Is Our Justice System Deliberately Racist?

Albert Burneko has a provocative essay entitled “The American Justice System is Not Broken.” In it, he argues that the undeniably racist nature of our criminal justice system is not a bug but a feature, that the system was explicitly designed for that very result.

The Atlantic’s Ta-Nehisi Coates has written damningly of the American preference for viewing our society’s crimes as aberrations—betrayals of some deeper, truer virtue, or departures from some righteous intended path. This is a convenient mythology. If the institutions of white American power taking black lives and then exonerating themselves for it is understood as a failure to live out some more authentic American idea, rather than as the expression of that American idea, then your and my and our lives and lifestyles are distinct from those failures. We can stand over here, and shake our heads at the failures over there, and then return to the familiar business, and everything is OK. Likewise, if the individual police officers who take black lives are just some bad cops doing policework badly, and not good cops doing precisely what America has hired and trained them to do, then white Americans may continue calling the police when black people frighten us, free from moral responsibility for the whole range of possible outcomes.

The murders of Michael Brown, Eric Garner, Sean Bell, Amadou Diallo, Sam Shepherd, and countless thousands of others at the hands of American law enforcement are not aberrations, or betrayals, or departures. The acquittals of their killers are not mistakes. There is no virtuous innermost America, sullied or besmirched or shaded by these murders. This is America. It is not broken. It is doing what it does.

America is a serial brutalizer of black and brown people. Brutalizing them is what it does. It does other things, too, yes, but brutalizing black and brown people is what it has done the most, and with the most zeal, and for the longest. The best argument you can make on behalf of the various systems and infrastructures the country uses against its black and brown citizens—the physical design of its cities, the methods it uses to allocate placement in elite institutions, the way it trains its police to treat citizens like enemy soldiers—might actually just be that they’re more restrained than those used against black and brown people abroad. America employs the enforcers of its power to beat, kill, and terrorize, deploys its judiciary to say that that’s OK, and has done this more times than anyone can hope to count. This is not a flaw in the design; this is the design.

Policing in America is not broken. The judicial system is not broken. American society is not broken. All are functioning perfectly, doing exactly what they have done since before some of this nation’s most prosperous slave-murdering robber-barons came together to consecrate into statehood the mechanisms of their barbarism.

The racist history of this country can’t be disputed, of course. But is it true that the actual features of the criminal justice system were designed intentionally to perpetuate that legacy? Michelle Alexander makes a similar, though less blunt, argument in her book The New Jim Crow. It’s certainly possible, but as I’ve argued in the past, it isn’t necessary to explain the nature of the system. We can explain how the system turned out to be so pervasively racist without presuming that this result was intentional. That doesn’t mean it isn’t, of course, and I have no doubt that at least some of the policy makers who designed various aspects of the system did have that intent. But I think we can just as easily explain it as the result of implicit racism, tribalism and a perverse set of incentives that all seem to grow out of human nature with little overt and intentional racism necessary. We may have no way of knowing for sure, of course. But either way, we need to rebuild the entire system from the ground up in order to reform it.

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  • Anne Marie

    I started thinking about the very common idea/argument that black people should just do exactly as the police tell them without any protest if they want to live and I can’t find a way to see that as any different than a slaveowner arguing that if slaves just did as they were told, they wouldn’t get beaten or killed.

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    ” But I think we can just as easily explain it as the result of implicit racism, tribalism and a perverse set of incentives that all seem to grow out of human nature with little overt and intentional racism necessary. We may have no way of knowing for sure, of course. But either way, we need to rebuild the entire system from the ground up in order to reform it.”

    Jim Crow laws were definitely set up with that purpose. There was no systematic dismantling of the law from that time, only piecewise dismantling of the most outrageous.

  • Pierce R. Butler

    The racist history of this country can’t be disputed, of course.

    Yet our esteemed host has posted innumerable examples of Barton, Beck, et al., disputing this.

    All together, now: “Wake up, sheeple!”

