Most of us don’t spend much effort thinking about something we wrote a dozen years ago which, in the light of day, was wrong. But then, Radley Balko, to his enormous credit, isn’t most of us.
About 12 years ago, I wrote my first piece of investigative journalism. It was for Reason, about the case of Cory Maye. I’m proud of my work in that case, but one line in my story has increasingly irked me in the years since. It’s this one:
He was skeptical then that racism was the foundational flaw of the legal system. He has since evolved. If you know anything about Radley, he is a dogged chronicler of facts. And in his latest effort, he has done so again:
There’s overwhelming evidence that the criminal-justice system is racist. Here’s the proof.
Radley has amassed overwhelming evidence of disparate treatment of minorities in the “legal system,” a phrase I’ve substituted for “criminal-justice system” because the meaningless euphemism “justice” has never had any business being in there.
For those of us who labored in the trenches, there was never any question but that minorities, or “people of color” as is the preferred description du jour, are grossly disproportionately represented in the ranks of the accused. But for those who doubts our anecdotes, Radley has the empirical proof. Minorities are stopped, searched, arrested, prosecuted and basically treated far worse than white people. Of this, there is no question. There never was.
For decades, the retort by police and their friends was that blacks are more prone to crime, more dangerous, worse people than white people. They argued that it isn’t the fault of the police, the judges, even the defense attorneys, that blacks were disproportionately represented. They committed more crimes. What are we supposed to do, ignore that?
But as the data conclusively shows, this “common sense” explanation is false. The reason there are more black faces at arraignment isn’t because they’re just more criminalish, but because the cops focus their efforts on black faces. We all speed, yet cops stop black drivers. When they do, they search their cars regularly whereas they don’t do so with white drivers. If you look harder at black people, you find more reasons to arrest black people. And even when you don’t find any actual reason to arrest black people, cops have less reluctance to come up with one of those vagaries like resisting or obstructing to arrest them anyway.
It’s not an apologia for crime under the guise of racism. It’s just plain old racism. Police, in general, are of the view that black people are far more likely to be criminals, and even when they’re not, far more likely to deserve to be treated as criminals. The numbers don’t lie. Nor does the reality that every criminal defense lawyer has experienced in the trenches. And the cops don’t see it as racism, but their reality, that they’re more likely to get more bang for their buck by tossing a black kid against a wall than a white kid.
I’ve had more than one retired police officer tell me that there is a running joke in law enforcement when it comes to racial profiling: It never happens . . . and it works.
But there remains the next level of question.
Finally, none of this is to say that race is the only thing we need to worry about in the criminal-justice system. Certainly, lots of white people are wrongly accused, arrested and convicted. Lots of white people are treated unfairly, beaten, and unjustifiably shot and killed by police officers. White people too are harmed by policies such as mandatory minimums, asset forfeiture, and abuse of police, prosecutorial and judicial power.
Perhaps the gravest failing with empiricism is the error of conflating correlation with causation. The current trend is to explain the phenomenon of blatant disparate treatment as “systemic racism,” a fine phrase but for the fact that it’s so vague and imprecise that it offers little of use in figuring out what to fix and how to fix it. As Radley notes, it’s not as if the system works fine for anyone, but that it works worse for people of color.
Much as we’ve become enamored of such phrases as “systemic racism,” it impairs our ability to find viable answers to intransigent problems because it fails to identify distinct problems. It masks two very different problems by wrapping it up in one facile phrase. The legal system is flawed in a great many ways for everyone, not because it’s racist, but because too many of its processes, such as inadequate discovery and concealment of Brady material, are flawed.
And separately, there is entrenched racism throughout the system, most notably with the police, but with everyone else as well. Judges punish minorities defendants more harshly. Prosecutors offer harsher pleas. Defense lawyers don’t try as hard, don’t fight as zealously. Legislators craft crimes directed toward specific conduct more likely committed in poor neighborhoods, which coincidentally are occupied by minorities.
Both of these problems are wrong. Both of these problems demand solutions. But they are not the same problem, and “fixes” for one are not fixes for all. Our reliance on calling out “systemic racism” without recognizing that it is distinct from the separate problem of a flawed legal system for all makes it impossible to focus our attention on the real problem, and hence come up with a real solution, to very real, very brutal problems.
So is the legal system racist? Of course it is. It always has been, and nobody who toils in the trenches wasn’t aware of this all along, even if Radley’s superb effort might be needed for the mopes who deny it. It’s not that Radley isn’t right. He is. It’s just that the problems are broader and deeper than racism, and losing sight of that means we will search for answers in the wrong places.
But is racism the flaw of the legal system, and the elimination of racism the cure? Not by a long shot. The legal system is fundamentally flawed for all who enter it, regardless of race. These flaws need fixing. And the entrenched racism needs fixing. Seeing these problems as distinct might make fixing them possible. Failing to recognize that there isn’t one problem, but many, may warm the hearts of social justice warriors, but won’t make the system work better for anyone.