Decolonizing Criminal Justice

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Photo by Jim Hatzell via Flickr

When I first represented indigent defendants in the D.C. Superior Court in the late 1970s I was equipped with a desultory liberal arts education and lots of time.

I spent endless hours in courtrooms waiting for calendar calls, in jails and prisons waiting for prisoners to be brought down, in my office waiting for clients who never showed.

The tedium could be agonizing. While you waited, you either watched what was going on or you went crazy.

And among the things you saw when you watched were endless groups of young Black men being hustled in chains through the courthouse hallways to arraignments, status calls, guilty pleas, and probation revocations.

A callow English major spending his days this way couldn’t help thinking of the literature of the white experience governing empires in the Third World.

The local bench provided a number of personalities apparently modeled on Mr. Kurtz of Conrad’s Heart of Darkness—volatile, racist, sadistic, unconstrained.

Other players embodied the lethargic characters washed up on the hospital veranda in Lord Jim: lazy, bored, incapable of surviving in any other professional environment.

The most mundane matters of routine seemed to be arranged to heighten their dehumanizing impacts. “Conveyor belt” would dignify the process; it was more like “meat grinder.” When you were close to the actual people—clients, victims, their families—and responsible for protecting some of them, this was hard to ignore.

Before long you could see the less spectacular practitioners—for that matter, see yourself — developing the mental habits of the imperial White Man. I don’t mean Kipling characters beating “natives” with rifle butts; I mean decent, intelligent, skeptical, even anti-imperialist, figures like Conrad’s Captain Marlow, or George Orwell in the Burma Police, or T.E. Lawrence promoting Arab autonomy.

It became true for us that, as Edward Said wrote of the colonialist generations, being a White Man was “a very concrete way of being-in-the world,” based on a “rigidly binomial opposition of ‘ours’ and ‘theirs’”—one that meant “even feeling certain things and not others.”

This was never more striking than when you ventured out into conventional white Washington society. Talk about your work at a dinner party and you were treated as an intrepid explorer just returned with valuable news from exotic regions.

There were concrete reasons for this, of course. There was slavery’s legacy. And we all inhabited a world of segregation and inequality brought about by relentless campaigns of red-lining, restrictive covenants, and other discriminatory housing practices anatomized in Richard Rothstein’s The Color of Law and elsewhere.

But beyond this there was a saturating socially constructed reality that had little to do with how Black people were physically quarantined.

Our Georgetown dinner partners never went to Anacostia or other Black neighborhoods but they believed that they knew exactly what they would find if they did go: desolate, violent worlds of full-time predators and their full-time prey.

That was why they stayed at home and relied on intelligence reports from White Men like myself, transmitted by the media.

Our current political debates indicate that this constructed reality is remains just as real to most white Americans as the actual facts of life —quite different and more complex—in the minority neighborhoods are to the people who live in them.

Criminal justice in this country is a matter of Us/Them, Here/There. “They” are enigmatic: in some essential way different from “Us.” In this discourse, Control is no longer merely a means to an end, it has itself become the end that everyone discusses: crime control advocates want to control the population; due process reformers want to control the officials.

Every issue signals a zero sum battle between the irreconcilable state and the individual community stakeholder.

By this logic, any initiative (“Defund the Police)” that sounds bad for the officials must automatically be good for the community. If some other effort (“Black Lives Matter”) sounds good for the community, then it is inevitably seen as bad for the police¾understood to mean “And Blue Lives Don’t.”

Few criminal justice reforms can be enacted, and none of them will be sustained, unless this fundamental mental construct is confronted and replaced. Reformers who neglect that work are building on sand.

Making Lives Matter

Two recent scholarly pieces illuminate the challenge.

In an article in Sociology and Ethnicity Kailey White, Forrest Stuart, and Shannon Morrisey (all sociologists) looked at the 2,245 news stories that covered 762 homicides in Chicago, Illinois in 2016. They estimated the “newsworthiness” of each article by measuring the amount of coverage each received and the degree to which the coverage communicated the “complex personhood” of the victim.

Their approach was meticulous, and their findings corroborate general impressions.

Location mattered. Victims killed in Black neighborhoods received less coverage. Victims killed in majority Black or Hispanic neighborhoods were also significantly less likely to be discussed as multidimensional humans with families, jobs, and interests.

Individuals’ race mattered too. Black victims received less news coverage and were less likely to be acknowledged as complex humans. (Because of our housing patterns, these outcomes were significantly related to the question of where people were killed).

Here is empirical evidence that news media routinely generate and reproduce story lines that systematically devalue minority lives at both the individual and neighborhood levels.