  • http://florilegia.wordpress.com Ibis3, These verbal jackboots were made for walking

    I can’t help but think it’s a distinction without a difference. You’re talking about a system set up to benefit the ones who set up the system: white Christian men with property, at the expense of the other: people who weren’t white, weren’t Christian, weren’t men, were poor. What does intent signify?

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    Ibis3, those who set up the system favored some more than others. There is a definite pecking order.

  • http://artk.typepad.com ArtK

    I agree that the motivation for the problems is far less important than dealing with and resolving the problems.

    That said, while I’m sure that there are plenty of people with explicit motivations to create injustice, I doubt that it explains all or even most of it. To modify an adage: “Do not attribute to malice what can easily be attributed to privilege.”

  • Sastra

    There is no virtuous innermost America, sullied or besmirched or shaded by these murders. This is America. It is not broken. It is doing what it does.

    America is not ‘broken,’ it simply still isn’t improving fast enough. The fine, virtuous “innermost” aspect of America which is defied by these murders is the underlying ideals which have yet to be consistently lived up to, not some idealized perfect past we once had.

  • abusedbypenguins

    If black people walked around in the nude, with their hands up, how many would still be shot and killed?

  • http://www.youtube.com/watch?v=_R2XG9CnOj8 Olav

    Ed:

    But is it true that the actual features of the criminal justice system were designed intentionally to perpetuate that legacy?

    In reference to another debate: the criminal justice system was not designed, it evolved.

    And at every step of the way, every law passed and every budget approved, people had the chance to improve the system and make it less racist. If they did not, they made a conscious choice not to. Because of blind privilege, because of other priorities perhaps. Either way, the result is the same.

    Yes, the system is deliberately designed (evolved) to protect the interests of those in power and their base. This should not come as a surprise to intelligent people IMHO.

  • Crimson Clupeidae

    This article is similar to some about the US education system, and I have to agree. The racist, authoritarian features are a design/natural outgrowth, and are not considered a bug at all by those in power.

  • http://www.improbablejoe.blogspot.com Improbable Joe, one of the NEW FOUR HORSEMEN OF GLOBAL ATHEIST THINKY LEADER KINGS EDUCATIONAL FOUNDATION COUNCIL

    One important thing about calling it intentional racism rather than “just the way things are” is that it stops treating the situation like it is natural and beyond our power to fix.

    If the system is fundamentally OK and there just needs some patching around the edges, nothing will ever really change. If the system is fundamentally broken but there’s no one to blame, there’s no one who can be held responsible for changing it. If the system is fundamentally broken, and made and kept that way by design, then it can be remade in a better way and also kept that way through the actions of the people responsible.

  • http://raisinghellions.wordpress.com/ Lou “Weegee” Doench,

    I’m reading The New Jim Crow right now and I think Ms. Alexander lays out a pretty damning case that our current criminal justice system is designed for racial control in order to replace Jim Crow laws. The architects of the Drug War, which is the gateway to the system for so many were almost the exact same people who fought against desegregation decades earlier.

  • abb3w

    “All that is necessary for the triumph of evil is that good men do nothing.”

  • comfychair

    Does the intent really matter, when the results are so plain to see?

  • http://www.youtube.com/watch?v=_R2XG9CnOj8 Olav

    Comfychair $14:

    Does the intent really matter, when the results are so plain to see?

    It is a bit of a chicken-and-egg kind of problem.

    If the results are really so plain to see but nobody does anything about it, to the point where those same results are happening with predictable regularity, then it becomes obvious that people behind the system intended those results to happen. Or they would have intervened.

  • Pen

    If you want to find out if the system is deliberately racist, you might have some luck comparing those aspects of it which seem racist with systems formed in basically monoracial environments? I don’t know what the result would be.

    For what it’s worth, I think that any system or institution necessarily has some latitude for personal and human judgement built in. I think what we’re largely seeing in the US is not institutional racism per se, but good old-fashioned racial prejudice motivating those personal and individual judgements.

