In his magisterial The Collapse of American Criminal Justice, the late Harvard law professor William Stuntz wrote, “The justice system stopped working when a particular kind of local democracy—the kind in which residents of high-crime neighborhoods shape the law enforcement that operates on their streets—ceased to govern the ways police officers, prosecutors, and trial judges do their jobs.”
Attorney General William Barr took the stage at a meeting of the Fraternal Order of Police this month to repudiate Stuntz’s observation.
He complained about “the emergence in some of our large cities of District Attorneys that style themselves as “social justice” reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.”
Don’t mistake this for an argument about competing policies. (Although many progressive prosecutors have responded along those lines.)
And don’t think it is nothing more than a return to dog-whistle themes dating from Spiro Agnew. (Although it was certainly that: the Attorney General even worked in an alliterative homage to Agnew by attacking “prancing punks pelting New York police officers with plastic.”)
Here’s what this is really about. Barr has launched an attack on self-government for communities with substantial minority populations.
He aims to unwind the progress toward restoring the functioning local democracy that Stuntz argued we need and that reform DA’s represent.
The Local Factor
Criminal justice in the U.S. often becomes a national issue, but it is quintessentially a state and local responsibility.
Cities are where criminal justice succeeds or fails; neighborhoods are where the price of failure falls.
Standard American public discourse treats crime and the cities as a question of Them/There.
Suburban white voters never go to Roxbury, or Watts, or other minority neighborhoods, but they believe they know from media accounts exactly what they should expect if they did go. Those expectations are why they stay home.
The nightmare vision of urban life is not exclusively a preoccupation of the right wing; The Boston Globe spent four days in one recent week criticizing progressive Boston DA Rachel Rollins for going “too far” by refusing to prosecute some cases, offering nuanced pleas in others, and expressing skepticism about standalone “assault on an officer” charges.
The Heart of Darkness image of city life cedes control of criminal justice policy to people like Barr, who then righteously administer their stern medicine.
Like colonialist officials in the Third World, their thinking starts—and ends—with control. The idea is to manage mayhem, not foster fidelity to the rule of law.
In Barr’s cosmology, the root cause of crime in the cities is the exotic nature of the people who live in the neighborhoods: the intrinsically different Them who live in the distant (mentally distant, it’s two subway stops away) urban There, and who commit crimes for enigmatic reasons of their own.
Like their colonialist precursors, Barr and his allies have succeeded in hiding—and many of them have hidden even from themselves—the overwhelming role that decisions made outside the communities have had in creating conditions that generate crime.
Areas of concentrated poverty, stripped of educational and health services and economic opportunity, did not just happen; they were created.
And as compelling works such as Richard Rothstein’s The Color of Law make clear, they are not a creation of Them/There, they were cold-bloodedly designed and constructed by the people the Attorney General sees as Us/Here.
Oblivious to Harms
Barr and other critics of the new cohort of DA’s loudly proclaim their empathy with crime victims.
But these players have never managed to muster any empathy for residents whom they themselves victimized every day with their own crime control strategies and practices. (Crime’s victims, of course, live There and are included on that list.)
Having established the conditions that nourish the criminal pathologies Barr and his allies still insist on their unilateral control of the treatment.
For decades their treatment planning has resolutely refused to consider iatrogenic (“from the treatment”) injuries. “Tough on Crime” has meant “Oblivious to Harms.”
Medical treatment—even appropriate medical treatment—often does harm. But, typically, that harm—the scar from the surgery, the loss of function from the medication—is accounted for and weighed in advance.
It is true that you can treat an infected toe with an amputation, but that doesn’t mean that you should choose that option.
The patient will be around once the treatment is over, and the consequences will live on. The patient gets a role in the balancing.
Stops and frisks cause harm. Profligate distribution of arrest records causes harm. Pretrial detention and extended incarceration cause harm. Extended sentences and multiplying technical violations of parole and probation releases cause harm. Traffic stops raise the number of officer-involved shootings.
Fees and fines cause harm.
The city’s residents know that the prisoners have parents, spouses, and children who suffer collateral damage. They know that a fatal police shooting of a young black man harms young black men far from the scene. They know that the prisoners all come back, and that they come back traumatized, untreated, unskilled, unemployed, and maybe unemployable.
Then, the community suffers. Attorney General Barr doesn’t much care, and argues that you (and your DA) shouldn’t care either.
The voters who actually live in the cities have had enough.
They hate crime—and, as James Forman, Jr.’s “Locking Up Our Own” makes clear, they don’t need instruction from Mr. Barr or The Boston Globe about crime’s costs.
But they want the treatment to fit the disease.
Control or Justice and Safety
Progressive DA’s like Kim Foxx in Cook County, Larry Krassner in Philadelphia, and Rachel Rollins in Boston, ran in highly publicized and contested races. They promised during those campaigns to do exactly what they are now doing.
Rollins received 80 per cent of the vote.
The people have spoken.
The question now is whether that expression of democracy will be honored by the police, prosecutors, the trial judges and, sadly, by the Attorney General of the United States.
Barr hopes to stoke a resistance movement among the frontline staff. That’s a traditional tactic.
His pretense that he is concerned only with the position of the frontline cops helps to obscure the fact that majority white state and federal political systems are dictating the lives of voters in majority/minority cities, while simultaneously insisting that those voters are in some intangible way distant and different from the “ordinary” citizen.
But Barr’s F.O.P audience might pause for a few minutes and think hard before accepting the Attorney General’s cynical recruiting speech.
We have an option. Instead of obsessing over Control in the colonialist manner, as if it is an end in itself; we can reconceive of our real goal as being Safety: everyone’s safety—citizens’, communities’, and cops’ safety too.
It could be that the progressive prosecutors are opening up the possibility for a new way of life for the justice system’s frontline troops. It could be that when they go to work they can be (and be seen as) useful collaborators co-producing safety and healing, not warriors offering only amputations and blunt force.
The cops and the communities are in this together; together is the best way to get out.
Local prosecutors can help. Attorney General Barr is trying to hurt.
See also: Why Judges Should Be Wary of Risk Assessment Tools, The Crime Report, Aug. 27, 2019.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.