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Amber Guyger Should Not Go To Prison

The former Dallas police officer should be held accountable for killing Botham Jean, but sending her to prison does not keep us safe.

People pay their respects at the funeral service for Botham Shem Jean, 26, at Greenville Avenue Church of Christ on Sept. 13, 2018 in Richardson, Texas. Jean was killed by Dallas Police officer Amber Guyger. Photo by Stewart F. House/Getty Images

Amber Guyger is a murderer who should be held accountable for killing Botham Jean. Jean’s family and our community deserve justice. But in the interest of justice, Amber Guyger should not go to prison.

Recently, just one year after Dallas police officer Guyger shot and killed the 26-year-old Jean in his own apartment, she stood trial in State of Texas vs. Guyger, charged with first-degree murder. The outcome of the case was uncertain, but what was certain, what we could be absolutely sure of, was that the calls for Guyger to go to prison would be swift and resounding. And so they were when she was convicted of murder last Tuesday and then sentenced to 10 years in prison the next day.

I join organizers, activists, and even prosecutors in demanding justice for Jean. By “justice,” prosecutors mean a guilty verdict and prison sentence. But I join Jean’s brave 18-year-old brother Brandt, who in his victim statement told Guyger “I don’t even want you to go to jail.”

Brandt’s words should challenge us to re-examine our own notions of justice and punishment. Ultimately, justice for Botham Jean and for our community does not necessitate incarcerating his killer. 

Too many well-meaning people mistake prison for justice and confuse punishment with accountability. We do this not through shortcomings of our own, but because we live in a country obsessed with cops, courts, and cages. We haven’t seen many alternatives to punishment-driven, racist, and capitalist reliance on cops, courts, and cages.

Because we have not seen any other version of pursuit of justice in the criminal legal system, many of us never considered moving punishment from the top of our goals. Because we haven’t imagined what non-carceral justice would look like, there is a natural tension when we are challenged to define justice as other than prisons and punishment.

Even when we see our neighbors abused by cops, mistreated by courts, sent to cages, we ache for all of the above. Many of us understand “The New Jim Crow” and don’t need convincing that the American criminal legal system is a coordinated tool of white supremacy. We decry mass incarceration and need no convincing that it too is borne of white supremacy.

Yet, despite our collective stated opposition to mass incarceration, and even though we understand that the criminal legal system is inherently racist and designed to protect privilege, power, and property while further marginalizing poor people and disproportionately harming people of color, we turn to that very system of oppression. If we are ever to dismantle white supremacy, we must be willing to consider that its chief foot servant, the criminal legal system, must be abolished—not reformed, not restructured to move some marginalized people into positions of perceived proximity to power. If we are to end mass incarceration we must abandon the carceral tools of criminal punishment. Abandon, not lessen the reliance upon. 

I am an abolitionist. High on my list of institutions we should abolish is prisons. Abolitionists want and work to create a world where prisons need not exist. A necessary step in abolishing prisons, a prerequisite to ending mass incarceration, is stopping the inhumane practice of keeping people in cages—even people like killer cop Guyger. Why? 

Because people do not belong in cages. 

That this sentence—without qualifiers—should be so controversial is disheartening. Our foremothers were kidnapped, shackled, and brought to stolen indigenous land in cages. From chattel slavery to present, cages have been an omnipresent part of the American criminal legal system, and an inextricable feature of the Black American experience. Abolitionists who worked to end chattel slavery understood that people did not belong in cages. And that maxim is as true now as it was during Jim Crow, as true then as it was during the trans-Atlantic slave trade.

When I say people do not belong in cages, I am usually met with agreement. But when I tell those same people that I am working for prison abolition, they reply: “But won’t we need prisons for killers like Amber Guyger?” No. State of Texas vs. Amber Guyger illuminates why we need to abolish prisons, not why they should persist

Many situations lend themselves far more easily to the case for abolition than Guyger. When a man is exonerated after decades falsely convicted on death row, we all see that he shouldn’t have been in a cage. When five young men who were caged as teenage boys finally have their names cleared, surely we all know they shouldn’t be in a cage. Families separated at racist borders, children accused of minor, undesirable behavior in school and then hauled to juvenile detention by school resource officers—who among us believes they should be sent to cages? We sympathize with these people and understand that they should not be in a cage.

We have less, if any, sympathy for Guyger, because she has so little in common with the death row exonerees, with the exonerated Central Park Five, with children and innocent immigrants.   

The people for whom we have sympathy don’t deserve freedom only because of their innocence—though of course that too—but also because of the improbably divisive contention: People do not belong in cages. So how can we point to Guyger as evidence of the need for abolition? It is because we demand abolition not just for Guyger, but in spite of her.

We work toward abolition because of who we are, not because of who she is.

