The Volokh Conspiracy
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Contradictions of Socialist Prison Abolitionism
Many "democratic socialists" want to abolish prisons. But this is in conflict with their objective of making many more activities illegal.
"Democratic socialists" are a growing movement on the political left. And many of them are also prison abolitionists. But there is a deep contradiction between their socialism and their abolitionism. Socialism requires making numerous economic activities illegal, and those laws have to be enforced by some system of punishment. As the history of actual socialist states shows, serious attempts to implement socialism lead to vastly greater incarceration (and other punishment), not less. There are a number of possible ways to try to escape this contradiction. But none of them work. The tension is relevant not only to full prison abolition, but also to any plan to significantly reduce incarceration and punishment without eliminating it completely.
What is Socialism?
Before going into detail, it is worth emphasizing that "socialism" here means government control of all or most of the economy, not simply an increase in welfare spending or a marginal increase in certain discrete types of regulation. This is isn't just my idiosyncratic definition. It's what actual leading socialists say they want. For example, the platform of the Democratic Socialists of America (DSA), America's most prominent socialist organization, states that they seek to establish a system under which "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses; they are common goods." That requires a complete government takeover of these massive parts of the economy. The DSA and other socialists also seek to massively extend government control even over those parts of the economy that they might not socialize outright. For example, they advocate extensive rent control, a massive increase in employment regulation, and so on. Elsewhere, I have described how - in combination - these demands would amount to socialization of the vast bulk of the economy. It is not simply a matter of making the US more like Denmark or Sweden, countries with large welfare states, but also generally market-based economies (in some respects more free market than the US).
Socialist prison abolition isn't just a strawman either. For example, the DSA has an "Abolition Working Group," which, among other things, advocates "Freedom for all incarcerated people." Prominent socialist candidates for political office also have a history of advocating prison abolition.
The Contradiction
There is a blatant but generally ignored contradiction between socialism and prison abolitionism. Socialism requires making a wide range of economic transactions illegal, and those laws have to be enforced by some system of punishment. If, like the DSA, you want to ensure that "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses," but instead make them "common goods," you will have to make it illegal to provide those goods and services for profit, and punish people who violate the relevant laws.
Historically, attempts to do this created vast black markets, especially since government control of these and other industries routinely resulted in shortages and low quality, caused by knowledge problems and poor incentives. I was born in the Soviet Union. Almost all my adult relatives and their friends acquaintances were involved in illegal black market transactions of various kinds. Often, it was the only way to get even minimally decent-quality goods and services, including food, medicine, and transportation. For example, my mother's two cousins operated a black-market auto repair business, which prospered because the official state-owned auto repair shops were predictably terrible and unreliable. If they had gotten caught, they might well have (you guessed it!) ended up in prison. Others illegally produced and sold food, acquired and sold black-market medicine and clothing, and so on.
Socialist governments sought to suppress these activities, usually through massive coercion. If they did not, the extent of black market activity would have been even greater, and socialism would have been even further undermined. Repression and punishment didn't completely eliminate black markets. But it did enable the state to retain control over the "commanding heights" of the economy, and at least somewhat reduce the amount of illicit economic activity overall.
Similar logic applies to severe economic regulations that fall short of complete socialization. For example, if like many socialists, you want to impose severe rent control or very high minimum wages, you will have to punish people who dare rent out housing at higher rates or hire workers at lower wages. And such black market activities are predictable, because high minimum wages price numerous lower-skilled workers out of the market (thereby increasing unemployment) and rent control predictably creates housing shortages.
The bottom line is this: socialism requires making a lot of things illegal, and enforcing that requires punishment. That's why actual socialist states have imprisoned (and often killed) large numbers of people as a natural byproduct of their economic policies. The Soviet Union, China, Cuba, and others routinely imprisoned or killed large numbers of people who engaged in illegal "capitalist" transactions. Consider, for instance, the fate of the "Kulaks" and their counterparts in China, Cuba, and elsewhere.
No Way Out of the Dilemma
There are several theoretically possible ways to escape this contradiction. But none of them actually work - at least not in ways that modern Western socialists are likely to find morally acceptable.
Many late nineteenth and early twentieth century socialists argued that a socialist society wouldn't need much of a carceral apparatus, if any, because socialism would lead to a transformation in human nature. "New Socialist Man" would obey the law without the need for coercion, because he would no longer be violent, selfish, and greedy, as people are under capitalism.
Sadly, though predictably, this never worked. In actuality, "socialist man" was just as violent and greedy as the capitalist version, often even more so. Ask almost anyone who has ever actually lived in a socialist state.
And the same is true of "socialist woman." Women, on average, commit fewer crimes than men. But like, men they don't commit less under socialism. While there is no good data on the subject (in part because socialist states have historically banned transgenderism), the same is likely true of transgender people. Today, most socialists no longer promise a fundamental transformation of human nature. And for good reason!
A second possible solution is to rely on non-prison punishments, such as fines and community service. But what happens when people refuse to pay the fines or do the service? Then, you have to enforce the penalty with the threat of prison, or some other more severe punishment. Ultimately, there can be no effective enforcement system that isn't backed by violent coercion. As liberal Yale Law School Prof. Stephen Carter puts it, people should "never support a law they are not willing to kill to enforce."
