Tuesday Talk*: Where Does Race Fit Into Reform?

I’ve been sending an occasional post over to Berny Belvedere, Editor-in-Chief of Arc Digital, as my way of contributing to heterodoxy with a little legal twist. Berny’s proven to be an excellent editor, and his efforts have made me sound a lot smarter than I am. One such example went live yesterday evening. Berny wrote the headline.

Criminal Justice Reform Is Not Just About Race

Politicians and activists have been picking the trendiest, not the most just, reason to change the law

This may prove to be not only a very controversial assertion, but one that will engender outrage and screams of racism from the woke. So why do it and test the mob? Because someone from the criminal defense side of the world needs to question the orthodoxy. After all, everyone knows the system is racist. Everybody in your bubble keeps saying so. Academics keep saying so. How could it possibly be otherwise?

As I write, even though it shouldn’t have been necessary, it’s not that racism isn’t pervasive in the criminal law system, even though you might be led to believe that there isn’t a white guy to be found in prison and it’s only the marginalized who end up on the cellblock.

This, of course, is nonsense, although nobody on the left wants to mention it as it undercuts their narrative, but it doesn’t change the fact that the system disproportionately impacts Black and Hispanic men. Yet, that fact, and it is undoubtedly a fact as the numbers don’t lie, does little to help and plenty to harm, from pushing unsound reform to failing to build a consensus of support for sound reform by ignoring why good, smart, strong arguments benefit everyone, without regard to identity or politics.

So, am I wrong? Am I just another foolish Old who doesn’t get it? Or is the echo chamber of progressives patting each other on the back for their exemplary wokeness conflating one problem for another, and by doing so, making it hard, if not impossible, to do the heavy labor of thinking when they would much prefer to scream racism as the answer to all societal ills?

*Tuesday Talk rules apply, even though today is Wednesday.


38 thoughts on “Tuesday Talk*: Where Does Race Fit Into Reform?

  1. Keith

    Your post at ArcDigital seems to presuppose that an appeal to a racial arguments is always unnecessary, because the reform would be logically sound without it. While, that may be accurate in a theoretical space, reform (by legislators) also needs to be worthy of expending limited political capital.

    If the end result is a worthy and just one, wouldn’t hitching my wagon to a flawed argument (racial or otherwise), in order to get over the finish line, be a good thing?

    There’s a difference between policy having a sound argument and the pitches that are put forward to support it.

    On many complex issues, with nuanced policy implications, I have found that many people do not deal well with those complexities. If that’s what I see on the local level, I can only imagine the complexity of passing legislative reform at state or national levels – where the conversation happens among hundreds of thousands or even millions of people.

    Do any of those let out of jail, or even better, not arrested in the future, care how sound my argument was.

    1. SHG Post author

      That’s the passionate advocates’ argument, that they are justified in doing, saying, anything to attain their goal. Problem is that attaining reform on false premises gives you bad reform, and when the lie only works within one’s echo chamber, will it attain the goal anyway or just make you feel all woke and fuzzy on the path to failure?

      1. Keith

        Problem is that attaining reform on false premises gives you bad reform

        Why? Shouldn’t it matter whether the goal can stand on it’s own as a valid one, rather than whether what’s used to support it is valid?

        1. SHG Post author

          If the object of reform, whether discovery or bail, is to reduce racial disparities because that’s the problem, then you seek solutions to eliminate racial disparities rather than provide due process. There is no viable reform that’s going to eliminate racial disparities because they’re entirely separate problems, so any reform that addresses racial disparities is going to be bad and ineffective as procedural reform.

          1. Keith

            If the stated object of reform, whether discovery or bail, is to reduce racial disparities….

            I’m still not convinced that arguments pointing to specific sectarian benefits, can’t support good reforms, if that’s what it takes for the woke to embrace them.

            I’m open to being convinced, though.

            1. SHG Post author

              As for my purpose being to convince you (because you’re kind enough to be open), that’s more Jake’s job. As for your substantive question, if you believe the disease is polio, you create a vaccine for polio. If the disease is really cancer, then creating a polio vaccine won’t help. If they craft reforms to fight racial disparities, then the reforms will be designed for that purpose and will fail to serve the needs of due process, an entirely different problem.

  2. John Barleycorn

    55 claps and rolling for a man over 55… 😉

    Speaking of editors and ‘claps’….. Was “…not currently getting anywhere near the process we are due.” – all discovery- or was that the sound of one hand clapping into the echo chambers that keep training scared cops assuredly knowing DA’s have the flu, the judges are cool, and blue discovery blindness only makes the “other people” blue?

    P.S. And speaking of reform…. isn’t it about time for a new byline mugshot?

