In a stunning announcement, Ohio State lawprof Michelle Alexander, whose book, The New Jim Crow, has had an enormous influence on the impact of race in the criminal justice system, has resigned her position and joined Union Theological Seminary.
Law, policy and advocacy have been my world for more than 20 years, and my singular passion for 10 of those years has been finding ways to awaken people to the racial dimensions of mass incarceration and help them see it for the human rights nightmare that it is.
And yet I now feel compelled to change course. I am walking away from the law. I’ve resigned my position as a law professor at Ohio State University, and I’ve decided to teach and study at a seminary.
The “why” isn’t easily explained.
There is no easy answer to this question, and there are times I worry that I have completely lost my mind. Who am I to teach or study at a seminary? I was not raised in a church. And I have generally found more questions than answers in my own religious or spiritual pursuits. But I also know there is something much greater at stake in justice work than we often acknowledge.
Lawyers arguing over the ephemeral concepts of justice and morality is nothing new, and never goes anywhere. As the old (and obviously sexist) saying goes, “women feel, priests believe, lawyers think.” The problem is that those who put too much emphasis on their beliefs are blind to thinking. Belief, by definition, requires neither proof nor thought; it’s just what you believe, even if there is absolutely no basis for it. That’s what makes it belief.
And where better to believe than a seminary?
Without a moral or spiritual awakening, we will remain forever trapped in political games fueled by fear, greed and the hunger for power. American history teaches how these games predictably play out within our borders: Time and again, race gets used as the Trump Card, a reliable means of dividing, controlling and misleading the players so a few can win the game.
This is the language of belief, not thought. Morality is wonderful, but a concept that contributes little to law. Sure, there are many beliefs that are so clear and obvious that we all share them, and are embodied in laws that prohibit conduct everyone agrees is reprehensible. The law often characterizes crime as conduct that is so depraved as to violate society’s accepted morals. We use the phrase, “moral culpability,” to describe the mens rea, the mental state, of actions that compel criminal punishment.
But criminal law has moved far beyond that, being used as a tool to micromanage social policy without any morality component. Is it immoral to cross a street in the middle rather than at an intersection? Hardly. Yet it’s illegal, not because it’s immoral but because it’s a bad idea for the orderly use of the road.
Michelle Alexander recognizes this disconnect:
This is not simply a legal problem, or a political problem, or a policy problem. At its core, America’s journey from slavery to Jim Crow to mass incarceration raises profound moral and spiritual questions about who we are, individually and collectively, who we aim to become, and what we are willing to do now.
I have found that these questions are generally not asked or answered in law schools or policy roundtables. So I am going to a place that takes very seriously the moral, ethical and spiritual dimensions of justice work: Union Theological Seminary. Union has a proud history of deep commitment to social justice, and I am happy to call it home for awhile.
These are important questions. They are simply not questions that the legal system is capable of accommodating, nor should it be. Law is merely a tool, an unfortunately blunt tool, to effectuate the beliefs that society agrees upon. Despite trying to make this point over and over, questions of morality, of which values prevail over which other values at any given time, are the domain of philosophers and priests. Don’t confuse those times when the moral answer seems easy with the notion that morality answers all questions.
When you’re the victim of a crime, your vision of justice, morality, is that the perpetrator be found and punished for what he did to you. When you’re the person prosecuted, your vision of justice, morality, is that you’re afforded your rights, the opportunity to defend yourself from the accusation you challenge by defending against it. Both views are moral, but they are mutually exclusive.
We’re living in dangerous times. The concept of justice has taken on a life devoid of reason, a life based on belief. Many people value the harm done to victims and devalue the system to protect the wrongfully accused, to require that the accused be proven guilty rather than assumed guilty based on accusation alone. Our nation made a choice long ago that the burden of proof be placed on the accuser rather than the accused. It could have gone the other way, as some now desperately believe it should.
Ironically, this belief in social justice is at the core of the harm that Michelle Alexander fought in The New Jim Crow. By over-valuing the harm in the name of morality, we devalue the protection of the accused, who are too often poor and minority. Too many of the deeply passionate refuse to grasp the flagrant inconsistencies of their cries for justice. That’s the beauty of belief. It requires no logic. It just is, no matter how absurd and irrational.
Alexander is right, her concerns have no place in the law. The law creates rules to be applied, when they work, based on logic and reason. There is no place in law for, “but awwww, shucks, I just feel so bad about what happened because it feels so wrong.” And to be fair, the law has done a lousy job of it, as our legal system remains remarkably ineffective at achieving its purported goals despite a few hundred years of trying to get it right. You would think we would be able to do better by now, yet we’re constantly faced with bad results.
As lawyers are the mechanics of the law, trying to stop pipes from leaking and sweeping up the mess on the floor after people do whatever it is they do, criminal defense lawyers defend “those people” because that’s what makes the system work for everyone. Is it moral? Is it justice? Perhaps, but that doesn’t enter into our heads. Most of the people defended in the criminal justice system are poor and black. Many of them have done horrendous things, for which there is no moral explanation. Still, we defend them.
Too many readers here think only of the violent racist cops. They deserve your condemnation, but there are also the victims of crime, real people who suffer terrible harm. People get murdered, raped and beaten by criminal defendants. These are the people I refer to as “bad dudes,” and some are truly evil people. They do terrible things to others, and their victims suffer.
How do you forget this happens too? How do you fail to recognize that real people are harmed by crime and obsess only on the part that confirms your bias? Is this justice? If the system worked as we pretend it does, then the outcome should be justice, should comport with our societal sense of morality, assuming there is a consensus (which there isn’t). Despite the best efforts of the mechanics of the system, it fails with remarkable consistency to achieve whatever people perceive as justice.
So Michelle Alexander wants to ponder the deeper questions? Someone smarter than trench lawyers should. Maybe she will achieve some deeper understanding that will make this system work better for everyone. I can’t see it, but then, I’m not Michelle Alexander. I wish her the best in this endeavor. I sincerely hope she can find answers that I have not. I suspect she will be disappointed, but I can’t fault her for trying. The seminary is the right place to do so, as there is no place for such questions in the courthouse.