But beyond that, the authors marshal earlier research to make the point that this imbalance in coverage is simultaneously a cause and an effect. The disparities are created in part by newsrooms’ perceptions of what their publics require, but they also “feed back into cultural narratives, territorial stigma, and organizational demands.”

This self-perpetuating cycle not only augments the devaluation of minority communities; it simultaneously reinforces the perceived higher value of White communities.

As the authors put it, “Racial story lines operate much like air pollution; they are hard to see yet clearly poison all of us.”

Studying Communities of Complexity

What if we really looked at the communities we caricature as Them/There?

In a piece in DuBois Review Monica C. Bell underlines the often-overlooked fact that the members of marginalized communities are entangled with the criminal legal system in a variety of ways.

When James Forman published Locking Up Our Own, his account of the role of Black community leaders in launching the War on Crime, it was often greeted as an astonishing set of man-bites-dog revelations. After all, in our conventional zero sum vision of the cities leaders in Black neighborhoods should have only one goal: oppose the law enforcement officials in a tug of war over control.

Forman knew (even if not all of his reviewers did) that this was too simple.

Bell makes the point more explicit by explaining that members of marginalized communities encounter the legal system in at least four modalities: subordination, consumption, resistance, and transformation. She calls on policymakers, scholars and advocates to be aware of all of these modalities and to avoid attending to one or two while neglecting the rest.

But Bell also makes the point that these modalities are not static; they are fluid and situational. This has implications for the Ecology of Criminal Justice Reform.

John Roman has made the acute observation that while reformers want “evidence-driven policy-making” often what we get is “policy-driven evidence-making.” This strategy of choosing an initiative and then applying a metric (say, recidivism rates or conviction rates, or clearance rates) has its limits when reflecting the community’s interest is your goal.

Pursuing this approach when evaluating a pre-decided policy will get accurate answers to the particular question you’ve posed, but it may not answer, or even ask, the most important questions from the community’s point of view.

The good score on one metric may conceal disaster in another modality.

There are statistical techniques that can ameliorate the situation, but the fact is that it’s very difficult for social scientists to find a way to compile and analyze data that does not risk privileging outputs in ways that shortchange the dynamic, overlapping, and often conflicting, interests of community members.

With Bell’s warnings in mind it does not seem so simple to choose a policy or practice and evaluate its results. Yes, you will be able to generate numbers, and you might even, like the English Utilitarians, who ruled India from London, convince yourself that the numbers are moving in the right direction.

But if that is all that you do, you won’t understand what is really going on.

The conventional criteria of “policy-driven evidence-making,” like the criteria of “newsworthiness” can systematically devalue minority lives at both the individual and the neighborhood level.

This is not intended, or even recognized. Just as “wetness” can’t be found in a single molecule of H2O, the devaluation can’t necessarily be found in an individual news story or academic study, it emerges: it lives in the zone beyond the sum of the parts.

Confronting the Event: Truth and Reconciliation

One way to make a start on decolonizing the criminal justice world would be to change our focus from control to safety, and to mobilize fully the power of narrative.

Narrative, as Edward Said put it, “asserts the power of men to be born, develop, and die, the tendency of institutions and actualities to change.” Narrative undermines and interrogates the saturating vision that emerges from the news coverage and the academic studies.

Compare Jennifer Gonnerman’s account in The New Yorker of the destruction of Kalief Browder with the generic news story and you see the extremes exemplified. Spot news reports, can’t do what Gonnerman did, but is a new reporting convention that requires at least an effort to discover some personal detail about a victim, or to follow-up on the homicide’s impact on family and neighbors, really beyond reach? As an aspiration?

And in addition to studying aggregated outcomes we can give real attention to the complex narratives underlying sentinel events.

After all, in officer-involved deaths such as that of Walter Wallace in Philadelphia the community is present in all of Prof. Bell’s modalities: it doesn’t want decompensating men with knives raving on the street; it doesn’t want its mentally ill children killed; it wants to resist excessive force; and it wants to transform the public health and law enforcement responses to people in crisis.

Just as importantly, the practice of Sentinel Event reviews requires direct community participation.

As Tucson’s recent Sentinel Event report on two in-custody deaths of Latino men showed, these event reviews can be done, not “to” or “for” the marginalized communities, but “with” and “by” them. They acknowledge that community agency is the first thing that decolonization requires. The community gets to ask the questions.

james doyle

James Doyle

In fact, event reviews provide opportunities for one of the signature features of successful decolonization: Truth and Reconciliation.

In American criminal justice we’ll need more than one climactic Truth and Reconciliation Commission on the order of the Warren Commission or the 911 Commission.

We’ll need Truth and Reconciliation event reviews as a practice—Truth and Reconciliation as a way of life.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.

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