, at 1476-77, 1486-87.
59 Id. at 1485.
60 See ROBERTS, SHATTERED BONDS, supra note 27, at 7; JILL QUADAGNO, THE COLOR
OF WELFARE 19-20 (1996); Roberts, supra note 40, at 1483.
61 ROBERTS, SHATTERED BONDS, supra note 27, at 14-16; Facts About the Over-
Incarceration of Women in the United States, ACLU, https://www.aclu.org/other/facts-about-
over-incarceration-women-united-states [https://perma.cc/8GgL-MT7A].
62 ROBERTS, SHATTERED BONDS, supra note 27, at 14-16.
63 Id. at 15; see also U.S. DEP'T OF HEALTH & HUMAN SERVS., THE AFCARS REPORT
(2006), https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport12.pdf [https://permacc/7ZH2-
S2 4 Y] (finding that, in the 2000 fiscal year, 39% of children in foster care were black, 38% were
white, 15% were Hispanic, and 1% were Asian).
2019] DIGITIZING THE CARCERAL STATE 1'70'7
in-home services. 6 4 The choice to fund punitive rather than supportive

programs has led to pervasive law enforcement, public assistance, and
child welfare surveillance in poor, black communities. At the same time,
appeals to longstanding stereotypes of black procreative pathology and
maternal irresponsibility generated public support for these political
choices.6 5
II. BUILT-IN INEQUALITY
Placing the public welfare programs Eubanks examines in the con-

text of the carceral state widens the inquiry into the way big data func-
tions to serve punitive government ends. How does digitization work
to implement more effectively a carceral approach to governance? One
of Eubanks's chief insights about automated decisionmaking is that it is
not the objective process the government claims it to be. Criticizing
computerized scores for being erroneous or biased also fails to grasp the
way they are structured to promote the carceral regime. "Technologies
of poverty management are not neutral," Eubanks writes (p. 9). "They
are shaped by our nation's fear of economic insecurity and hatred of the
poor; they in turn shape the politics and experience of poverty" (p. 9).
Politics shapes the carceral state's use of computerized tools in two main
ways: (i) unequal political structures are built into the data collected
and the algorithms that interpret that data; and (2) state agencies then
use the results according to a predetermined philosophy to punish in-
stead of support marginalized communities. Taking racism and white
supremacy into account is critical to understanding the ideologies and
structures that govern the digitized carceral state.
A. More than Bias: Big Data's Social and Ideological Structure
In her devastating expos6 of big data's dangers, Weapons of Math

Destruction:How Big Data Increases Inequality and Threatens Democ-
racy, data scientist Cathy O'Neil writes that "[m]odels are opinions em-
bedded in mathematics." 66 Contrary to the claim that computerized al-
gorithms are more objective than human decisionmakers, O'Neil points
out that the algorithms reflect the judgments of the programmers who
create them. Eubanks's investigation of the technological tools used by
poverty programs shows that they contain more than the accumulation
of biased human opinions. Rather, the unequal structure of institutions
is coded into algorithms. Not only does Allegheny County's risk assess-
ment model include only parents who receive public assistance, but also
64 ROBERTS, SHATTERED BONDS, supra note 27, at 15; Roberts, supra note 40, at 1484.
65 See, e.g., THE SENTENCING PROJECT, RACE AND PUNISHMENT RACIAL PERCEPTIONS
OF CRIME AND SUPPORT FOR PUNITIVE POLICIES 7-12 (2014); Roberts, supra note 40, at 1492.
66 O'NEIL, supra note 1,
at 21.
the staff of every organization those parents accessed for help with their
parenting is made up of mandated reporters (pp. 158, i6a).
As critical race scholars have noted, racism is systemic, structural,
and institutionalized. 67 Centuries of discriminatory laws, policies, and
practices designed to privilege white people and disadvantage people of
color have resulted in institutions that produce unequal outcomes even
apart from the prejudiced decisions of individual state agents. Residen-
tial segregation, for example, structures the lives of most black people
to make them more vulnerable to profiling by police, 6 8 environmental
toxins, 6 9 inferior schools, 7 0 and inadequate housing.7 1 Computerized
risk assessments are based on data taken from a social context that has
already been shaped by hierarchies of race, class, and gender. Predictive
algorithms package this unequal social structure into a score that neces-
sarily reflects individuals' privileged or disadvantaged positions. The
aphorism "garbage in, garbage out" captures an important aspect of data
collection but doesn't capture the nature of built-in structural bias. In-
equality in, inequality out is more apt.
At times, Eubanks casts the problem with automated prediction as
producing erroneous determinations. She opens the chapter on
Allegheny County's risk assessment tool with a comparison of scores for
children from two different families that appear wrong to her. "In these
cases, the model does not seem to meet a commonsense standard for
providing information useful enough to guide call screeners' decision-
making" (p, 142). What's more, because the standards for child mal-
treatment are notoriously ambiguous, the system doesn't generate accu-
rate enough results. "A model's predictive ability is compromised when
outcome variables are subjective" (p. 146). But, as Eubanks recognizes
elsewhere, the problem with computerized risk assessments is not that
they produce the wrong score. The problem is they are used to aid a
fundamentally wrong approach to families' needs.
67 See, e.g., EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS 8 (2003) ("Whereas for
most whites racism is prejudice, for most people of color racism is systemic or institutionalized.");
MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES 137 ( d
3
ed. 2015) ("What we call racial projects have interacted over half a millennium to build up the social
structures of race and racism.").
68 See Albert J. Meehan & Michael C. Ponder, Race and Place: The Ecology of Racial Profiling
African American Motorists, 19 JUST. Q. 399, 400-01 (2002). See generally PAUL BUTLER,
CHOKEHOLD (2017).
69 See Myron Orfield, Segregation and Environmental Justice, 7 MINN. J.L. SCI. & TECH. 147,
152 (2005).
70 See EVE L. EWING, GHOSTS IN THE SCHOOLYARD 17-27 (2018); NOLIWE ROOKS, CUT-
TING SCHOOL 20 (2017); Erika K. Wilson, The New School Segregation, 102 CORNELL L. REV.
139, 155-56 (2016).
71 See RICHARD ROTHSTEIN, THE COLOR OF LAW 17-18 (2018); Emily Rosenbaum, Racial/
Ethnic Differences in Home Ownership and Housing Quality, 1991, 43 SOC. PROBS. 403, 417 (1996).
Eubanks shows that Allegheny County's software model, the Alle-

gheny Family Screening Tool (AFST), was structured to be biased
against poor families. Like U.S. child welfare policy generally, "[t]he
AFST sees the use of public services as a risk to children. A quarter of
the predictive variables in the AFST are direct measures of poverty. . ."
(p. 156).72 Because "[t]he data set it utilizes contains only information
about families who access public services," she notes, "it may be missing
key factors that influence abuse and neglect" (p. 146). She goes on to
explain: "Because variables describing [non-public services parents'] be-
havior have not been defined or included in the regression, crucial pieces
of the child maltreatment puzzle might be omitted from the AFST" (p.
147). Eubanks correctly notes that child protective services fail to
acknowledge the risky behaviors of wealthier families. But the problem
with the AFST is not missing data. The problem is that it is structured
to pull poor families into its carceral supervision. The system's aim isn't
to understand and address children's needs; its aim is to regulate poor
families. Wealthy families' maltreatment isn't missed; it's irrelevant.1
These assumptions directed at poor families exclusively governed the
underlying philosophies and aims of the other welfare programs
Eubanks studied - to monitor, accuse, and exclude. "In a system ded-
icated [instead] to supporting poor and working-class people's
self-determination," the same high-tech tools could "guarantee that [poor
and working-class people] attain all the benefits they are entitled to by
law" by affording "more precise measuring and tracking, better sharing
of information, and increased visibility of targeted populations" (pp. 81-
82). Instead, data collection, automation, and predictive analytics facil-
itate the carceral mission to deal with social inequality by punishing the
communities marginalized by it.
B. Automation Is Antidemocratic
A corollary to the argument that automated decisionmaking is less

