A New Approach to Criminal Justice after the Crisis

Society's approach to criminal justice is intimately connected to the project of building a better economy.

These position papers aim to build on energies that have been unleashed by activists and academics during the coronavirus crisis. The papers reflect on existing campaigns and intellectual work, and suggest further policy demands to build on work that has been done.

Perhaps the most exciting and influential activist work done in 2020 so far has arisen out of Black Lives Matter protests in the United States following the murder of George Floyd. Street demonstrations and rebellions resulted in decisions to defund the police, for example in Los Angeles,^1 and the toppling of major monuments of racist figures. Some change was swift, even if opposition was significant and vested interests remain.

These uprisings then influenced a wave of protests in the United Kingdom in early June. The statue of slave-trader Edward Colston was removed in Bristol; the Greater London Authority announced a review of monuments, plaques, and street names; media outlets made various voluntary decisions to remove racist content.

There was a widespread call, arising out of these protests, to rethink criminal justice in this country and beyond — and to transform and overhaul approaches to policing and prison. This position paper is one response to that call.

Criminal Justice and the Economy

The position papers offered here focus on building a different kind of economy, where ‘economy’ is understood in its broadest sense. Society’s approach to criminal justice is intimately connected to the project of building a better economy.

The current approach to criminal justice in the United Kingdom excludes people from participating in the economy, especially working-class people (many of whom are Black or identify as members of a minority ethnic group). It also incurs significant economic cost, directly and in terms of other indirect harms. Economic exclusion and cost are not the only or even the main problems with our approach to criminal justice, which is also inhumane and ineffective. But it is worth mentioning these facts to highlight that criminal justice is not irrelevant to conversations about the economy. Economic debates, such as debates about privatisation as opposed to public ownership, are highly relevant in the criminal justice sphere (for example, in relation to probation).

As well, and perhaps more importantly, we cannot simply talk about a bigger or smaller state after the coronavirus crisis: we must talk about whose interests the state serves and how the state needs to be restructured. Analysing criminal justice highlights some violent dimensions of the existing capitalist state in the United Kingdom, and sketching an alternative approach to criminal justice can help to focus our minds on the kind of state that we should all demand.

A Root and Branch Overhaul of the Carceral State

There is a risk in addressing criminal justice that specific policy demands do not get at the root of problem, and serve to maintain a broken and ineffective system. The problem is sizeable: a state structured to perpetrate racist and classist violence (violence that also disproportionately affects particular groups, such as migrants and trans people), which defaults to providing punishment-centred and prison-oriented responses to social harm. This is ‘the carceral state’.

Policy demands have to cover a wide range of areas if the carceral state is to be dismantled. Other position papers have already recommended teaching about British imperialism in schools and urgent action on migrants’ rights. Both of these are essential — since the carceral state is built on Britain’s imperial past and is geared around the exclusion of migrants from the spoils of Britain’s unjustly acquired wealth.^2

During the coronavirus crisis, 450 people in Scottish prisons were released early because of the risk of the spread of coronavirus.^3 33 people in prisons in England and Wales were released early. More than 700 people detained in immigration detention centres were released between 16 March and 21 April.^4 These numbers are not as significant as they should be. But they demonstrate the significant health risks posed in prison and detention centres in ordinary times; the damage done by solitary confinement; and the fact that the costs of holding people in prison might be outweighed by the benefits of having people developing skills and resilience outside.

There is an urgent need, building on the work of inspiring abolitionist campaigners such as Abolitionist Futures, to use these small steps to build a movement to phase out the default use of incarceration as a response to social harm. We should be under no illusions that this requires a large-scale shift in mindset and culture. Other political developments in 2020 — such as the introduction of the Counter-Terrorism and Security Bill and the proposal that individuals damaging war memorials could face ten years in prison^5 — show that carceral mentalities run deep.

But specific steps can be taken to move in an abolitionist direction. The Labour Party had already announced an end to short sentences as part of its 2019 manifesto; there is a good case for all sentences under two years being served in the community, where people can build or rebuild social and familial connections as well as skills. Migrant detention centres must be urgently closed. Problem-solving courts (such as Drug Courts), developed in the United States and recently introduced in New Zealand, can be used more widely to replace incarceration with rehabilitation; greater use of restorative justice is another evidence-based substitute for prison. It is a disgrace that the United Kingdom has the highest per capita prison population in Western Europe.^6


Decriminalisation and legalisation of practices that do not cause social harm are important, to keep people out of prison. Drug law reform, the decriminalisation of sex work, and repeal of the Vagrancy Act are three concrete measures that could form part of this agenda. The World Health Organisation has recommended the decriminalisation of sex work;^7 numerous campaign groups, such as the Sex Worker Advocacy and Resistance Movement, have pushed for change. Existing drug law is clearly failing to reduce stigma around drug-taking and to encourage responsible conversations to support people through addiction: the latest figures showed drug-related deaths at an all-time high in England and Wales.^8 The Vagrancy Act 1824 is an outmoded law unjustly used to criminalise rough sleepers.

