Back when I was a novice defense lawyer (almost 50 years ago) I often led visitors from white, “national” Washington, D.C. through the old Police Court buildings on Judiciary Square, off Fifth Street, NW.
My charge that racism saturated the place wasn’t hard to support.
I could provide disturbing thrills for my tourists—simply allow them to watch with their own eyes the chained groups of young Black men being hustled through the hallways on the way to arraignments, guilty pleas and sentencing.
Anyone could see that something was wrong.
But keep doing indigent defense work and it won’t be long before you’re no longer the guide. Soon, you’ve become part of the exotic scenery yourself. One day, I wasn’t just in the criminal justice system; I was of it—a “Fifth Street lawyer.” (Albeit in a decent suit.)
That’s never really changed, and that’s the perspective I’m writing from now. There are many reforms I want to see, but I don’t qualify as a professional Reformer.
When people talk about “systemic” racism in criminal justice my colleagues on the frontlines—the cops, court officers, defense lawyers, prosecutors, probation officers and trial judges who jostled each other in the hallways and lockups of the old “Building A” back then, and whose successors populate every courthouse now—hear you say that they are “systematic” racists.
But “systemic” and “systematic” are radically different ideas. Confusing the two in confronting criminal justice problems is disastrous.
The error isn’t a problem because it hurts people’s feelings. It’s a problem because it cripples us in pursuing our real task.
If we want to attack systemic racism we have to build a system in which everyone can both see and fulfill his or her individual responsibility for achieving a safe and just collective outcome.
‘Systematic’ Racism vs ‘Systemic’ Racism
A “systematic” racist acts according to a fixed plan and purpose—wakes up each morning with racist harm as a goal and works through the day to inflict it.
Yes, you really can find those people in the system, and in every role in the system.
Although I number at least 50 murderers among my acquaintances, only one of those makes it to my private list of Dozen Worst People, and he barely ekes in. (Tied for twelfth.) The other places on the roster are taken by judges, cops, probation and corrections officers, and lawyers.
Among that array of criminal justice types there are certainly racists—narcissists and sadists too. The criminal justice system provides them with a congenial environment. If you happen to be a racist, then a job as a cop or a trial judge is a very good job.
Once they find a spot, they enjoy the work; they stay a long time; they do a lot of damage.
But they are badly outnumbered. The vast majority of the people who work in criminal justice are doing their best in jobs designed for them by others with tools they didn’t choose themselves. They really have no fixed plan to do harm.
They are just trying to get through their days, and during those days the safety they are preoccupied with isn’t public safety; it’s their own. They would in all sincerity deny any racist intent, and although their surprise when they are confronted with the statistical proofs of racial bias might not be overwhelming. It would be genuine.
They do harm anyway, and the distribution of the harm they do is racially biased.
The numbers are simply irrefutable. But it is crucial that we recognize that the racism they enforce is “systemic”—a property of the system, not of any lone individual part of the system.
You can’t find “wetness” in any single molecule of H2O, but you don’t have to do that to believe that “wetness” exists. You don’t have to find a racist plan or purpose in any individual criminal justice actor to see that racism, as an emergent, “systemic” property, is all around us.
In fact, we’re drowning in it.
It’s fine with me if we chase down the “systematic” racists and excise them. I want to see that happen. The mistake is thinking that once we’ve done that we will be finished with racism.
The “systemic” dangers will remain.
It is very easy for me to believe that the Minneapolis cop kneeling on George Floyd’s neck, and the Chicago cop firing shots into Laquand McDonald’s prone body followed systematically racist agendas during their careers. But it isn’t good enough to see them as causes of tragedy and stop there; we also have to understand them as effects: as systemic products of a culture.
Once they are gone, the same system, if not repaired, will simply generate their replacements.
Who hired them? Why? Trained them? Why that training? Who supervised and monitored them? Who was empowered to intervene when they acted out their racist plans?
Who saw, or missed—or saw and ignored—the red flags in their lives and careers?
