Balko’s Half An Epiphany

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.

11 thoughts on “Balko’s Half An Epiphany

  1. Billy Bob

    So if the system is as flawed as you say, why can’t we fix it? If something is broke, you fix it or trash it. That is the Amerikan way.

    Either the majority of us refuse to recognize what’s obvious to you and your brethren, or we recognize but don’t care. We like it the way it is. Many of us benefit from a dysfunctioal system.

    1. John Neff

      My observations out here in flyover county is that denial and indifference are important factors. The system was racist in the 1800s and there was no political will to change it. Maybe that will change as the minorities gain political power but the power elite won’t give up power without a fight.

      1. SHG Post author

        Was the system racists in the 1800s? While some bits, like the War on Drugs, is credibly attributed to Nixon wanting to keep minorities down, much of the law is fairly banal in its applicability to malum in se conduct. Does racism alter that conduct? Is it better to be murdered by a black guy than a white guy?

        1. John Neff

          If the legal historians are a reliable source the penalties for immigrants were harsh and the penalties for Blacks exceptionally harsh. That is why I think there were race dependent penalty and parole policies in the 1800s.

          I have read all of Iowa wardens reports to the legislature that I could find. When there was data about the inmate distribution by race there was a large Black disparity. The earliest example was during the Civil War. Between the Civil War and 1890 there were few data points and from 1890 to 1978 there was data every two years with some gaps in the 1970s. After 1978 there was data every year. The large Black disparity existed in Iowa long before the War on Drugs and my impression was that it was considered to be normal.

          BJS had collected data (with some gaps) on prison admissions by race from 1922 to 1984 that they published in 1988. Their data showed high Black disparity during the entire span of their study. The Iowa data is something I found more recently most of it is in the U. of Iowa Law library.

          1. Billy Bob

            That’s aamazing, Neff. We did not realize you were so talented. Funny thing: Iowa is a”northern” state. Yea, we did Iowa for four years and Missouri for two. As soon as you crossed the border, Dred Scott, they talked Southern. Weird! Our latest conversation with the clerk in Lincoln Co. was encouraging. She said it was not so bad now. Lincoln Co.
            and surrounding areas were “Sundown Towns.” I.e., kneegrows out of town by dark. They were permitted only along rivers and tributaries. Unwritten naturally. We did much better in Iowa and were entirely ccocomfortable. Today, we like Chuck Grassley. And we approve of AG Sessions.

            P.S., They did not take kindly to northern whites either, especially if you were “educated.” Scary place where you could easily be disappeared. Property lines meant nothing and routinely violated by folks you did not know. Some with guns and knives.

        2. Billy Bob

          There you go with your Latinistic lingo. The good news is, you are not as bbad as some. Some of you are truly awful, non sequitur-breath, in limine.

      2. B. McLeod

        It is certainly open to question whether racism actually serves “the power elite” (whomever that may be). What is accomplished for these mysterious few in incarcerating the innocent, or in disproportionately incarcerating the guilty based on ethnic factors?

        1. Billy Bob

          You ask a v. dumb question, McCleod. The power elite consists of anyone and everyone who has the power to deprive another of his life, liberty and property without warrant or justifiable cause, in any small or seemingly inconsequential way.

          Sit down; I have something to tell you. And it’s going to make you v. sadd,..? Power elites are not necessarily those with tons of liquid assets. Would anyone call Warren Buffett or Bill Gates a power elitist?

          I think you should re-read the essay, McCleod, and give it some more thought. Absent that, maybe you could volunteer at a soup kitchen near you, or a homeless shelter? Armchair philosophers we don’t need. Activists and hard-working charitable folks we need.

          Race, religion and all those excuses for exclusion of strangers are irrelevant. Notice, we left out any mention of the Prez, although we were tempted.

  2. John Neff

    I see that you have addressed a problem that has bothered me for a long time.

    “legal system,” a phrase I’ve substituted for “criminal-justice system”

    I think is it a system that emerged at the operational level. Policy and funding appears to me to be done by a set of independent agencies. If it were possible to reduce the case load there would still be flaws.

    I don’t know where the title “criminal justice system” came from and why it became so popular. Perhaps it was first used by a sociology professor they like to simplify things.

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