Abstract

Excerpted From: Lark Mulligan, Knowledge and Punishment: The Prison-industrial Complex and Epistemic Oppression, 27 Scholar: St. Mary's Law Review on Race and Social Justice 173 (2025) (349 Footnotes) (Full Document)

“Nobody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them.”

The police murdered Alton Sterling on camera. They also murdered Eric Garner, Laquan McDonald, and many others; the videos of their deaths garnered millions of views. Information about some horrors of the criminal legal system is spreading widely, yet White mainstream media outlets frequently dismiss, erase, or demonize Black, Indegenous, and People of Color (“BIPOC”) communities who protest and organize to demand justice through the abolition of or radical changes to the policing and prison systems.

In response to these racist atrocities and within the broader context of criminal legal reform, activists and academics frequently craft ethical arguments such as: “Solitary confinement is immoral because it inflicts psychological and physical torture” or “Incarceration is unethical because prisons are inherently violent places.” Many ethical arguments center on the racist injustices and harm that affronts human dignity and agency caused by prisons and police. Others critique the racist and retributive ethics of “law and order” rhetoric. Each argument is well-supported by accessible data that can be found in numerous studies, books, articles, and media. However, people often erroneously dismiss these data-driven, logical, ethical reasonings as factually inaccurate, or many respond with a deeply racist ethical-legal rationale, for example: “While there may be abuses in prisons, some people need to be put in solitary or prison and deserve it because [insert classical legal rationales for punishment: deterrence, retribution, rehabilitation, etc.].”

Ethical and legal arguments are severely limited, however, when they lack an epistemological interrogation into the power structures that determine what qualifies as “knowledge” within the ethical-social conversation. This article demonstrates why anti-prison activists' ethical arguments generally do not receive the due credibility and weight they deserve unless they pair critical liberatory epistemic practices with material, institutional, and social transformations. Abolitionists claiming to fight the confines of carceral epistemologies cannot merely sit back and point out the already-existing logical contradictions in the criminal legal system--it is not enough.

Kristie Dotson, a Black Feminist Epistemologist who writes on epistemic oppression, provides key insights to this article's discussion of ethics, epistemology, and social change. These questions are deeply intertwined with concerns about the interplay of power and knowledge - specifically, how White supremacist ideologies control what qualifies as a valid argument in the context of legal and social reform and transformation. Feminist Epistemology supports Critical Race Theory by examining the ways gender, race, class, ability, and other categories of social control influence the construction of epistemological concepts. To effectively understand the existing harms inflicted by our legal system and prevent future threats, we must actively examine the methodology of knowledge that undermines legitimate arguments against mass incarceration.

This essay narrowly applies Dotson's theories into the context of the prison-industrial complex (PIC), and seeks to answer two main questions: 1) Why does the PIC continue to grow despite verifiable contradictions between what it purports to do and what it actually does? and 2) How can a critical legal-epistemological approach help identify barriers to solutions for prison abolition? Several critical race theorists correctly argue that White supremacy prevents fundamental changes to U.S. legal institutions because many White policymakers and electorates refuse to give up the benefits and wealth attained from these oppressive institutions, whether they are consciously racist or not. This article argues that White supremacy operates on an epistemological level to resist fundamental, progressive change through detailing the epistemic mechanics of how White supremacist knowledge systems successfully maintain the PIC. The second question - how can we abolish the PIC? - depends on understanding why anyone believes in the system in the first place.

The central argument of this article is that, although many activists and scholars focus on using ethical arguments against mass incarceration and other White, oppressive institutions, prison abolitionists must base their arguments on liberatory epistemic frameworks because genocidal incarceration can be dismantled through the elimination of: 1) racist carceral epistemologies discrediting criminalized people; 2) obscured information about these people; and 3) resistance against changing the status quo of knowledge systems and power.

Part II will lay out Dotson's three-tiered framework of epistemic oppression, as well as the baseline principles of Feminist Epistemology making her theories plausible. The first tier is testimonial injustice - silencing and discrediting the voices of oppressed individuals. The second level is hermeneutical injustice, in which oppressive ideologies coercively structure and obscure systems of knowledge, preventing the oppressed from accessing epistemic resources to articulate their lived experiences within the context of oppressive knowledge frameworks. Following Dotson, this article argues that the first two forms of epistemic oppression - testimonial and hermeneutical injustice - are reducible to material, political, and historical causes. However, she describes a third form of epistemic oppression called epistemological resilience, which is an inherent feature of the knowledge system that is not reducible to the material. All three orders of epistemic oppression interconnect, and Dotson argues the importance of addressing all three in conjunction to achieve liberatory goals.

