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Date: Nov. 2019
From: Harvard Law Review(Vol. 133, Issue 1)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 59,890 words
Lexile Measure: 1900L

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CONTENTS INTRODUCTION I. THE NEW ABOLITIONISTS A. The Prison Industrial Complex and the Carceral State B. Abolition Praxis: Past, Present, Future I. Slavery Origins (a) Police (b) Prisons (c) Death Penalty 2. Not a Malfunction 3. A Society Without Prisons C. The Unfinished Abolition Struggle II. ABOLITION AND THE CONSTITUTION A. The Settler-Colonial and Slavery Constitution B. The Radical History of the Reconstruction Amendments C. The Reconstruction Constitution D. The Court's Anti-Abolition Jurisprudence 1. Constitutional Counterrevolution 2. The Court's Current Anti-Abolition Doctrines (a) Colorblindness (b) Discriminatory Purpose Requirement (c) Fear of Too Much Justice E. Flowers v. Mississippi 1. Justice Kavanaugh's Compromise 2. Applying Abolition Constitutionalism to Flowers III. TOWARD A NEW ABOLITION CONSTITUTIONALISM A. Approaching the Constitution Instrumentally 1. Holding Courts and Legislatures to an Abolitionist Reading 2. Nonreformist Abolitionist Reforms 3. Treating the Symptoms While Ending the Disease 4. Creating the Conditions for a Society Without Prisons B. Imagining a Freedom Constitutionalism CONCLUSION

Slavery has been fruitful in giving itself names... and you and I and all of us had better wait and see what new form this old monster will assume, in what new skin this old snake will come forth next.

--Frederick Douglass (1)

You have to act as if it were possible to radically transform the world. And you have to do it all the time.

--Angela Y. Davis (2)


In 1997, Curtis Flowers was charged with murdering four employees of the Tardy Furniture store in the small Mississippi town of Winona. (3) Flowers is black. (4) Three of the victims, including the store's owner, Bertha Tardy, were white, and one was black. (5) Flowers was tried for capital murder six times by the same white prosecutor, Doug Evans. (6) More than two decades after Flowers was first sentenced to death, his case reached the U.S. Supreme Court on one issue: whether Evans's jury selection tactics in the sixth trial violated Flowers's Fourteenth Amendment rights. (7) By that point, the prosecutor's scheme for getting a capital conviction of a black man was crystal clear: Evans "relentlessly]" sought to try Flowers before an all-white jury. (8) Over the course of six trials, Evans used peremptory challenges to strike forty-one of forty-two prospective black jurors. (9)

On June 21, 2019, the Court overturned Flowers's conviction. (10) In a 7-2 decision, written by Justice Kavanaugh, (11) the Court held that the prosecutor's blatant pattern of racial discrimination was so "extraordinary" that it violated the Equal Protection Clause of the Fourteenth Amendment. (12) In dissent, Justice Thomas, who excused Evans's strikes of black jurors as "race-neutral," (13) found solace in one aspect of the majority's decision: "The State is perfectly free to convict Curtis Flowers again." (14) Flowers remains incarcerated; upon his release from death row, he will be taken into local custody again, awaiting a decision from the State regarding the possibility of a seventh trial. (15)

As Flowers v. Mississippi (16) indicates, criminal procedure and punishment in the United States still function to maintain forms of...

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Gale Document Number: GALE|A611498826