biased is the argument that it is more transparent. Big data proponents
point out not only that human actors are swayed by their prejudices but
also that those prejudices aren't discernable.7 4 While acknowledging
72 See also Dorothy Roberts & Lisa Sangoi, Black Families Matter: How the Child Welfare Sys-
tem Punishes Poor Families of Color, THE APPEAL (Mar. 26, 2018), https://theappeal.org/black-
families-matter-how-the-child-welfare-system-punishes-poor-families-of-color-33 ad2oe2 882 e/
[https://perma.cc/U6A2-VPg4].
73 See Carole Jenny et al., Analysis of Missed Cases of Abusive Head Trauma, 282 JAMA 621,
623 (1999) (finding doctors missed abusive head trauma significantly more often in white children
than in children of color).
74 See Anna Maria Barry-Jester et al., The New Science of Sentencing: Should Prison Sentences
Be Based on Crimes that Haven't Been Committed Yet?, MARSHALL PROJECT (Aug. 4, 2015),
https://www.themarshallproject.org/2015/o8/o4/the-new-science-of-sentencing [https://perma.cc/
F 3 JQ-YS 4 Q] (providing a quotation from Adam Gelb, director of the public safety performance
the longstanding bias in child welfare and public assistance deci-

sionmaking, Eubanks compellingly refutes this claim by arguing that
automated decisionmaking leaves less room for democratic participa-
tion. "The widespread use of these systems impacts the quality of de-
mocracy for us all," she writes (p. 12). Eubanks reminds us that remov-
ing human discretion from sentencing only compounded racial
disparities in the criminal justice system (pp. 8o-8i). "Tough on crime"
laws that established mandatory minimum sentences tying judges'
hands helped to fuel the astronomical rise in prison rates. A 2000 report
concludes: "Minorities fare much worse under mandatory sentencing
laws and guidelines than they did under a system favoring judicial dis-
cretion. By depriving judges of the ultimate authority to impose just
sentences, mandatory sentencing laws and guidelines put sentencing on
auto-pilot" (p. 81).75
Automated state systems erode democracy in part because they op-
erate as a "black box" of secret surveillance, data collection, and algo-
rithms hidden from the public. 76 Because the inputs into big data tech-
nologies aren't transparent, their operations aren't subject to public
scrutiny and their outputs evade government accountability.7 7 As
Eubanks puts it, automated decisionmaking constitutes "a thousand in-
visible human choices . . . under a cloak of evidence-based objectivity
and infallibility" (p. 168). Many government entities purchase software
and hire private tech companies to program computers and provide
other technical guidance. The ability of government agents to inform
the public about automated decisionmaking is severely limited by the
agents' own lack of technological expertise. 7
'
Moreover, private companies' technologies are typically proprietary

trade secrets and safeguarded from disclosure by intellectual property
law.7 9 Besides this enforced lack of transparency, the computer's deci-
sionmaking process is shrouded in deeper layers of obscurity arising
project at the Pew Charitable Trusts, stating that "[a]nything that's on paper is more transparent
than the system we had in the past.. . . There was no transparency, and decisions could be based
on just about any bias or prejudice").
75 The author quotes LEADERSHIP CONFERENCE ON CIVIL RIGHTS, JUSTICE ON TRIAL
22 (2ooo), http://www.protectcivilrights.org/pdf/reports/justice.pdf [https://perma.cc/7DEL-LLH2].
76 See Miller, supra note 3, at 136-37.
77 David ROBINSON & HARLAN YU, CIVIL RIGHTS, BIG DATA, AND OUR ALGORITHMIC
FUTURE 20 (2014); Elizabeth E. Joh, The New Surveillance Discretion:Automated Suspicion, Big
Data, and Policing, ia HARV. L. & POLY REV. 15, 40-42 (2o16).
78 Andrew Guthrie Ferguson, Illuminating Black Data Policing, 15 OHIO ST. J. CRIM. L. 503,
510 (2018).
79 See Elizabeth E. Joh, The Undue Influence of Surveillance Technology Companies on Polic-
ing, 92 N.Y.U. L. REV. ONLINE 101, 119-20 (2017); Mitch Smith, In Wisconsin, a Backlash Against
Using Data to Foretell Defendants' Futures, N.Y. TIMES (June 22, 2Q16), https://nyti.ms/28Q3xiK
[https://perma.cc/JN6B-3LLU].
from the way machine learning and artificial intelligence work.8 0 In the
latest big data models, computers are programmed with artificial intel-
ligence to continuously "learn from past data without human input,"1
so it may be impossible to untangle the self-taught process by disclosing
the original programmer's instructions.12 Even the experts who de-
signed the models may not be able to explain the scores they generate.
As Jacob Weisberg notes: "If machines are learning on their own, human
accountability becomes trickier to ascribe."8 3 Technology companies
whose tools are used by customers in discriminatory ways tend to at-
tribute the problem to a technical glitch rather than an ethical failure.8 4
Eubanks also turns on its head the claim that machines are fairer
than human decisionmakers because they are more objective. Digitized
systems are antidemocratic, Eubanks argues, because they remove hu-
man discretion. She points to substituting online applications for face-
to-face interactions, electronic communications for in-person social
work, and automatic investigations based on computer-generated risk
scores for screening based on intake workers' professional judgments
(pp. 47, 62, 142). Recognizing that state agents' determinations have
been marked by racism, sexism, and hatred for poor people, Eubanks
nevertheless finds them more open to challenge than automated forms
of inequality. She explains: "I find the philosophy that sees human be-
ings as unknowable black boxes and machines as transparent deeply
troubling. It seems to me a worldview that surrenders any attempt at
empathy and forecloses the possibility of ethical development. . . . [It is]
an admission that we have abandoned a social commitment to try to
understand each other . . . [and] the potential for connection and com-
munity" (p. 168). Parents involved with child protective services told
Eubanks "they'd rather have an imperfect person making decisions
about their families than a flawless computer. 'You can teach people
how you want to be treated' . . ." (pp. 166-67).
As I discussed above, anti-black racism poses an especially daunting
obstacle to such appeals to our common humanity, an obstacle Eubanks
may underestimate. The vilification and scapegoating of black mothers
have served to foster support among poor and working class white peo-
ple for punitive policies that damage their own economic well-being.
Yet Eubanks is correct that human biases can be exposed, resisted, and
80 Ferguson, supra note 78, at 5o9.

81 Id. at 5o9.
82 Id. at 512. But see Elaine Angelino et al., Learning Certifiably Optimal Rule Lists for Cate-
goricalData, i8 J. MACHINE LEARNING RES. 1, 6-29, 46-47 (2018) (presenting an algorithm that
produces rule lists that are comparable in accuracy to the Correctional Offender Management Pro-
filing for Alternative Sanctions (COMPAS) proprietary risk prediction tool but are completely
interpretable).
83 Weisberg, supra note ii.
84 See, e.g., Mary Hodder, Why Amazon Didn't Just Have a Glitch, TECHCRUNCH (Apr.
14,
2009), https://techcrunch.com/2009/04/14/guest-post-why-amazon-didnt-just-have-a-glitch/ [https://
perma.cc/DN7B-86HY].
potentially transformed, whereas computer algorithms cement biases

into automated systems. The digitized carceral state "concentrates ad-
ministrative power in the hands of a small elite" who have control over
the algorithms, squelching opportunities for appeals to justice, mass re-
sistance, and social change (p. 200).
C. Racism, Prediction, and the CarceralState
Prediction is a defining feature of the carceral state. Automated risk

assessments are not only a way to make government decisionmaking
more effective; they also reflect and implement a carceral approach to
social problems. Algorithms that predict future conduct reinforce the
state's control over marginalized populations by legitimizing punish-
ment without the need to prove individual culpability. Moreover, pre-
dictive models that rely on data structured by existing racial inequality
predetermine a future that corresponds to the past racial order. Predic-
tion is also fundamental to white supremacy because it both helps to
obscure structural racism and is essential to the very concept of race.
Understanding the importance of prediction to digitizing the carceral
state further accentuates the centrality of racism in this modern form of
governance.
New predictive models employed by government agencies are actu-
arial rather than clinical. 5 Modern criminal justice, public assistance,
and foster care systems are not predicting risk based on subjective opin-
ions of experts about individuals' propensities. Rather, they rely on ac-
tuarial methods that look for "statistical correlations between group
traits and group criminal offending rates," as well as other salient be-
haviors.86 Eubanks makes a similar distinction between prior forms of
surveillance and today's high-tech monitoring of poor people. In the
past, state agents identified risky individuals who needed to be watched.
"In contrast, in new data-based surveillance, the target often emerges
from the data. The targeting comes after the data collection, not before"
(p. 122). State agencies' ability to apply sophisticated analytical tools to
massive amounts of data collected through sweeping surveillance has
radically transformed the very nature of prediction.8 7
Reliance on this actuarial form of big data analysis is critical to the
expansion of the carceral regime. Under a carceral approach, the state's
aim is to control populations rather than to adjudicate individual guilt
or innocence, to manage social inequalities rather than to aid those who
are suffering from them. 8 Risk assessment has been detached from the
85 HARCOURT, supra note 2, at 77-107; Miller, supra note 3, at 114.