In November 2016, a Black woman in Tarrant County, Texas, named Crystal Mason cast a provisional ballot. She had been recently released from federal prison and was later arrested, tried, convicted and sentenced to five years in prison for “illegally voting.” In Texas, where one innocuous mistake—allegedly attempting to cast a ballot without intending to violate the law —can send a Black woman to prison, how can a white woman who killed an innocent man not go to prison as well? 

When answering that question, when considering what should be the consequences for the actions of these two women, our choice is not binary. Our options in pursuit of justice are not limited to Mason and Guyger both going to prison, or one goes to prison but the other doesn’t. We should champion a third outcome: Neither woman should be imprisoned—not because of an innocent mistake, and not after murder.

When people defend the need for prisons they cite the Guygers but never the Masons. Although many are caged and over-sentenced for “violent” crime, there are also hundreds of thousands incarcerated for committing crimes of poverty and addiction. Of the 2.3 million people caged in the United States, 745,000 are held in county jails, mostly pretrial, for offenses far less serious than homicide only because they can’t pay bond.. In recent years, we’ve expanded the caging further to include many thousands of immigrants not charged with crimes at all.

In refuting the conflation of justice with imprisonment, we must examine the makeup of the American prison population because often when the idea of abolition is raised, the response is “what about killers? what about Amber Guyger?” It’s a fair question, but it’s not appropriate as a foundational question. Because it represents a scenario that is not consistent with the realities of prisons, then it deserves to be answered with another question: In what other circumstance would you build a system based primarily to address the outliers, instead of building a system around the most common occurrences? 

This is why we must interrogate just what harm we perpetuate when we demand justice in the form of imprisonment. By relying on systems that seek to punish Guyger with prison, we ensure there is a cage waiting for Mason. When we demand prison for anyone, we are complicit in our own oppression.

But  if we create systems that deprioritize violence and punishment, and demand accountability from Guyger instead of just retribution, then we will have no cage to which to send Mason.

A world that does not cage Mason must be a world that cannot cage her. The outrage at Mason’s sentence cannot be directed at individual system actors alone, especially because they appear to have acted within the permitted confines of their official duties.

Prosecutors have enormous discretion, but the prosecutor in Mason’s case did not create a new statutory offense for her. The judge did not break Texas law by finding her guilty and sentencing her. They did what they did to Mason, they prosecuted and imprisoned her, because they could. Justice would be a world where they can’t.

If Mason wins her appeal, it will be the just result, but it is not enough. Reversing her conviction provides no systemic accountability; we can expect more racist prosecutions of people unjustly disenfranchised, not less. If her sentence is set aside, as it should be, the prosecutor still prosecutes, the judge still sentences, the next Mason awaits, and because we are addicted to incarceration and punishment we have a prison bed already waiting for her.

Surely justice for Mason would be her never being prosecuted in the first place. Justice would be her right to vote having long since been restored, or better yet, her never having been disenfranchised. But absent the ability to turn back time, justice must entail ensuring that no one else endures such injustices.

Similarly, justice for Jean cannot depend upon imprisoning Guyger. Justice requires working toward a world where what happened to Jean can never happen again. And if justice for Jean starts and stops with the prosecution and imprisonment of Guyger, then there is nothing preventing this tragedy from happening again. If we leave the criminal legal system as is, or even continue trying to reform it, we ensure that this will happen again.

Challenging ourselves to think about what justice can be—if not prison punishment—is daunting but doable. American reliance on the carceral trio of courts, cops, and cages must be undone if we are ever to reverse mass incarceration. Rejecting that reliance means rejecting prisons. Rejecting prisons must mean exactly that, because an analysis that relies on who deserves prisons and who does not, is quite literally the system we already have. It’s a system that we acknowledge is racist, classist, and counterproductive to goals of safety and justice.

Watching the prosecution of Guyger was unexpectedly difficult for me. Much like Jean, my own beautiful Black son is a college graduate in his 20s, a single young man with no children, living on his own for the first time, excited to be thriving in his burgeoning career. I see how easily my son could’ve been Jean, Trayvon Martin, or Jordan Davis. I cannot fathom the depths of their mothers’ grief.

But it is not only being a mother to a Black son that made this trial particularly difficult for me; what made the Guyger trial so difficult to watch is that this prosecution has been strong. As my friend, a trial attorney in Virginia said, “They are prosecuting her like they would prosecute us.”

A competent, earnest prosecution—inextricable from the criminal legal system—is painful to witness because it demonstrates what a prosecution can look like when the district attorney seems to actually want to convict the police officer who shot an innocent unarmed Black person dead. 

In this trial we saw, many of us for the first time, the state utilizing its resources to punish someone—a white female police officer at that!—for killing one of our own. In a world where so much hurts, where prosecutions of those who kill Black people are so deeply flawed, it was a blessing, a relief to finally be the one advocated for, not the one persecuted. But we cannot let that long overdue relief translate into compliance with the system that conspired to kill Jean.