  3. Richard Kopf

    SHG, actually, “everyone [does not] know[] the [criminal justice] system is racist.” Those who know the criminal justice world intimately know that labeling the system “racist” as a primary motivation for change sends the rabbit down the hole trying to find its tail.

    Scott, what I fear is that your essay will not enrage. Rather, I fear it will be ignored among the race-baiting (read poverty propaganda) that is the intellectual foundation of the left’s raison d’être for changing the criminal justice system and eliminating airplanes. We don’t need to debate race, we need to debate reform. Fact is, the two are not the same. Trust me, I have never worn black-face.

    All the best.


    1. SHG Post author

      You caught me Gertruding, for which I plead guilty. I want to move the argument away from “it’s all about racism” to it’s all about due process, etc. The crim reform activists (and most academics as well) are so locked into the narrative that decoupling without at least some acquiescence is impossible.

      There’s a place for race in the debate, such as why cops randomly tossed black kids against walls as part of their “stop & frisk” tactics, or why it was acceptable to seal off 168th Street to randomly search everyone on the block when they would never consider such a thing on Sutton Place. But these are separate problems from how to legislate bail, discovery, and the myriad other legal problems in need of reform.

      1. John Barleycorn

        Holy Tintinnabulation esteemed one!

        You talking Adoration-Contrition-Petition-AND-Thanksgiving now…?

        Or some sort of twisted opera getting all blue-book on us after the white-papers kneel in act two and start showing some respect for grey-literature before the green papers start stirring shit up left and right in act three?

        Damn, dude what you waiting for, an indictment from the grand jury or what?

        P.S. Minstrel show is still a go but it is looking like the three city kick-off tour is gonna top 4.7 million. Should turn a profit, if everything goes according to plan, after that and no one gets arrested though…Just think of the blue-book footnote possibilities!!!

  4. CLS

    I’ve read your Arc Digital post twice now and I’m afraid I’m going to side with Judge for two reasons.

    First, you’re asking the wokescolds to think. As you’ve often stated, thinking is hard. It’s far easier for the terminally progressive to simply pat themselves on the back, cry #racism, and opine there’s no way around that nasty, racist criminal justice system.

    Second, your bio disqualifies your opinions as valid in the eyes of the wokescold. To them, you’re a white cisgender criminal defense lawyer. Since you’re not of a marginalized group, they’ll brush your suggestions off as invalid since you’re not living their experiences or some other bullshit line.

    And instead of maybe taking a second to get even a little bit angry, or even do the hard work of putting emotions aside and think, the wokescolds that might read your post will shrug and say “meh, it’s all racism anyway.”

          1. Richard Kopf

            Doubtful. Your 6×4 Trail Gator with 12 inch plow, probably in camo, screams white cisgender misogynist of the first rank.

            All the best.


  5. Igor Kaplunov

    It is the unfortunate fact in America at least that innocent until proven guilty gets a backseat. For one person who truly believes there seem to be 10 people that either watch Nancy Grace or fervently support laws named after dead children. The whole view of police as seeking justice is so soaked through modern society that it makes me roll my eyes hard whenever I hear it. But if they push through a reform that actually does something positive by maybe greasing the rails with something totally unrelated that is still a number of people who won’t get totally screwed by the insanely broken system that American justice is and I will cheer for that.

    1. SHG Post author

      Many people will happily take really poor reform over no reform. But while we still have a chance for good reform, perhaps our efforts would be better spent going for it than coming up with excuses.

      1. Igor Kaplunov

        The good reform gets pushed through vewy vewy quietly. Like the Mike Lee minimum sentencing reform or the New Jersey bail reform. By the time we heard about it it was done. Intelligent people had a rational discussion outside of the media spotlight and came up with something good and then went through with it. Outside of that in a public forum we can’t talk objectively about things like justice reform because it’s so easily derailed with heckler’s veto. “If it was your family!” etc. So you fight fire with fire. One inflammatory idea to counter another. The people devoting energy to inflammatory causes are highly unlikely to devote their energy to something that is and always will be a grey area between emotions, a sense of right and wrong, and analysis of cause and effect. The resulting outcome is clumsy and not very effective but I will always choose a band-aid over hopes and prayers. That said maybe I’m missing something here. I would genuinely (cross my heart I’m not being sarcastic) like to know what you think would be a better approach here.

  6. Jake

    “So, am I wrong?”

    No, but you’re not right either. The problem with that post on Arc and this one is you are conflating policy and politics. If you think there are reasons which are sufficient to mobilize the masses, spill ’em.

    Otherwise, you are just criticizing from the sidelines. Which is your right to do, but it doesn’t make it right. After all, as you so often point out, people’s lives hang in the balance.