86 Miller, supra note 3, at 114 (quoting HARCOURT, supra note 2, at i8).
87 See id.
88 See ISSA KOHLER-HAUSMANN, MISDEMEANORLAND 4-5 (2018).
"bounds set by moral concerns about culpability" to match the carceral

state's objective to maintain the unequal social order through surveil-
lance, regulation, and punishment. 8 9 Computerized predictions identify
people for government agencies to regulate from the moment of birth,
without any regard to their actual responsibility for causing social harm.
It is their devalued status in the political hierarchy that makes them
threats to the carceral state and subject to its control.90 Police gang
databases have included toddlers. 91 A California county has instituted
a probation program that monitors children identified to be
"pre-delinquent." 9 2 A 20111 paper concluded "a prenatal maltreatment-
predicting algorithm was theoretically possible: 'A risk assessment tool
that could be used on the day of birth to identify those children at great-
est risk of maltreatment holds great value"' (p. 137).93
As discussed above, all of these predictive tools are structured to
target poor communities of color. Moreover, their forecasts of the future
are based on data that were produced by existing racial discrimination
in systems such as policing, housing, education, health care, and public
assistance. The future predicted by today's algorithms, therefore, is pre-
determined to correspond to past racial inequality.94 Thus, prediction
becomes a way for the carceral state to foreclose visions of a more hu-
mane future.
Although big data and predictive algorithms facilitate the carceral
state's mission in new ways, prediction has long been one of racism's
central features. Race itself is a form of state categorization that ranks
89 Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race, and Recidivism: Predictive
Bias and DisparateImpact, 54 CRIMINOLOGY 68o, 682-83 (2Q16) ("Risk assessment should never
be used to sentence offenders to more time than they morally deserve." Id. at 683.); see also John
Monahan & Jennifer L. Skeem, Risk Redux: The Resurgence of Risk Assessment in Criminal Sanc-
tioning, 26 FED. SENT'G REP. 158, 158 (2014).
90 See OSCAR H. GANDY, JR., THE PANOPTIC SORT 29-33 (1993) (discussing theories of class
consciousness).
91 Beware of Gangster Babies: Calif; Database Slammed, CBS NEWS (Aug. 15, 2Q16, 9:31 AM),
https://www. cbsnews.com/news/calgang-californi a-gang-database-slammed-listing-babies-privacy-
concerns/ [https://perma.cc/L3MP-SFK8].
92 Carimah Townes, California County Law Enforcement Puts Kids on Probationfor Bad
Grades, THE APPEAL (July 10, 2018), https://theappeal.org/california-county-law-enforcement-
puts-kids-on-probation-for-bad-grades/ [https://perma.cc/U2JV-KV5L].
93 The author quotes Emily Putnam-Hornstein & Barbara Needell, Predictorsof Child Protec-
tive Service Contact Between Birth and Age Five: An Examination of California's2002 Birth Co-
hort, 33 CHILD. & YOUTH SERVS. REV. 2400, 2406 (2011).
94 See WENDY HUI KYONG CHUN, PROGRAMMED VISIONS 9 (2013) (noting computer soft-
ware creates "programmable visions that extrapolate the future - or, more precisely, a future
-
based on the past").

1'714 HARVARD LAW REVIEW (Vol. 132:1695
people by supposedly innate traits that are claimed to predict their be-
havior and character. 95 Prominent stereotypes about black people por-
tray them as prone to crime, welfare dependence, poor health, and low
intelligence. Today's computerized predictive policing reincarnates in
high-tech garb "vague loitering and vagrancy laws [that historically
gave] license to police officers to arrest people purely on the basis of
race-based suspicion," categorically identifying black people as lawless
apart from their criminal conduct. 96
It is telling that, as Eubanks notes, "[e]ugenics created the first data-
base of the poor" (p. 22). Based on the belief that socially relevant traits
are inherited, American eugenicists catalogued socioeconomic classes
and races according to predictions of their social value.97 These predic-
tions were the basis of repressive social policies such as incarceration,
compelled sterilization, and immigration exclusions of people considered
to have defective heredity. In its 1927 decision Buck v. Bell,98 the U.S.
Supreme Court upheld Virginia's mandatory sterilization law by ap-
proving eugenic predictive decisionmaking. 99 Justice Holmes explained
the state's interest in preemptively sterilizing people based on scientific
risk assessments: "It is better for all the world, if instead of waiting to
execute degenerate offspring for crime, or to let them starve for their
imbecility, society can prevent those who are manifestly unfit from con-
tinuing their kind."oo Eugenicists like Justice Holmes legitimized state
violence against marginalized populations by predicting their inevitably
worthless futures based on their alleged biological inheritances from
past generations. Both eugenics and computerized predictive analytics
rationalize continuing structural inequality by conflating forecasting the
future with replicating the past.10 1 Thus, the predictive model that an-
imates the contemporary carceral state has deep roots in U.S. oppressive
ideologies supported by mainstream science.
The digitized carceral state is also fueled by current trends in genetic
science. I have documented elsewhere how genomic scientists are re-
95 DOROTHY ROBERTS, FATAL INVENTION 3-25 (2011); see also BENJAMIN, supra note 13
(describing race as a technology of white supremacy).
96 See Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-
Maintenance Policing, 89 J. CRIM. L. & CRIMINOLOGY 775, 788-89 (1ggg); see also SIMONE
BROWNE, DARK MATTERS (2015) (discussing the history of state surveillance of black people in
the United States).
97 See, e.g., DANIEL J. KEVLES, IN THE NAME OF EUGENICS 82-83 ( 4 th prtg. 2001);
ALEXANDRA STERN, EUGENIC NATION (2005); see also RICHARD J. HERRNSTEIN
&
CHARLES MURRAY, THE BELL CURVE (1994) (arguing that race and class inequalities stem from
immutable differences in inherited cognitive ability measured by IQ).
98 274 U.S. 200 (1927).
99 Id. at 207.
100 Id.
101 Cf. CHUN, supra note 94, at 101-31 (comparing the history of software to the history of
genetics).
inventing race as a biological category using giant DNA databases and

statistical estimates of gene frequencies that differ among geographic
populations.102 In contrast to Enlightenment racial typologists who
classified people into natural kinds based on outward physical features,
modern-day racial scientists use computer software to infer a racial pop-
ulation structure from genotype data based on statistical probabilities.
For example, some researchers use a popular software program called
Structure to divide DNA databases sampled globally into clusters of ge-
netic similarity. The program allocates the individuals whose DNA was
sampled into a specific number of clusters, which are predetermined by
the researcher, based on algorithms that maximize the chances that the
individuals' genotypes will match.1 0 3 Although receiving less attention
from critics, the genetic science of race is run by big data and predictive
analytics. Like other computerized tools, high-tech genomic classifica-
tion is not as objective as scientists claim. Every aspect of the
project - collecting the DNA samples, selecting the number of clusters,
creating the algorithms, mapping the predicted clusters onto common
conceptions of race - is determined by researchers' subjective, socially
influenced decisions.10 4
Moreover, scientists increasingly advocate that government agencies
use genetic predictions to solve social problems. An emerging field of
social genomics involving collaborations of social scientists and biolo-
gists investigates genetic contributions to social behaviors such as edu-
cational attainment, gang membership, and voting patterns.105 Adding
genetics to scientific understandings of social inequality radically affects
state responses to marginalized groups because it allows the political
status of individuals to be predicted and explained by their innate traits.
The authors of a 2016 study, for example, claimed its findings marked
"a turning point in the social and behavioral sciences because" they
"make[] it possible to predict educational achievement for individuals
directly from their DNA."10 6 The authors proposed that "polygenic
scores may soon become a useful tool for early prediction and prevention
of educational problems." 107 Although proponents argue sociogenomic
predictions can be used to reduce inequities in education, health, and
income, 108 it is far more likely that they will reinforce existing social
102 See ROBERTS, supra note 95, at 57-80.