Bringing the probation service back into public ownership, in line with the calls of Napo (the trade union for probation and Family Court staff), will end the disaster of fragmented for-profit probation, which has not improved public safety. The Government announced a u-turn on this in June. Probation services must be properly resourced to provide social support to those returning to community life.^9

Particular attention must also be paid to how policies affecting young people can embed a carceral society-wide approach. Inspiring campaigners, such as IC Free, have campaigned against school exclusions, to end “the criminalisation of black and brown young people in our schools and on our streets.”^10 There is a need for an overhaul of youth custody centres — such as ‘secure children’s homes’, ‘secure training centres’, and ‘young offender institutions’ — given the way that these institutions disproportionately damage disabled people and young people with special educational needs.^11


These are merely some of the necessary policy changes; campaigners have been working on these for years, and it is important the politicians and other activists take a lead from their longstanding work. Only if these steps (among others) are taken in a coordinated way — the progressive reduction of prison sentences, support for alternatives (such as special courts and restorative justice), decriminalisation and legalisation of offences, bringing probation into public ownership, and ending school exclusions — can a genuine shift in approach be secured, away from ‘the carceral state’.

Breaking up the Police

Campaigns launched by Black Lives Matter have inspired calls, in the United States and the United Kingdom and elsewhere, to abolish or defund the police. It has been made clear by supporters that these are not metaphorical demands. They must be taken seriously.


In England and Wales, 1741 people have died in police custody following police contact since 1990, according to 4Front.^12 Campaigners such as INQUEST and United Family & Friends have done significant work drawing this to public attention. Experiences during the coronavirus crisis have also helped to shine a light on the institutional racism within the police. Police have been up to seven times more likely to issue fines to Black, Asian, and other minority ethnic people, compared to white pieople, according to work done by Liberty.^13 One chief constable in the West Midlands, Dave Thompson, admitted: “I can’t rule out as a service we do have biases and discrimination.”^14

Many police powers have been approved in the courts rather than being authorised by statute: for example, the police’s use of automated facial recognition techology — currently being challenged in the courts — has no statutory basis.^15 This highlights the lack of democratic legitimacy for much police action. An end to these powers, along with a scrapping of stop-and-search, would ensure greater public control of state action.

There also must be better rationalisation of activities across social services. It is not clear that the police are best placed to provide support for missing individuals, especially when this would require mental health training or skills more suited to trained social workers. The same is true of resolving traffic disputes or neighbourhood complaints.^16

Greater investment in universal basic services — expanded, free public services — can reduce the need for policing. Investments in legal aid might support dispute resolution without recourse to police. Spending on mental health; secure housing; social security; education; drug treatment (including safe injection sites and pill-testing); and family and sexual violence treatment and intervention can also reduce the likelihood of social harm. The US-based #8toAbolition project has made the demand, ‘Invest in Care, Not Cops’.^17 The demand has resonance in the United Kingdom, as well, giving further backing to the need for a National Care Service, as well as other investments in community care.

Writer and academic Amna Akbar has talked of ‘invest-divest’ campaigns, inspired by the 2016 Movement for Black Lives.^18 That same approach is needed in the United Kingdom: a gradual rebalancing in spending, away from the police towards essential social services. Angela Davis has written: Prison relieves us of the responsibility of seriously engaging with the problems of our society, especially those produced by racism and, increasingly, global capitalism.”^19 With a commitment to decarceration — moving away from prison as the default response to social harm — and a renewed emphasis on social services, we will have to confront head-on those problems produced by racism and global capitalism to which Davis refers.


These proposals may sound ambitious to some, insufficiently radical to others. All are rooted in social movements in the United Kingdom, many of which have been given energy by transnational solidarities.

Securing these changes will be no easy feat. Our task is not simply to grab the wheel of the state so that it points in a different direction. The state has been built over time to serve the interests of some and not others. But the proposals set out above are at least the beginning of an effort to restructure that British state, so that we are all able to build a society founded not on exclusion and punishment, but on care and solidarity.


^2: As Nadine El-Enany argues in (B)ordering Britain: Law, Race and Empire (Manchester University Press, Manchester, 2020).

^5: https://metro.co.uk/2020/06/14/people-who-damage-war-memorials-face-10-years-prison-12850253/.

^8: There were 4,359 drug-related deaths in England and Wales in 2018, the last year for which figures are available: https://www.nat.org.uk/press-release/all-time-high-drug-related-deaths-england-and-wales.

^19: Angela Y. Davis, Are Prisons Obsolete? (Seven Stories Press, 2003), p. 16.