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.