103 Id. at g.
104 See Ann Morning, Does Genomics Challenge the Social Construction of Race?, 32 SOC.
THEORY 189 (2014).
105 See CATHERINE BLISS, SOCIAL BY NATURE 2-5, 41-42 (2018).
106 S.
Selzam et al., Predicting Educational Achievement from DNA, 22 MOLECULAR
PSYCHIATRY 267, 271 (2017).
107 Id.
108 See, e.g., Kathryn Paige Harden, Why Progressives Should Embrace the Genetics of Educa-
tion, N.Y. TIMES (July 24, 2Q18), https://nyti.ms/2JRgQvO [https://perma.cc/AM7P-QSY2].

117t6 HARVARD LAW REVIEW (Vol. 132:1695
hierarchies and target those who are predicted to be the least socially
valuable for extra surveillance. 109
D. How Racism Is Built into Predictive Policing
Nowhere is big data's structural bias more apparent than in predic-

tive policing. The expansion of automated technologies in public assis-
tance programs described in Automating Inequality has been accompa-
nied by a similar technological revolution in the criminal justice
system. 110 Law enforcement agencies nationwide collect and store vast
amounts of data about past crimes, analyze these data using mathemat-
ical algorithms to predict future criminal activity, and incorporate these
forecasts in their strategies for policing individuals, groups, and neigh-
borhoods.11 1 Judges use big data predictive analytics to inform their
decisions about pretrial detention, bail, sentencing, and parole. 11 2 Au-
tomated risk assessments help to determine whether or not defendants
go to prison, what type of facility they are assigned to, how long they
are incarcerated, and the conditions of their release. 11 3 The digital poor-
house is mirrored in the digital prison.
Police departments in numerous cities across the nation are using
computer algorithms to identify geographic areas and individuals at
high risk for crime. 11 4 In 2009, the National Institute of Justice spurred
this technological transformation by offering millions of dollars in grants
to police departments to develop predictive programs. 115 The Chicago
Police Department (CPD) was awarded more than $2 million to test im-
plementation of its "heat list," which uses CPD's crime database and
predictive analytics to identify residents who are most likely to be in-
volved in violent crime, either as perpetrators or victims, before an of-
fense occurs. 1 16 The heat list ranks residents according to a numerical
109 See Dorothy Roberts, Can Research on the Genetics of Intelligence Be "Socially
Neutral"?,
45 HASTINGS CTR. REP. (SPECIAL ISSUE) Sso (2015).
110 See, e.g., DANIELLE KEHL ET AL., BERKMAN KLEIN CTR. FOR INTERNET & SOC'Y, AL-
GORITHMS IN THE CRIMINAL JUSTICE SYSTEM: ASSESSING THE USE OF RISK ASSESS-
MENTS IN SENTENCING (2017); WALTER L. PERRY ET AL., RAND CORP., PREDICTIVE PO-
LICING: THE ROLE OF CRIME FORECASTING IN LAW ENFORCEMENT OPERATIONS (2013).
111 See, e.g., ANDREW GUTHRIE FERGUSON, THE RISE OF BIG DATA POLICING (2017);
Sarah Brayne, Big Data Surveillance; The Case of Policing, 82 AM. SOC. REV. 977 (2017); Andrew
Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. PA. L. REV. 327 (2015);
Ferguson, supra note 78.
112 See, e.g., Ric Simmons, Big Data and ProceduralJustice: Legitimizing Algorithms in the
CriminalJustice System, 15 OHIO ST. J. CRIM. L. 573 (2018); Jason Tashea, CalculatingCrime, 103
A.B.A. J. 54 (2017); Barry-Jester et al., supra note 74.
113 See, e.g., Barry-Jester et al., supra note 74.
114 See Ferguson, supra note 78, at 5o5-o6; Miller, supra note 3, at 117-18.
115 Matt Stroud, The Minority Report: Chicago's New Police Computer Predicts Crimes, but Is
It Racist?, THE VERGE (Feb. 19, 2014, 9:31 AM), https://www.theverge.com/2014/2/19/5419854/
the-minority-report-this-computer-predicts-crime-but-is-it-racist [https://perma.cc/2 3 9 V-FTGD].
116 See id.
risk score that allows police to take steps to prevent future violence and
to know the riskiness of individuals they happen to stop - a "virtual
most wanted list."1 Residents living in high-crime neighborhoods in
Chicago might experience a personal visit from police officers who warn
them that they should avoid committing a crime because the department
is watching them.118
Similarly, the Memphis police department's Blue CRUSH program
applies IBM predictive-analytics software to data on past crimes to
identify "hot spots" where officers are directed to conduct sweeps and
show a heightened presence to deter future criminal activity.119 A num-
ber of police departments have collected secret gang databases that list
residents likely to be gang members. 1 2 0 Police departments are also
monitoring social media online to collect data for investigating and iden-
tifying criminal activity and to collect evidence in criminal cases. 121 In
2014, the New York Police Department (NYPD) arrested 103 alleged
gang members residing in a Harlem public housing project after moni-
toring their social media communications for four years. 1 2 2 Numerous
law enforcement agencies also use facial recognition software in solving
crimes. 123
In addition, federal and state law enforcement agencies are amassing
giant databases of DNA seized from people who are convicted - and
in some states merely arrested - for crimes.124 This form of genetic
surveillance treats people as permanent suspects by indefinitely storing
their profiles as potential matches to DNA collected at future crime
scenes.
117 Ferguson, supra note 78, at 5o5-06, 520.

118 See Stroud, supra note 115.
119 Miller, supra note 3, at 117. See generally Anthony A. Braga, Hot Spots Policing and Crime
Prevention:A Systematic Review of Randomized Controlled Trials, 1 J. EXPERIMENTAL CRIMI-
NOLOGY 317, 318-20 (2005); Real-Time Crime ForecastingChallenge, NAT'L INST. OF JUST.
(July 31, 2017), https://www.nij.gov/funding/Pages/fy16-crime-forecasting-challenge-document.aspx
[https://perma.cc/MF7N-BQU6].
120 See Aaron Harvey, The List that Can Take Your Life, HUFFINGTON POST (Sept. 27, 2016),
https://www.huffingtonpost.com/entry/the-list-that-can-take-you-life-us-57eae82 ce4bo7f2odaaofd5 i
[https://perma.cc/M3ZD-G8FE].
121 See Desmond Upton Patton et al., Stop and Frisk Online: Theorizing Everyday Racism in
DigitalPolicing in the Use of Social Mediafor Identificationof CriminalConduct and Associations,
3 SOC. MEDIA & SOC'Y 1, 2-3 (2017).
122 Id. at 1.
123 CLARE GARVIE ET AL., CTR. ON PRIVACY & TECH. AT GEORGETOWN LAW, THE PER-
PETUAL LINE-UP: UNREGULATED POLICE FACE RECOGNITION IN AMERICA (2016),
https://www.perpetuallineup. org/sites/default/files/2 o 6-12/The% 2oPerpetual%2 oLine-Up% 20-
%2oCenter%2oon%2OPrivacy%2oand%2OTechnology%2Oat%2OGeorgetown%2OLaw%20-
%2o1216i6.pdf [https://perma.cc/gFXG-42KQ].
124 See ROBERTS, supra note 95, at 264-86; Erin Murphy, Databases, Doctrine & Constitutional
CriminalProcedure, 37 FORDHAM URB. L.J. 803, 807-09 (2010).
Some scholars and policymakers argue that computerized risk as-