Part III of this article argues that criminalization creates systemic credibility issues for those whom it targets: BIPOC people, particularly individuals experiencing various inequities like gender, disability, and national origin. This section will analyze impeachment by prior conviction, voir dire case law, treatment of police testimony in court, the REAL ID Act, and the Prison Litigation Reform Act. It also analyzes the epistemological significance of “collateral consequence” legislation, including felon disenfranchisement laws, criminal restrictions on changing one's legal name, and the Personal Responsibility and Work Opportunity Reconciliation Act.

Part IV argues that criminalization produces hermeneutical injustice, and the PIC systemically excludes oppressed groups from defining their own lived experiences. This section will examine Sexually Violent Predator laws and how they coercively perpetuate myths about sexual violence as the consequence of an individual's pathology rather than systemic oppression.

Part V argues that the PIC creates epistemic oppression through epistemic resilience - meaning the knowledge systems underlying the PIC can withstand criticism, contradiction, falsification, and outright assault without yielding to any fundamental, progressive change. According to Dotson, epistemic resilience is prevalent when a marginalized speaker's testimony is considered unreliable because outside perception views it as unrelatable, unrealistic, and absurd. This section argues that naming and understanding epistemic resilience is crucial to the project of prison abolition. To illustrate epistemic resilience, this section examines the courts' markedly dismissive responses to litigation by pro se litigants, with a particular focus on prisoners and individuals seeking reparations.

Part VI proposes strategies for abolitionists to counteract all three levels of epistemic oppression by developing liberatory epistemic practices and frameworks. Addressing epistemic resilience is perhaps the most crucial and challenging aspect of combatting epistemic oppression, particularly for lawyers. While this article ultimately concludes that lawyers cannot achieve the goal of prison abolition without grassroots mass mobilization led by those directly affected by the PIC, this section will explore how lawyers can integrate abolitionist epistemic practices into their legal work.

Part VII concludes that the PIC is intrinsically dependent on all three orders of epistemic oppression for its existence. Due to the irreducible nature of epistemic resilience, abolitionists must engage the PIC on an epistemological level in addition to pursuing material transformative strategies. Abolitionist epistemology requires radically redistributing epistemic agency from the PIC to criminalized individuals; it involves deconstructing carceral hermeneutics and creatively replacing them with alternative, liberatory knowledge systems.

[. . .]

The PIC requires testimonial injustice, hermeneutical injustice, and epistemic resilience to exist, and these three orders of epistemic oppression within carceral epistemologies enable a person to watch countless videos of police brutality and still believe in policing. The irreducibly epistemic nature of carceral epistemologies means that prison abolition must require moving beyond arguments that incarceration and policing are morally wrong, and take strategic aim at components of the PIC that exercise a great deal of epistemic power. This requires redistributing the credibility within the context of the legal system, including significant changes to voir dire, evidentiary rules, and jury instructions, as well as the abolition of the PLRA, PRWORA, and collateral consequence laws. Second, abolitionists must deconstruct and abolish carceral hermeneutics like SVP laws. Finally, abolitionist epistemology requires dismantling institutions that generate carceral concepts, such as “criminals” and the police, while simultaneously resolving problems the PIC purports to address.

Much of this epistemic work does not rely on traditional legal remedies at all. Many activists and their communities have instituted libratory epistemic practices; however, these practices should be informed by the valuable experience of activists on the ground. The Zapatistas, Freedom Square, and the Chicago Reparations Ordinance are a few examples of activists who are instituting libratory epistemic practices that challenge the foundations of dominant oppressive epistemologies.

Abolitionist lawyers are tasked with changing how the legal system structures what we know, how we know, and why we know. We must change the material and epistemic conditions underlying knowledge production and knowledge sharing in the legal system and society. Only when we change the conditions of knowing to embrace radical epistemological change will the ethical claim “incarceration and policing are wrong” be both cognizable and convincing. Revolutionaries need epistemologies that embrace change, self-determination, perspectival differences, and decentralized community-based knowledge and accountability practices while rejecting punishment, hierarchy, objectivity, and control. We need to fundamentally change what it means to know something--the concept of knowledge itself--if we are to achieve and sustain the material revolution. Many activists have already begun such generative epistemological practices, and it is in the best interest of attorneys to follow their lead.