The rare criminal prosecution of one killer cop or an even rarer conviction—like Guyger’s—do not justice make. Perhaps prosecution and conviction can be components of justice. They may even be necessary, but never sufficient. If justice is to exist in this criminal legal system, then it must exist no matter the verdict. Justice must be in the process; no individual case can be the arbiter of whether justice exists. We must ask and answer: How will imprisoning Guyger change the behavior of the next Guyger? More important, how could sending Guyger to prison protect the life of the next Jean? These goals must outweigh our justified desire for vengeance, for retribution.

If we send one homicidal police officer to prison, are we collectively safer? Does convicting Guyger reverse racism? Is it even an inch toward a system free of the racism that Jean and every other Black person in America experiences? Are Dallas police any less likely to commit acts of excessive force whether on or off duty? These questions must be answered when we ask but what about the killers? What about Guyger?

We owe it to ourselves, to each other, and to our community to interrogate the converse: What about Jean? Sending Guyger to a cage does not keep us any safer than we could be with her outside a cage. Incapacitating her, preventing her from being able to harm again—that we must do, but prison is not necessary to achieve this safety goal. Permanently barring Guyger from access to firearms and excluding her forever from law enforcement keep us as safe from her as we can get.

Sending Guyger to prison won’t keep us any safer from her, and worse, and herein is the real danger to our safety—it will mislead people to think the racist American criminal legal  system is finally working for us.

If we accept, and we should, “New Jim Crow” author Michelle Alexander’s contention that the criminal legal system is working exactly as intended, and that the system’s intent is certainly not to protect Black lives, then we need to understand that within that system occasionally—not often—a white cop will be punished for killing an innocent Black person. This is to be expected; it is a feature, not a bug.

Guyger’s conviction allows us to collectively exhale in relief that finally someone will answer for killing one of us—but this is the system working as intended.

The outcome in Guyger’s case fortifies the American injustice system. Any version of justice that fortifies the system that killed Jean cannot also be justice for him.

When I tell you I want a world without prisons, I mean it. But I do not mean that we must raze every prison and jail and detention center by year’s end. What I mean is that in order to reverse mass incarceration we must close and empty cages. And in order to keep cages closed, we must stop making new prisoners. This is foundational, not aspirational: Our work for justice cannot exclude the people who have caused the greatest harm, but, similarly, neither should we use those few people who commit the greatest harm as the measuring stick of whether anyone else deserves freedom. 

Crystal Mason deserves freedom. Countless death row exonerees deserve freedom. Does Guyger? I don’t think so. But I want it for her anyway. Wanting abolition for people with whom we sympathize means working toward abolition for the people we revile.

If you champion abolition for certain people and situations but not others, then yours is not a call for abolition but for sentencing reform. If your strategy to end mass incarceration is putting more white collar criminals in prison and freeing folks caged only on petty drug offenses, then you don’t want fewer people in prison, you just want different people in prison.

The justice we should seek for Jean is the justice we should seek when anyone in our community is harmed, principles taught to us by proponents of restorative and transformative justice: Stop the harm; prevent the harm from reoccurring; make whatever amends can be made for the harm, no matter its magnitude or nature.

Prosecutors insisted that there must be consequences for Guyger, and yes, there should be. But it’s not just the exoneree or sympathetic survivor of prison violence whose stories demand that we reconsider our carceral obsession; it is also Guyger.

If putting Guyger in a cage ensured no cop would ever again kill an unarmed Black person, I might volunteer to lock her cell door and then toss the key. If prison for Guyger meant the criminal legal system worked–not as intended by design—but as abolitionists desire, then I could call for her to be under the prison too. But not only does imprisoning Guyger do neither of the above, it does something more insidious. Sending Guyger to prison further entrenches us in the oppressive American criminal legal system. Imprisoning Guyger fortifies a system that by design has for generations disproportionately persecuted—policed, prosecuted, imprisoned—Black Americans.

If we valued Jean in death although we failed him in life, then we would be brave enough to imagine a world that doesn’t teach Guyger to expect that her life matters more than Jean’s, a world without the racist system of policing and punishment that caused his death, and to work for that world.

Guyger should be held accountable for killing Jean. But so long as we prefer punishment to accountability, violence to safety, we just brace and wait for the next dead Black young person. It’s not a matter of if, but when. Instead of inflicting state violence on Guyger and punishing her with prison, we should demand justice from the system that already employs the next killer cop.

Neither criminal legal reform or gun control get us there, and imprisoning Guyger doesn’t. Prison abolition does. Anything short of the pursuit of abolition means a recommitment to the cops, courts, and cages of the criminal legal system. 

Amber Guyger deserves to be labeled a murderer by the system in which she worked because the prosecution proved their case beyond all reasonable doubt. She may even deserve prison. But because we value the life of Botham Jean, because we want to end mass incarceration, and because we seek justice—we must oppose imprisoning Guyger.

Elisabeth Epps is a lawyer and abolitionist based in Denver, Colorado. She directs the Colorado Freedom Fund and is Pretrial Justice Organizer at the ACLU of Colorado.