sessments can reduce racial bias in policing and sentencing decisions
and even help to end mass incarceration.12 5 Analyses of these predictive
technologies, however, reveal that they disproportionately identify
African Americans as likely to commit crimes in the future. An exami-
nation of the NYPD gang database, for example, showed that only ap-
proximately one-quarter of the individuals identified as potential gang
members were white. 126 A comprehensive investigation of police de-
partment facial recognition by the Center on Privacy and Technology at
Georgetown Law found that the databases likely contain a dispropor-
tionate number of images of black people and that the software may be
especially inaccurate in recognizing black people's faces. 127 Experts also
estimate that DNA databases contain profiles from a disproportionate
number of African Americans. 128 With astronomical arrest rates in
many black neighborhoods, DNA collection by police officers could cre-
ate a comprehensive database of urban black men. After examining risk
scores assigned by the Correctional Offender Management Profiling for
Alternative Sanctions (COMPAS) to more than 7000 people arrested in
Broward County, Florida, ProPublica reported that the tool falsely la-
beled black defendants as future criminals at almost twice the rate as
white defendants and mislabeled white defendants as low risk more of-
ten than it did black defendants. 129
Scholars have pointed out that the variables included in predictive
tools can function as "prox[ies] for race" even when race is omitted from
125 See, e.g., Simmons, supra note 112, at 577-78 ("It is arguably easier to remove race based
criteria from a computer algorithm than from a decision made by an individual actor, since algo-
rithms could theoretically be programmed to discount any factors which have been tainted by prior
racial discrimination." Id. at 577.); Skeem & Lowenkamp, supra note 89, at 705-06; Bhagwan
Chowdhry et al., How Big Data Can Make Us Less Racist, ZOCALO PUB. SQUARE (Apr. 28, 2016),
http://www.zocalopublicsquare.org/20J 6/o4/28/how-big-data-can-make-us-less-racist/ideas/nexus/
[https://perma.cc/8KV6-C2BB]; Shaila Dewan, Judges Replacing Conjecture with FormulaforBail,
N.Y. TIMES (June 26, 2Q15), https://nyti.ms/iBRYp5E [https://perma.cc/K3WX-8RLH].
126 See Nick Pinto, NYPD Disputes Gang Database Numbers - But Its Math Doesn't Add Up,
THE INTERCEPT (June 14, 2018, 2:51 PM), https://theintercept.com/2018/o6/14/nypd-gang-database-
city-council-dermot-shea/ [https://perma.cc/3EF4-BPKM].
127 GARVIE ET AL., supra note 123.
128 See ROBERTS, supra note 95, at 277-78.
129 Julia Angwin et al., Machine Bias, PROPUBLICA (May 23, 2Q16), https://www.propublica.org/
article/machine-bias-risk-assessments-in-criminal-sentencing [https://perma.cc/2LSQ-URH 7 ]; see also
State v. Loomis, 881 N.W.2d 749, 753 (Wis. 2016) (denying defendant's claim that use of COMPAS
in sentencing violated his due process rights); Tashea, supra note 112, at 56.
the algorithms. 130 Neighborhood, marital history, educational attain-

ment, employment status, and criminal history can combine to target
black people even when race is not a variable. 13 1
This racial identification does not result from accidental correlation
or from deliberate animus on the part of programmers. The factors they
program into risk assessments disproportionately apply to black
Americans because white supremacy has structured the factors that way.
Employment discrimination, residential segregation, unequal public
school funding, and racial profiling by police shape the social universe
from which the raw data are drawn and the algorithms are constructed,
generating higher risk scores for black people.
Crime data collection reflects discriminatory policing. Numerous
studies demonstrate that police engage in rampant racial profiling
throughout the nation.132 Because of residential segregation, police rou-
tinely bias data collection against black residents by patrolling their
neighborhoods with far greater intensity than white neighborhoods. 133
In New York City, for example, police stop black residents and arrest
them for marijuana possession at far higher rates than white residents,
despite roughly the same rates of marijuana use. 13 4 The database used
to determine the characteristics of New York City residents who illegally
possess marijuana and to develop the algorithm to predict future offend-
ers, therefore, will produce outputs that are just as racist as the policing
that created it.135 Just like police who racially profile communities, sur-
veillance technologies such as video cameras and audio sensors placed
primarily in black neighborhoods amass a biased database that skews
the variables later used to predict crime.13 6 If police officers mostly
patrol black neighborhoods, much of the digital footage their body cam-
eras upload to data warehouses will include the movements of black
people. 131
130 See, e.g., Bernard E. Harcourt, Risk as a Proxyfor Race: The Dangers of Risk Assessment, 27
FED. SENT'G REP. 237, 237 (2015); Sonja B. Starr, Evidence-Based Sentencing and the Scientific
Rationalizationof Discrimination,66 STAN. L. REV. 803, 819, 838 (2014).
131 See HARCOURT, supra note 2, at 237; O'NEIL, supra note i, at g; Kelly Hannah-Moffat,
Actuarial Sentencing: An "Unsettled" Proposition,30 JUST. Q. 270, 2 79-84 (2013); Starr, supra note
130, at 838-39.
132 See, e.g., BUTLER, supra note 68, at 190-94.
133 See DAVID ROBINSON & LOGAN KOEPKE, UPTURN, STUCK IN A PATTERN: EARLY EV-
IDENCE ON "PREDICTIVE POLICING" AND CIVIL RIGHTS 5-7 (2016), https://
www.upturn.org/static/reports/2o1 6/stuck-in-a-pattern/files/Upturn_-_StuckIn_a_Patternv.1.o .pdf
[https://perma.cc/ 4 UH6-MKHK].
134 Benjamin Mueller et al., Surest Way to Face MarijuanaCharges in New York: Be Black or
Hispanic, N.Y. TIMES (May 13, 2018), https://nyti.ms/2IdyUUX [https://perma.cc/K6Yg-YXRZ].
135 See O'NEIL, supra note i, at 91-95.
136 See Ferguson, supra note 78, at 513-14; Elizabeth E. Joh, Feeding the Machine: Policing,
Crime Data, & Algorithms, 26 WM. & MARY BILL RTS. J. 287, 289 (2017) (noting that police "gen-
erate the information that big data programs rely upon").
137 See Ferguson, supra note 78, at 506-07,
514.
Or take another data point used in forecasting violent crime - an

individual's social networks. 13 8 Because black people are under law
enforcement supervision at such high rates, it is almost impossible for
any black person living in America - especially those living in predom-
inantly black neighborhoods - to have a social network free of connec-
tions to crime.139 The high odds of involvement in the criminal justice
system makes it likely black individuals will have offenders among their
social relationships, even if they are not offenders themselves.
Risk assessment models that import institutionally biased data be-
come a "self-fulfilling feedback loop"140 where the prediction ensures
future detection. When a predictive model identifies a trait or place
based on structurally biased data or programming, the profiled trait or
place garners heightened police attention. The police are then more
likely to find crime associated with the trait or located in the area. Not
only does this unjustly target individuals who have these traits or live
in these areas, but the new data recorded from these biased encounters
"then feed into the predictive policing algorithm on subsequent days,
generating increasingly biased predictions." 14 1 These successes in crime
detection appear to the machine and to policymakers to confirm the
prediction. 14 2 Indeed, the prediction can only be verified by reproducing
the biases built into it and generating more discriminatory arrests.
There is no room in the model to respond to the prediction by ending
the racial profiling that produced it. Because predictive models are
evaluated by their success rates in finding crime without regard to their
discriminatory social impact, the models seem to work well.143 Eubanks
found a similar feedback loop in Allegheny County's child maltreatment
risk assessment: "A family scored as high risk by the AFST will undergo
more scrutiny than other families. . . . If [a parent in that family] loses
her children, the risk model can claim another successful prediction" (p.
138 See, e.g., Whet Moser, The Small Social Networks at the Heart of Chicago Violence, CHI.
MAG. (Dec. 9, 2013), https://www.chicagomag.com/city-life/December-2013/The-Small-Social-
Networks-at-the-Heart-of-Chicago-Violence [https://perma.cc/Lg 7 B-6CD6].
139 See Ferguson, supra note 78, at 513-15. On the relationship between social networks, geog-
raphy, and crime, see Andrew V. Papachristos, David M. Hureau & Anthony A. Braga, The Corner
and the Crew: The Influence of Geography and Social Networks on Gang Violence, 78 AM. SOC.
REV; 417 (2013). Such sociological theories of how social networks produce crime have influenced
predictive models. My argument is not about crime production but rather racially biased crime
detection that skews social networks toward predicting black people's involvement in future crime.
140 Ferguson, supra note 78, at 516; see also O'NEIL, supra note i, at 27; William S. Isaac, Hope,
Hype, and Fear: The Promise and Potential Pitfalls of Artificial Intelligence in CriminalJustice,
15 OHIO ST. J. CRIM. L. 543, 550 (2018).
141 Isaac, supra note 140, at 55o (citing Kristian Lum & William Isaac, To Predict and Serve?,
SIGNIFICANCE MAG., Oct. 2016, at i9) (describing the "ratchet effect" from newly recorded
crimes).
142 Miller, supra note 3, at 124-25; see also Isaac, supra note
140, at 548.
143 Miller, supra note 3, at 125.
169). Thus, the original selection bias arising from structural inequities
generates observation bias which produces confirmation bias. 14 4 All this
built-in bias subjects black people to being criminalized - not caught
for committing crimes but predicted to commit crimes in the future.
III. REFORMING BIG DATA OR ABOLISHING