  • comfychair

    Is the intent relevant to fixing the problems? Seems to me it’s just a distraction that’ll be used to drive a thousand wedges into a thousand different spots by all the usual suspects and then nothing changes, like always.

    Used to be, the intent of laws restricting voting rights didn’t matter, only the end result of those laws. Didn’t matter if the redistricting was intended to disenfranchise certain groups or if the disenfranchisement just happened by accident, it was blocked just the same. (Though all that’s out the window now, thanks SCOTUS!)

  • Scott Hanley

    Well, most of us here are pretty comfortable with evolution by natural selection, aren’t we? So the idea that function doesn’t imply design should be pretty familiar.

    Has our law enforcement system evolved the way it has because it functions to preserve white supremacy? I can agree to that. But, frankly, terms like “explicitly designed” and “intentional” imply more self-awareness than most people generally exercise. I have friends and family on Facebook who are rushing to point out how often black people hurt each other or post a video of some other black man behaving badly. In my judgement, they’re a hell of a lot more oblivious than they are cynical.

  • http://www.facebook.com/profile.php?id=153100784 Michael Brew

    It definitely isn’t intentional, overall, at least in the way the article seemed to imply. There are still laws on the books that were intended to discriminate against nonwhites but never got taken out because enough people didn’t recognize it. Some laws were passed for other reasons but had racist effects because lawmakers weren’t paying attention and, if you point it out to them, they’ll justify it because thinking they could be wrong about it would cause cognitive dissonance. A few laws are intentionally racist, but don’t necessarily shape the entire system. I think the distinction as to whether the whole thing is by design or due mainly to ignorance/neglect is an important one. Intent isn’t magic, but it’s often crucial to understanding how to fix a problem. Turn it around to see the point. Black people are disproportionately poorer than white people. Is it because they intentionally stay poor due to laziness/gaming the system or is it because of growing up in an environment that tells them they’re dumber, more violent, etc. than white people? If the former than we should apparently be listening to the GOP and Libertarians and make being poor not be worth their time, but if it’s the latter than we should change the way society views black people, create more opportunities, etc.

  • jedibear

    We have a term for this kind of argument: “cynical bullshit.”

    America has an ideal about what our justice system is supposed to be and do and if it’s not living up to that ideal, it is broken.

  • jedibear

    Mind you, I’m generally a fan of cynicism, but stuff like this is a reminder that it’s possible to take it too far.

  • Pierce R. Butler

    Pen @ # 16: … comparing those aspects of it which seem racist with systems formed in basically monoracial environments?

    “Monoracial” environments still have major elements of class structure reflected in their legal codes and practices. I have little doubt that such a study would find that racially biased law systems are only a minor mutation of those designed to keep the peasants and proles in their place.

  • http://www.facebook.com/drew.vogel2 drewvogel

    My first reaction was covered by comfychair @14: does it really matter?

    But then it struck me that there is one area where intent often matters much too much, and that is in federal court. When people try to challenge laws or policies that have a disparate racial impact, they are often flummoxed by the issue of intent. Lawyers will argue that only intentional racial discrimination counts, and all too often federal judges will accept this line of reasoning. This has come up recently in battles over Voter ID laws. Defenders claim that their intent is not to disenfranchise minority voters, but rather to prevent voter fraud, and the mass disenfranchisement of minority voters is incidental. Obviously, this is a lie (disenfranchising minority voters is the intention), but it shouldn’t matter anyway. And yet it frequently does.

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    When I was a kid (I’ll be sixty in a couple of months) I remember hearing a lot of talk about whether discrimination was “de jure” or “de facto” Their might not be laws on the books preventing blacks from moving into a segregated neighborhood, but realtors would be likely to steer black families to other neighborhoods. And it was generally intentional.

    Also, this is not some question where the answers are lost in deep time. There are a fair number of people my parents’ age left, much less mine. ASK THEM!