Dealing with “the legacy of racialized justice”


07.12.09djbDr. Delores Jones-Brown, a former New Jersey prosecutor and director of John Jay College's Center on Race, Crime and Justice, responds to Paul Butler's recent interview with The Crime Report

Far too many Americans blame conditions in “high crime” areas solely on the people that reside there. They either choose to ignore–or they are ignorant of–the legally enforced discriminatory practices that led to the creation and perpetuation of these racially or ethnically segregated enclaves.

The peril of being black and living in certain neighborhoods is captured in the closing lines of a story published in the 2007 issue of DonDiva magazine on the controversial shooting, the year before, of Sean Bell by plainclothes New York City police officers: This criminal justice thing is a game at the highest level and our communities are suckers for playing in it,” the article said. “If you can avoid it stay away from it; but…unfortunately for the Sean Bells of the world, even that might not be enough.”

This is the reality captured by Paul Butler in his just-published book, “Let's Get Free: A Hip-Hop Theory of Justice” – and which he discussed in his recent interview with The Crime Report. Some may question his argument that drug prohibition, and in particular the way that drug laws are enforced, has not only robbed the American legal system of its legitimacy, but has also created a significant counter-culture where going to prison or some form of involvement with the criminal justice system is the norm for many Americans of color. But, I wholeheartedly agree.

Like Prof. Butler, I am an African American former prosecutor having served in the Monmouth County, New Jersey prosecutor's office for three years. My point of view is also informed by my experience as a social scientist conducting empirical research on the police use of informants, as an academic who has studied issues of race and justice for more than 20 years, and as a member of the so-called “black middle-class.”

The truth is, most Americans fail to understand how the criminal justice system affects a large segment of the population. Our country was founded on high-minded legal principles that were developed during a period of overt racial and ethnic discrimination, and we are currently still experiencing the implications of that paradox.

For a vivid illustration of what that means, DonDiva magazine is a good place to start. It will probably not be familiar to many readers of this site, but for a certain audience it is known as the “Original Street Bible.” Its 2007 anniversary issue makes clear why. Multiple articles focus on information intended to be useful to those at risk of confronting the criminal justice system. For instance, one piece warned of the FBI's ability to use cell phones as microphones for eavesdropping on private conversations. Another described the differences between misdemeanors and felonies under federal versus state law. One was titled “Five essential things to know about a criminal case.” And yet another was headlined “Conspiracy law and you!” DonDiva is just one example of the cottage media industry that has arisen to address members of communities where the expectation and probability of involvement in the justice system, regardless of guilt or innocence, is high.

Such is the legacy of racialized justice that Paul Butler's work highlights. Because the law has been used over time as a tool of oppression for some groups and an instrument of progress for others, it is questionable whether Americans can ever reach complete consensus as to what is “just,” and which behaviors warrant punishment and under what circumstances. But it is indisputable that residents of some communities have come to accept the inevitability of getting “caught up” in “the system.”

Prominent scholars such as Robert Sampson and William Julius Wilson use terms such as “concentrated poverty” and “socially isolated” to describe the communities where Butler notes that “catching a charge” is like “catching a cold” Through no choice of their own, children born into those environments begin a process of social learning that is antithetical to much of what we think of as “conventional” ways of thinking and behaving. From the work of Elijah Anderson, we know that even those who are fortunate enough to have “decent” family backgrounds and training must still learn to survive in environments marked by physically inadequate facilities, unsafe and under-funded schools, limited legitimate recreational outlets, virtually non-existent legitimate employment opportunities, and a criminal justice system that presumes their criminality.

In these communities, the police use criminals to inform on others and then reward the criminal informants. In his book, Prof. Butler argues that the “Stop Snitchin” movement is a legitimate response to this situation. My current research suggests he is right. The practice of using informants is particularly prevalent within drug enforcement. Some of those informed on are guilty of crimes; some are not. Either way, this practice sends a mixed message about whether “crime pays,” and creates an environment where no one can be trusted. It is easy to victimize (even violently) those from whom you feel socially distant.

Butler's call for jury ification is a desperate cry for relief from a “war” that, with few exceptions, has created tremendous harm within a finite group (African Americans) that many have argued it was intended to help (see for example the federal mandatory prison sentences originally created to punish crack cocaine offenses). I understand Butler's frustration but firmly believe that even among those most harmed by the enforcement of drug laws, there is still a desire to believe that “the system” can work or that at the very least, that they can win “the game” by playing within the existing rules (with ification being the exception not the rule). Grassroots organizations and others have lobbied for change in drug legislation and are seeing some measure of success. As we continue to document the harm caused by drug prohibition, perhaps it won't take the 10 to 50 years mentioned by Butler, to move away from criminalization and toward some more meaningful approach to addressing the social demand for mind altering substances.

Butler also raises the question about whether young African American lawyers should avoid careers as prosecutors. I can understand his doubts, but I see the matter differently. While a black prosecutor may not be able to affect overarching systemic change, he or she can still provide a different perspective in an otherwise all-white “justice” environment–an environment that, in any given case, might be affected by unwarranted conscious or subconscious racial presumptions. In my experience, such presumptions, if left unaddressed, can result in a myriad of unjust outcomes–ranging from the over-prosecution of a factually innocent minority defendant to undue leniency for a factually guilty white defendant, particularly where a minority victim is involved.

The generic fear of “black” crime or of crime by other visible minorities, leads to generalized suspicion and increased surveillance of people who visually or by language or dialect fall into groups that have been stereotyped as criminal. There is mounting evidence that being educated and gainfully employed does not prevent innocent members of minority groups from suffering under these overgeneralizations. A black prosecutor who has had a similar experience may more easily (than a non-black counterpart) recognize such an injustice when it occurs and take action to correct it. In my opinion, therefore, having prosecutors who come from varying backgrounds has the potential to increase the quality of justice in individual cases, even if it doesn't change the world. Sometimes that is as good as it gets.

Dr. Delores Jones-Brown is a Professor in the Department of Law, Police Science and Criminal Justice at John Jay College of Criminal Justice.

Further reading on “Stop Snitching”:

“Beyond Unreliable: How Snitches Contribute to Wrongful Convictions” and “Snitching: The Institutional and Communal Consequences” by Alexandra Natapoff, Loyola Law Review

“Damned If You Do, Damned If You Don’t” by Marc Lamont Hill,

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