THE CARCERAL STATE?
A structural analysis of big data's role in fostering the carceral state

shapes both the diagnosis of the problem big data poses for society and
the prescription to fix it. Concerns about technological flaws in the gov-
ernment's predictive tools have resulted in proposals to correct either
the technological models or the way state agencies deploy them 1 4 5
However, recognizing that state agencies use predictive tools for puni-
tive purposes to reinforce unjust political arrangements suggests the
need for a more radical approach to digitizing the carceral state.
A. The Potential and Limits of Due Process
Many big data reformers have focused on illuminating big data's

"black box" so its hidden biases can be exposed and eliminated. 14 6 A
technological approach seeks to make the algorithms themselves more
transparent. For example, a team of computer scientists sought to de-
termine whether there was a more accurate and more transparent model
than the COMPAS software. 14 They introduced a special algorithm,
called Certifiably Optimal RulE ListS (CORELS), that provides the op-
timal solution using rule lists that are approximately as accurate as
COMPAS. 14 8
144 See Isaac, supra note 140, at 55o-5 i (noting that the feedback mechanism in predictive polic-
ing algorithms is "selection bias meets confirmation bias," id. at 551). But see ROBINSON
KOEPKE, supra note 133, at 7 ("[O]ur research surfaced few rigorous analyses of predictive policing &
systems' claims of efficacy, accuracy, or crime reduction.").
145 See, e.g., Terry, supra note 3, at 44-45 (discussing five federal reports proposing increased
regulation of big data to protect consumer privacy); Moritz Hardt, Eric Price & Nathan Srebro,
Equality of Opportunity in Supervised Learning 2-3 (Oct. 11, 2016) (unpublished manuscript),
https://arxiv.org/pdf/161o.O2413.pdf [https://perma.cc/2ZPC- 7 G 3 G] (discussing approaches to re-
moving discrimination from machine learning); John Podesta, Findings of the Big Dataand Privacy
Working Group Review, WHITE HOUSE: BLOG (May 1, 2014, 1:15 PM),
https://obamawhitehouse.archives.gov/blog/2o14/o5/0i/findings-big-data-and-privacy-working-group-
review [https://perma.cc/LgQD-UKZP].
146 See, e.g., EXEC. OFFICE OF THE PRESIDENT, BIG DATA: A REPORT ON ALGORITHMIC
SYSTEMS, OPPORTUNITY, AND CIVIL RIGHTS 21 (2o16), https://obamawhitehouse.
archives.gov/sites/default/files/microsites/ostp/2o16_o5o4_data-discrimination.pdf [https://perma.cc/
Ns6T-D 3 EL]; Simmons, supra note 112, at 579 ("Proponents of big data algorithms may want to
impose a transparency requirement in order to increase the trustworthiness of their system.").
147 Angelino et al., supra note 82, at 2; see also Skeem & Lowenkamp, supra note 89, at 706
("[R]isk assessment instruments can be free of predictive bias and can be associated with small
mean score differences by race.").
148 Angelino et al., supra note 82, at 2.
Another approach is to increase transparency by applying updated

standards of technological due process that give individuals subject to
automated adjudication "the right to inspect, correct, and dispute" the
bases for agency decisions. 14 9 At a minimum, due process requires no-
tice that provides "audit trails" of the inputs, codes, and rules used at
each algorithmic decision point so affected individuals may seek mean-
ingful administrative review of the process.1 5 0 In addition, government
agencies should be accountable to the public by instituting their own
oversight of their use of big data as well as making their algorithms
public to facilitate auditing and research by independent experts in the
field. 15 1 In 2017, the New York City Council passed an algorithmic
accountability bill, the first of its kind in the country, establishing a task
force to examine how city agencies use algorithms, in an effort to make
them more transparent and less biased. 152
Attempting to eliminate biases from the algorithms, however, is an
incomplete remedy because unequal structures are built into the data
that state systems collect and the objectives they pursue. Some govern-
ment decisions simply should not be automated at all because automa-
tion itself makes adjudication undemocratic. Professor Danielle Citron
argues that certain types of decisionmaking require human discretion
that can't be codified and delegated to a computer without violating
citizens' due process rights. 153
Other policymakers argue that automated risk assessment can limit
carceral governance by identifying people who are less prone to engage
in harmful behavior and therefore can be subjected to lower levels of
surveillance. Police departments, criminal courts, and child protective
services all use predictive analytics to sort people into groups requiring
more or less state intervention. By using an algorithm developed by the
Laura and John Arnold Foundation, judges have been able to release
low-risk defendants before trial without setting prohibitive bail
amounts. 15 4 Courts across the nation divert certain drug offenders from
149 Danielle Keats Citron & Frank Pasquale, The Scored Society: Due Processfor Automated
Predictions, 89 WASH. L. REV. 1, 20 (2014); see also Perdue v. Gargano, 964 N.E.2d 825, 828-29
(Ind. 2012) (discussing due process challenge brough against Indiana's Family and Social Services
Administration).
150 Danielle Keats Citron, Technological Due Process, 85 WASH. U. L. REV. 1249, 1277, 1305
(2008); Miller, supra note 3, at 138-39; see also About, AUDITING ALGORITHMS: ADDING AC-
COUNTABILITY TO AUTOMATED AUTHORITY, http://auditingalgorithms.science/?page-id=8 9
[https://perma.cc/U5L3-28PX] (describing a "research design" aimed at "diagnosing the unwanted
consequences of algorithmic systems").
151 See KEHL ET AL., supra note i1o, at 133-37.
152 Lauren Kirchner, Machine Bias: New York City Moves to Create Accountability for Algo-
rithms, PROPUBLICA (Dec. 18, 2017, 12:08 PM), https://www.propublica.org/article/new-york-city-
moves-to-create-accountability-for-algorithms [https://perma.cc/Q5WT-686V].
153 Citron, supra note 15o,
at 1304-05.
154 Dewan, supra note 125.
prison to drug treatment and other supervisory programs. 155 Child wel-
fare departments in a number of states have adopted differential re-
sponse programs that provide in-home services to parents rated at low
risk of maltreating their children while reserving more coercive surveil-
lance and foster care for parents rated at high risk of maltreating their
children.156
Yet these dual track systems based on risk assessments can have pre-
cisely the opposite effect, sweeping into the carceral net low-risk indi-
viduals who previously would not have been on the government's puni-
tive radar at all. Struggling parents who are targeted by automated
models become subject to agency monitoring and therefore more vul-
nerable to losing custody of their children even though they are unlikely
to harm them. Criminal justice diversion programs often lead to longer
entanglements with the criminal courts than would a prison sentence
and entail extremely intrusive regulation of defendants' behavior with
the constant threat of being sent to prison for minor infractions. Elec-
tronic monitoring of low-risk defendants extends surveillance outside
prison walls into people's homes and everyday lives.
California's recent bail reform legislation provides a telling illustra-
tion. In August 2018, California became the first state in the nation to
eliminate the system of cash bail for defendants charged with nonviolent
crimes, which unjustly based pretrial detention on the ability to afford
bail. 15 7 The state legislature replaced the bail system with algorithmic
tools that can score individuals according to their likelihood to be rear-
rested or fail to appear in court if released. 15 8 Key advocates of
abolishing cash bail pulled their support for the law because of concerns
that the bill's predictive model would worsen discrimination against
black defendants. 15 9 As Ivette A16, an organizer with Californians
United for a Responsible Budget (CURB), put it, "[w]e are replacing
155 See Barry-Jester et al., supra note 74 (discussing various states that use risk assessments to
determine sentencing and probation decisions).
156 See NAT'L QUALITY IMPROVEMENT CTR. ON DIFFERENTIAL RESPONSE IN CHILD
PROTECTIVE SERVS., DIFFERENTIAL RESPONSE APPROACH IN CHILD PROTECTIVE SER-
VICES: AN ANALYSIS OF STATE LEGISLATIVE PROVISIONS, http://www.ucdenver.edu/
academics/colleges/medi calschool/departments/pediatrics/subs/can/DR/qicdr/General%2 oResources/
General%2oResources/docs/differential-response.pdf [https://perma.cc/LK2M-TCDQ].
157 Sophia Bollag, New Law to Make California First State to End Bail, ASSOCIATED PRESS
(Aug. 28, 2018), https://www.apnews.com/o2cdgeob5o7244d6bb773e285o57a7fb [https://
perma.cc/VXNg-DTL2].
158 S.B. io, 2018 Leg., Reg. Sess. (Cal. 2018) (enacted) (codified at CAL. GOVT CODE § 27771
and scattered sections of CAL. PENAL CODE).
159 See Sam Levin, Imprisoned by Algorithms: The Dark Side of California Ending Cash Bail,
THE GUARDIAN (Sept. 7, 2018, 10:o9 AM), https://www.theguardian.com/us-news/2018/sep/o7/
imprisoned-by-algorithms-the-dark-side-of-california-ending-cash-bail [https://perma.cc/5LPF-
CGFX]; see also Megan Stevenson, Assessing Risk Assessment in Action, 103 MINN. L. REV. 303
(2018) (finding Kentucky's pretrial risk assessment resulted in only a small increase in pretrial re-
lease, which appeared to benefit white defendants more than black defendants).
money bail with an even more harmful system of profiling." 16 0 Without