Who created the environment in which their racism was subjected to no more control than Mr. Kurtz’s in The Heart of Darkness?
I don’t think the answer to that last question is “people with a fixed racist agenda, methodically pursued.” In fact, a whole crowd of people followed system maps down various paths of least resistance until things reached a tragic terminus.
Punishing Performance, or Learning From Events
Whether we are going to punish people is a different question from whether we think they can and should do better next time.
Two recent officer-involved deaths in Tucson, Arizona provide a striking example of the contrasts between a punitive and a learning-oriented approach.
Carlos Ingram-Lopez died after Tucson police, responding to a 911 call, found him naked and ranting in his grandmother’s garage, then learned that there was a warrant outstanding. They subdued Ingram-Lopez with handcuffs, a “spit sock”, and simple physical force.
He was killed in the process.
The death has generated two documents. Both are aimed at “accountability,” but the valuable part of reading them is that each approaches accountability in a distinctive way.
One is the Pima County State’s Attorney’s office’s 14-page memorandum explaining the decision to decline to prosecute the cops. In this report the “account” in “accountability” refers to a debt to be paid for misconduct. The relevant statutes are recited; the sufficiency of evidence standard is applied to each of them. The result is that no individual will be charged.
People might agree with that outcome or disagree, but the second document makes it clear why simply prosecuting (or dropping the prosecution of) the cops is a bad place to stop.
The Tucson police chief, Chris Magnus, determined that the in-custody deaths of Ingram-Lopez and of another man, one aggravated by the Department’s failure to handle the death with prompt transparency, called for a Sentinel Event Review aiming at a different sort of “accountability.”
In this review, the “account” is not a narrow assessment of a debt to be paid; it is a story—a full narrative of how this happened and why, aimed forward to prevent it happening again.
The SERB, led by Michael Scott of Arizona State University’s Center On Problem-Oriented Policing, and John Hollway of the University of Pennsylvania’s Quattrone Center for the Fair Administration of Justice, took an “all-stakeholders” approach that included community representatives and mobilized outside subject matter experts.
The point was not to lay blame (or shed it) but for the Tucson Police Department to hold itself “accountable for learning” what had gone wrong, why it had gone wrong, and how it could it assure the public that it would do everything possible to prevent a repetition.
The Tucson PD’s SERB’s product is very striking. The group produced a searching analysis, uncovered over 32 contributing factors, and generated over 50 recommendations for change. It uncovered a whole range of system weaknesses that could be addressed.
For example, among the report’s features is a close analysis of frailties in the police dispatch function’s Spanish language capabilities—the exchanges between Ingram-Lopez’s grandmother, the dispatcher, and the responding officers left the officers ill-informed about the medical state of the man they were trying to subdue.
In other words, the SERB report identified about as good an example of a “systemic,” unintended, source of racial bias as you could describe, and in a city with a large Latino population. The Ingram-Lopez death would not have been the last time that the lack of Spanish translation capacity would constitute a tragic vulnerability.
Chief Magnus and the SERB supplied Tucson residents with something no one offered the people in Minneapolis after George Floyd’s death, or the people of Rochester after Daniel Prude’s: a painful, comprehensive, and transparent effort to understand what went wrong, and why.
Too often after criminal justice tragedies—after a death in custody, a wrongful conviction, or an officer-involved shooting during a traffic stop— we look for the “systematically” racist actor or practice, and when we fail to find one, we walk away.
The public hears this as “Nothing to see here, move along,” and believes that the criminal justice professionals don’t much care if the same thing happens again.
But if we keep looking for “systemic” weaknesses we can see how everyone involved in every role—not just the cop on the scene, but also the dispatcher who sent him, the trainers who prepared him, the Department officials who assessed language needs—can make an individual contribution to a safe collective outcome for all citizens, of all races, speaking every language.
The Tucson SERB report is a model document because it shows us how to harvest dozens of ways to do just that. It also shows us how, by including the community in the process, we might begin to heal after a tragedy.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.