That still leaves open the possibility of using non-prison punishments that are as much or more severe than imprisonment. Pre-modern societies had few prisons, but made extensive use of corporal punishment and the death penalty. We could potentially bring back flogging, and the rack, and greatly increase the use of the death penalty. That would show those greedy capitalists! As an extra bonus, corporal punishment and the death penalty save money on incarceration costs. You don't have to pay room and board for people you flog or execute. Socialist dictators like Lenin, Stalin, Mao, Castro, and Pol Pot, have in fact made extensive use of mass executions.
Obviously, however, modern socialists who want to abolish prisons are unlikely to support replacing them with even more cruel forms of punishment. Or so I hope!
Finally, there is the option of having prisons, but calling them something else. The USSR, China, and other socialist states had a long history of establishing mass incarceration facilities that, at least in theory, were distinct from ordinary prisons, Gulags, "reeducation camps," and so on. Currently, the Chinese has state has forcibly detained over 1 million members of the Uyghur minority. But these detention centers aren't called prisons, but "vocational education and training centers." So that makes it OK!
Obviously, conditions in these facilities are just as bad as those in conventional prisons, and often much worse. Serious prison abolitionists should not take refuge in this kind of ridiculous hypocrisy.
How to Actually Reduce Incarceration
Prison abolitionists - not all of them socialists - aren't entirely wrong about the need to cut back on incarceration. They're just wrong about how to do it. And, at least so long as we don't have a fundamental transformation in human nature, they are wrong about how far it can go.
Prison abolitionists are right to point out that imprisonment is a severe infringement on liberty, and that conditions in prison are often terrible. Ironically, that's true precisely because of the kinds of economic incentives socialists otherwise tend to ignore.
For-profit businesses have strong incentives to keep quality up and prices down because, otherwise, consumers can reject their products in favor of competitors. A business that loses out to competitors will have reduced profits, and often has to close. By contrast, prison inmates have little or no choice about where to serve their sentences, and administrators and guards are not going to lose profit or suffer reductions in pay if the inmates aren't satisfied with their "services."
Moreover, prisons contain a lot of violent and dangerous people. And guards and administrators often have only weak incentives to keep them from preying on fellow inmates. Often, the guards themselves might be safer if they just look the other way! Thus, we often get awful prison conditions, and widespread inmate-on-inmate abuses, including such things as ubiquitous sexual assault.
In theory, voters can monitor prison conditions and vote out politicians who allow abuses to persist. But, in practice, most voters are "rationally ignorant" about public policy and have little sympathy for prisoners even when they do hear about the bad conditions. Thus, bad prison conditions are a very difficult-to-fix structural problem.
For those reasons, it is important to reduce the extent of imprisonment. And the way to do that is to reduce the number of activities that are illegal, not increase them! One of the few issues the DSA platform gets right is their call to abolish ICE. I agree, and have long advocated the same idea, myself. But, unless we just want to replace ICE with another agency likely to engage in similar abuses, the plan can only we work if we either legalize much currently illegal immigration, or at least cut back on mass deportation (thereby necessarily reducing immigration enforcement). If we want to keep out and deport large numbers of immigrants, there is no way to do that without an extensive system of detention and expulsion that is prone to grave abuses.
Socialist prison abolitionists recognize this truth when it comes to immigration enforcement. But it also applies to their own proposals to make a vast range of "capitalist" economic activity illegal. In both cases, we end up with large black markets that require massive coercion to even partially suppress.
Ultimately, imprisonment should be reserved for those activities that are so bad that perpetrators deserve to be incarcerated under bad conditions, if that is the only way to achieve retribution and deterrence. Such crimes as murder, rape, assault, theft, and so on, qualify. Illegal migration does not. And the same goes for virtually all the "capitalist acts between consenting adults" (as Robert Nozick famously called them) that socialists want to ban. I would add that this problem is an additional reason to get rid of the War on Drugs, which accounts for much our current mass incarceration. About 43% of federal prison inmates and 20% of total inmates (including state and local) are incarcerated for nonviolent drug offenses.
If we want to cut back on imprisonment, abolishing - or at least severely cutting back on - immigration restrictions and the War on Drugs would be a great way to start. Socialism, on the other hand, is likely to make the problem worse, by necessitating a far more extensive carceral state than we have already.
We cannot completely abolish imprisonment and other similar punishment. At least not so long as there are at least somewhat common human activities that we want to suppress. But we can greatly reduce its use.
In fairness, the statist economic policies advocated by right-wing nationalists have many of the same flaws, and I have written about that, at length. But the flaws of the nationalists don't justify those of the socialists, and vice versa. Indeed, socialists would do well to keep in mind that they coercive apparatus they establish to enforce their economic policies could, at some point, fall into the hands of their ideological adversaries. Even if they trust their ideological comrades to exercise that kind of power, do they have similar confidence in the likes of Donald Trump?
The issues addressed here do not definitively resolve the issue of the appropriate role of government in the economy. If the benefits of a given interventionist policy are large enough and cannot be achieved in any other way, they could potentially justify even a substantial increase in imprisonment and other coercion. But it is essential to keep in mind the tradeoff between making more activities illegal and cutting back on the carceral state. That's especially true when making an activity illegal predictably incentivizes the creation of a large black market. You can't have socialism without a massive apparatus of state coercion. And that, at the very least, strengthens the case against it.
UPDATE: I originally accidentally linked the 2025-26 DSA platform, rather than the more recent version, which contains the language I quoted. I apologize for this oversight, which has since been corrected.