changing the fundamental philosophy of the carceral state - and in-
stead punishing people marginalized by the current unjust social
order - California's statistical tools threaten to expand rather than cur-
tail its reach.
B. RationalizingPoliticalFailure
Another reason why reforming risk assessments is insufficient to rein

in the carceral state is that the predictive approach itself promotes pub-
lic support for punitive governance. Eubanks argues compellingly that
digitizing government programs serves to rationalize the nation's failure
to address poverty. Big data not only facilitates policing people in place
of meeting their needs, it also makes this unjust substitution seem fair,
objective, and ethical. Eubanks situates the rise of automated deci-
sionmaking in the current political moment when the white professional
middle class is desperate to preserve its status in the face of expanding
wealth, growing economic inequality, and increasing demographic di-
versity (p. 184). After the civil rights-era victories and rejection of
blatantly discriminatory practices, maintaining the unequal social order
required a class-neutral, colorblind ideology (p. 191).161 Computer-gen-
erated risk scores appear to provide apolitical solutions to problems
caused by unjust political hierarchies. "The classism and racism of elites
are math-washed, neutralized by technological mystification and data-
based hocus pocus," writes Eubanks (p. 192). Ruling by algorithm
makes carceral policies seem scientific, accurate, precise, and unbiased.
Moreover, it permits the public to deny the need to dismantle oppressive
systems and radically change state and societal approaches to social in-
equalities. Thus, automatic decisionmaking furthers a "public policy
fixat[ion] on attributing blame for poverty rather than remedying its ef-
fects or abolishing its causes" (p. 176).
C. Toward Abolishing the Digitized Carceral State

Recognizing that the digital poorhouse functions to reinforce
inequality, Eubanks proposes to dismantle it (pp. 201-17). Her recom-
mendations don't focus on reforming risk assessments. They begin in-
stead with the 1968 Southern Christian Leadership Conference (SCLC)
demands for an economic and social Bill of Rights (p. 208). In a letter
to President Johnson and Congress, Dr. Martin Luther King, Jr., and
fellow SCLC members set forth six fundamental rights required for all
Americans to experience the promises of U.S. democracy: rights to a
decent job, minimum income, decent housing, adequate education, dem-
ocratic participation, and health care (p. 208). Eubanks suggests that
160 Levin, supra note i59.

161 See also BONILLA-SILVA, supra note 67, at 1-4.
the universal basic income might be a first step to weaken the allure of
the digital poorhouse and expose it as "an overly elaborate technological
infrastructure that wastes time, resources, and human potential" (p.
211). In other words, the way to stop big data's threat to society is not
to improve big data. It is to work toward changing the unjust structures
that big data supports.
Extending Eubanks's insights to the wider digitized carceral state,
the need for an abolitionist approach that centers on antiracism becomes
even clearer.1 6 2 First, improving risk assessment procedures within mul-
tiple interlocking systems designed to exclude black people from social,
economic, and political participation threatens to obscure these proce-
dures' antidemocratic functions and make them operate more efficiently.
The only way to address the digitized carceral state is to dismantle its
social institutions that enforce a racial caste system and reconstitute
them in radically new forms.
Second, centering racism's role in the digitized carceral state empha-
sizes the need to directly contest racism and white supremacy to build a
viable coalition to dismantle it. The racism embedded in predictive an-
alytics highlights how federal, state, and local governments have been
willing to impose security measures on people of color to secure white
people's liberty.1 6 3 A majority of white Americans acquiesce in or sup-
port the criminalizing and antidemocratic effects of automated deci-
sionmaking because they comport with racist ideologies about black
people that have long propped up the unequal U.S. racial order. As I
have noted elsewhere, white Americans "are willing to tolerate intolera-
ble amounts of state violence against black people because their white
racial privilege protects them from experiencing this violence themselves
and because they see this violence as necessary to protect their own
privileged racial status."1 6 4 Just as "[w]e manage the individual poor in
order to escape our shared responsibility for eradicating poverty" (p. 13),
the carceral state criminalizes whole black communities so whites can
escape their responsibility to end structural racism. Many of the white
people trapped in the digital poorhouse support the very policies that
trap them there in order to keep black people bound in intersecting car-
ceral systems.
Regulating black women's bodies acts as the linchpin that binds not
only disciplinary welfare, criminal justice, and child protection policies
directed at marginalized communities but also disciplinary policies that
162 See Dorothy E. Roberts, Democratizing CriminalLaw as an AbolitionistProject, 11i NW. U.

L. REV. 1597, 1604-07 (2017).
163 Roberts, supra note g6, at 827-36.
164 Roberts, supra note 162, at 16o6. See generally CAROL ANDERSON, WHITE RAGE (2016);
DERRICK BELL, FACES AT THE BOTTOM OF THE WELL (1993); IAN HANEY LOPEZ, DOG
WHISTLE POLITICS (2014).
keep socially privileged people from seeing the need for social change.
"For example, portraying state agencies' placement of Black children in
foster care as necessary to protect them from their depraved or incom-
petent mothers creates a barrier between these mothers and middle-class
white mothers who would benefit from government provision of high-
quality child care for all families." 165 In this way, the carceral state,
aided by supposedly race-neutral predictions of child maltreatment,
secures public support for inadequate market-based forms of child care
along with punitive surveillance of parents instead of a unified move-
ment for generous state support for families.
This lack of unity not only means that an abolitionist movement
should include the universal economic rights that Eubanks proposes,
but also requires an explicitly antiracist mission that contests the white
supremacist ideologies that support punitive governance and the
stranglehold on black communities. To the extent that Eubanks appeals
directly to the data scientists about their technology designs, she offers
a "gut check" that relates to the tools' social impact rather than effi-
ciency: "Does the tool increase the self-determination and agency of the
poor? Would the tool be tolerated if it was targeted at non-poor people?"
(p. 212).166 These questions should be extended to include race, gender,
disability, and other political categories that mark people disadvantaged
by the digitized carceral state.
With an abolitionist vision, people can employ technology in novel
ways to facilitate social change. 167 Social justice movements like Black
Lives Matter, Say Her Name, and Survived and Punished have orga-
nized, publicized, and raised money for their efforts using social media
platforms, including Facebook, Instagram, and Twitter. 168 Organiza-
tions use electronic tools to collect and circulate data that document ris-
ing inequalities and state violence in order to end them. 169 Ordinary
165 Roberts, CritialRace, supra note 27, at 122.

