November 9, 2011

sigma-x asked: Reading the New Jim Crow are ya? Surprised that you haven't read it before! Fantastic and ground-breaking work, in my opinion.

I initially picked it up as a source for an academic paper, but given my virulent opposition to the War on Drugs, her analysis fits right in to my general critique of the modern Criminal Justice system.

I think when one reads Michelle’s work in conjunction with David Cole’s 1999 No Equal Justice, a very clear picture of our criminal justice system starts to emerge that is unsettling at best, and cause for nothing short of moral panic at worst.

To wit: it is often claimed that our Criminal Justice system is racist, but the exact methodology is not often articulated in the public conscience.  While I’m sure you are familiar with the argument, here is how I explain it to people who don’t buy the assertion.

Imagine you have two groups of individuals: call them A and B.  Let us assume that both Group A and B participate in behavior that is punishable as a crime at equal rates.

Now Let us imagine that the police are allowed wide discretion in whom they investigate for crime.  Obviously, if the police decide to pay closer attention to one group rather than the other, they will discover more crimes within that group, and thus, make more arrests.  But remember that both Group A and B participate in behavior punishable as crime at roughly equivalent rates.  Yet because the police pay extra-close attention to Group B, more of Group B’s members end up in jail.  This gives people the impression that members of Group B are more likely to be criminals, even thought Group A participates in illegal behavior at the same rate as Group B.

Now why would police pay more attention to Group B?  This is where the legacy of Jim Crow places a role: for nearly a century after the end of the Civil War, Blacks were disproportionately policed in the South, for both legitimate and non-existent criminal offenses.  This phenomenon happened in the North as well, but to a lesser extent and for different reasons; poor whites were afraid of new competition from Freedmen for their jobs, and this resentment manifested itself in harmful, false stereotypes about the work habits of Blacks, which led many employers to discriminate.  This, of course, led to disproportionate representation of Blacks among the working poor and indigent classes, whom are more predisposed to criminal behavior by virtue of the desperate nature of their living conditions.  So in both the North and the South, Blacks ended up in jail far more frequently (on a per capita basis) than whites.  And once the jails are filled disproportionately with Blacks, society draws the conclusion that Blacks are more predisposed to commit crimes.  This creates a vicious cycle, in which people (including police officers) assume that Blacks commit crimes at higher rates, and thus, they pay a lot closer attention to the Black community than to Whites in the same position, whether intentionally or subconsciously.  That augmented scrutiny then leads to more arrests, which leads to more Blacks in prison, which reinforces the conclusion that Blacks are more likely to commit crime, which leads back to increased scrutiny, and more arrests, etc. etc. etc.

This is the wicked, insidiousness trick that our criminal justice system plays in America:  We have a racially imbalanced criminal justice system that is theoretically colorblind, but practically speaking, punishes minorities disproportionately.  And there’s more to it, of course: the disenfranchisement of felons, for example, leads to a permanent underclass of convicts who can’t vote, can’t find a decent job, and generally suffer under the weight of society’s disapprobation.  This Scarlet Branding of convicts only increases the likelihood that they will re-offend, because often the only way they can make a living is by returning to the very same criminal behavior that they were incarcerated for.  By harshly punishing criminals, we just make more criminals.  And this recursion falls most heavily on disfavored minority groups.

This argument can be hard to make, because at the end of the day, police are still theoretically arresting people who are usually guilty of the crime in question (I disagree with that of course, but that’s another topic).  But what these statistics hide is that a 90+% of Blacks who are stopped by police are neither arrested nor cited for a crime.  In other words, the people who suffer most in this system are innocent folks who are not doing anything illegal, but must still submit to a disproportionate level of scrutiny from law enforcement.

The disproportionate scrutiny of the Black population has gotten so bad that one law professor infamously called for jury members to exercise the privilege of jury nullification in cases involving a Black Defendants with no 3rd party victims.  Paul Butler, the professor in question, was a former Federal Prosecutor, so he had first-hand knowledge of the system he was describing.

My solution?  We can start by ending the War on Drugs.  Then the Supreme Court also needs to overrule absurd decisions like Florida v. Bostick and Whren v. United States, which essentially allow police to a) use their inherently coercive authority to encourage “voluntary” cooperation, and b) allow police to racially profile so long as an independent source of probable cause exists.

We’ve got a long way to go, but there are solutions.  Time will tell if we ever implement them.

2:18pm  |   URL: http://tmblr.co/ZMMjnxBis97E
(Notes: 23)
  
Filed under: politics criminal law criminal justice race relations 
  1. This was featured in #Politics
  2. gallen said: Doing away with the “War on Drugs” is a very good start. A war on drugs is about as absurd a notion as the “War on Terror.”
  3. letterstomycountry posted this