166 Eubanks also proposes a more detailed "Hippocratic Oath for the data scientists, systems
engineers, hackers, and administrative officials of the new millennium" (pp. 212-13).
167 See BENJAMIN, supra note 13 (exploring ways technologies can be used to contest racism);
LISA NAKAMURA, DIGITIZING RACE (2007) (arguing that people of color use visual culture on
the internet to articulate their own racial identities and politics).
168 See, e.g., Monica Anderson et al., Activism in the Social Media Age, PEW RES. CTR. (July
11, 2018), http://www.pewinternet.org/2018/o7/i i/activism-in-the-social-media-age/ [https://
perma.cc/KQAg-NFA2]; see also PAOLO GERBAUDO, TWEETS AND THE STREETS (2012) (ana-
lyzing the rise of social media and the global emergence of new forms of protest); John T. Jost et al.,
How Social Media FacilitatesPoliticalProtest: Information, Motivation, and Social Networks, 39
ADVANCES POL. PSYCH. 85 (2018) (examining how social media platforms facilitate protest move-
ments in the United States, Spain, Turkey, and Ukraine). White supremacists are also using online
platforms to organize and promote their views. See JESSIE DANIELS, CYBER RACISM 3-4 (2009).
169 See, e.g., MAPPING POLICE VIOLENCE, https://mappingpoliceviolence.org [https://perma.cc/
P8Q 4 -SLL 7 ] (using big data to document, measure, and display information about police violence
and its victims); About Datafor Black Lives, DATA FOR BLACK LIVES, http://d4bl.org/about.html
residents monitor the actions of police officers in their neighborhoods

and capture incidences of brutality on their cell phones. 1 0 Indeed, the
same predictive analytics used by the carceral state to reproduce
unequal structures can be used by abolitionists to identify and excavate
the sites where inequality has been institutionally embedded. If suppos-
edly objective algorithms produce discriminatory outcomes, audit trails
can help to pinpoint where structural changes need to take place."
While reforming big data is inadequate to stop the digitized carceral
state, abolitionists can include technologies among their tools to disman-
tle it.
Abolishing the carceral state requires more than placing the same
technologies in different hands. I have argued that big data, predictive
analytics, and automated decisionmaking function in particular ways to
reinforce an unjust, unequal, and antidemocratic political order. Aboli-
tionists must envision a radically different relationship between technol-
ogy and politics, one that facilitates justice, equality, and democracy.
We might begin to sketch out the contours of an abolitionist approach
by opposing the chief aspects of carceral data collection, prediction, and
automation and replacing them with emancipatory features.
A fundamental innovation for abolitionists must be to end prediction
as a way of foreclosing social change by collapsing the future into past
inequality. Abolitionist forecasting technologies must facilitate envision-
ing a future that doesn't replicate the past. Communication theorist
Professor Wendy Chun proposes the concept of "hypo-models" to en-
gage with the risk of inexperienceable future conditions, such as climate
change. 17 2 Rejecting dominant scientific models whose predictions can
only be verified when past political problems are reproduced, Chun calls
for models that "address uncertainty as enabling rather than disabling"
and "treat the nonexact coincidence between scientific predictions and
observed reality as the promise, rather than the end, of science and of
politics."117 3 Hypo-models, Chun suggests, should be used to change hu-
[https://perma.cc/35N6-QNSP] ("Data for Black Lives is a group of activists, organizers, and math-
ematicians committed to the mission of using data science to create concrete and measurable change
in the lives of Black people.").
170 Farhad Manjoo & Mike Isaac, Phone Cameras and Apps Help Speed Callsfor Police Reform,
N.Y. TIMES (Apr. 8, 2005), https://nyti.ms/iFjocRG [https://perma.cc/RRJ2-2URB].
171 See Aaron M. Bornstein, Are Algorithms Building the New Infrastructure of Racism?,
NAUTILUS (Dec. 21, 2017), http://nautil.us/issue/55/trust/are-algorithms-building-the-new-
infrastructure-of-racism [https://perma.cc/XR6R-FY5R] ("One of the great benefits of the big data
age is that the logic of our decisions can be formally analyzed, and numerically picked apart, in
ways that were previously impossible.").
172 Wendy Hui Kyong Chun, On Hypo-Real Models or Global Climate Change: A Challengefor
the Humanities, 41 CRIT. INQUIRY 675 (2015).
173 Id. at 678-79.
man behavior rather than preempt it and "produce the improbable ra-
ther than the probable." 1 4 She asks, "how are we to consider the rela-
tions between correlation and the future, not to shut down the future
-
to shape it into what is most statistically probable - but to deal with
invisible forces that we cannot entirely know, but need nonetheless to
change?"1 7 5 Thus, we can use climate change forecasts to envision and
work toward a better future guided by environmental justice rather than
to predict an inevitable future devastated by global warming.
Similarly, abolitionists can design technological models that facilitate
engagement with the risks produced by current unequal social structures
in new ways. These tools could motivate changes in human behavior
rather than make automated decisions predetermined by structural ine-
quality and bias. Instead of using predictive tools to identify risky pop-
ulations to be managed without regard to individual culpability, we
could use them to identify and support individuals who are at risk of
suffering because of institutionalized group discrimination. Instead of
protecting the power of privileged elites to determine the inputs of au-
tomated decisions, we could put in place democratic frameworks that
allow the public, especially people from the most marginalized commu-
nities, to participate in technology development and management. By
contesting the digitized carceral state, abolitionists invite the potential
for human beings to reject technological reproduction of past injustice
and to use technology to help create a more humane future reality.
174 Id. at 697.

175 Id.

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Bluebook 21st ed.

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APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

The historical context of abolition is minimally understood, either in

I. ABOLITION IN HISTORICAL CONTEXT

3 See INST. FOR CRIMINAL POLICY RESEARCH, Highest to Lowest - PrisonPopulationTotal,

by challenging white supremacy in U.S. laws, institutions, and relation-

II. REPARATIONS: ABOLITION IN ACTION

Abolition calls on us not only to destabilize, deconstruct, and demol-

Western Hemisphere, launched a reparations campaign against France

III. WHAT WE'RE UP AGAINST: THE LACK OF

From 2005 to 2006, I worked as a high school youth counselor. Stu-

Two years before that experience, my brother was released from

By the fourth day, my brother didn't recognize any of us. My mother

19 See generally DAVID SPENER, CLANDESTINE CROSSINGS: MIGRANTS AND COYOTES

IV. PERSONAL RELATIONSHIPS AND CRIES FOR

At twenty-three years old, my best friend Star became an avid drug

V. SUCCESSFUL TRANSFORMATIVE PRACTICE IN

I helped raise my nephew. I made a promise to myself that I

of a nonspanking home. My nephew developed into a more thoughtful,

1. Tell Jordan that I was harmed.

After the meeting, Jordan became defensive. Again, they refused to

21 See U.S. GOV'T ACCOUNTABILITY OFFICE, K-12 EDUCATION: DISCIPLINE DISPARI-

The following year, I contacted Jordan. I asked if they were open to

Abolition must be a cultural intervention. It must produce a new

AUTOMATING INEQUALITY: How HIGH-TECH TOOLS PROFILE,

Reviewed by Dorothy E. Roberts*

Many life-changing interactions between individuals and state

TECH. 241, 246 (2012).

While important, these concerns about access to and protection from

reliance on computer software to generate risk scores doesn't make de-

12 See infra Part II, pp. 1707-21.

I. THE CARCERAL STATE: BEYOND

The automated system of poverty management described in

14 See DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM 5-38 (2005).

responders to crises caused by social needs.35 As Eubanks notes, "[t]here

EDUC. FUND, INC., DISMANTLING THE SCHOOL-TO-PRISON PIPELINE, https://

foster-care-to-prison pipeline: children living in or aging out of foster

short, multiple state systems purportedly designed to serve human

in-home services. 6 4 The choice to fund punitive rather than supportive

II. BUILT-IN INEQUALITY

Placing the public welfare programs Eubanks examines in the con-

A. More than Bias: Big Data's Social and Ideological Structure

In her devastating expos6 of big data's dangers, Weapons of Math

Eubanks shows that Allegheny County's software model, the Alle-

A corollary to the argument that automated decisionmaking is less

the longstanding bias in child welfare and public assistance deci-

Moreover, private companies' technologies are typically proprietary

80 Ferguson, supra note 78, at 5o9.

potentially transformed, whereas computer algorithms cement biases

C. Racism, Prediction, and the CarceralState

Prediction is a defining feature of the carceral state. Automated risk

85 HARCOURT, supra note 2, at 77-107; Miller, supra note 3, at 114.

"bounds set by moral concerns about culpability" to match the carceral

based on the past").

inventing race as a biological category using giant DNA databases and

102 See ROBERTS, supra note 95, at 57-80.