    I like to play this little game when you veer into the issues nobody, beyond your echo chamber, (and people who share their political views) cares about. I pretend your post was boring. You clobber me. It’s fun. You never seem to understand the larger point I’m trying to make. But that’s OK because of the lols.

    1. PseudonymousKid

      Pops isn’t on the sidelines, he’s on the field shouting as loud as he can to everyone else fighting in the stands. While his views are his own, there’s an underlying principle you’re obviously missing in your fight to make some sort of observation, whatever that is. Don’t worry, though. Thinking is tough, and ignorance is bliss. Be careful not to learn too much. It might hurt.

      Are the masses really too dumb to get through a revolution without you leading them or playing to their feelings? Leave the vanguard party nonsense to history, please. The masses aren’t yours to mobilize.

      1. Jake

        Let’s say, for the sake of argument, I concede that there is some grand underlying principle so complex and elusive and I am just too stupid to get it. So what?

        Criminal Justice is public policy. Eventually, public policy moves when public opinion moves sufficiently to change votes. You, me, the Honorable Judge, SHG, and everyone else in the country who shows up at the polls gets one vote. It’s true the lobbyists and their legislative tricks will play shell games while the masses aren’t looking but a. that only lasts so long and b. it obviously hasn’t achieved what we want, or we wouldn’t be talking about it.

        So we’re left with convincing people that what we believe is important to them. As evidenced by my history here at SJ, lobbing a rhetorical hand grenade at the other side rarely works. Yet here’s our host, rubbing his hand gleefully after doing just that with an “echo chamber of progressives”.

        Which, by the way, would have been very smart (since it gets attention) if it was followed by: Here’s what’s left to be done, and here’s how we can do it together.

        1. PseudonymousKid

          Pops is on the field. The “masses” are in the stands. You’re in the stratosphere if not farther out. The air must be really thin up there.

          You asked “so what?” I think you’re sincere, so I’ll answer. If you are truly too stupid to get it, it isn’t possible for you to have an informed opinion at all. What followed is nonsense. Or maybe I’m just too stupid to figure out what you’re on about. Na, it was nonsense.

          1. Jake

            “If you are truly too stupid to get it, it isn’t possible for you to have an informed opinion at all.”

            You still don’t get it, I have failed to properly illustrate my point: An informed opinion is not a prerequisite for voting.

            1. SHG Post author

              Your lack of clarity is rather glaring today. Let me try: if you are arguing that this is just a public marketing pitch, so why not use whatever is available, I explained that in the Arc piece fairly clearly, that most people aren’t persuaded by an argument that has very limited appeal outside the tiny social justice echo chamber, and is counterproductive for the most people.

              Why? Because most Americans believe that if blacks are disproportionately convicted, they deserve to be because the committed the crimes. They are also generally supportive of civil rights, but not at the risk of their home being robbed or their daughter raped, and if they’re criminals, they aren’t saved by their race. In other words, the arg not only fails to create broader consensus, but is a reason not to reform the law. It loses worse than George McGovern riding Michael Dukakis’ tank.

            2. Jake

              “…most people aren’t persuaded by an argument that has very limited appeal outside the tiny social justice echo chamber…”

              Criminal justice reform is the goal. To achieve this goal, legislation is necessary, therefore winning hearts and minds is a strategy. We are living in the age of micro-targeted messaging and personalized political advertising. Frothy emotional appeals to one block of voters is a tactic. Rational appeals to another block of voters is also a tactic. Merely criticizing any effort to reach any set of voters without stating any alternative objectives or tactics is unhelpful at best and counterproductive at worst.

        2. me.not.you


          “… Frothy emotional appeals to one block of voters is a tactic. Rational appeals to another block of voters is also a tactic.”

          That sounds magical. In that, what you are saying falls under magical thinking. Oh but guys you just need to tailor the messaging to the biases of the constituent and shazam. Where your idealistic theory completely breaks down is once moral psychology is applied. Movated reasoning; contempary understanding of moral trait differences between politcal ideologies; & the “disgust” factor; create the prefect storm to interfere with cognitive processes.

          The ‘progressives’ see this as a ‘fairness’ issue. Therefor, once you remove any language that doesn’t suggest the issue is ‘unfairness to mornitoies’, their post hoc reasoning is to see such suggestions as disgusting and therefore wrong. With a strong chance someone is getting called ‘racist’ or shamed for ‘victim blaming.’

          Meaning as many of the much smarter then me people have tried to tell you. Any legislation language rooted with the remedy focusing of racial issues, will FAIL to address the actual back-end issues and will just fix the front-end bugs.

          Also tell me, how did the COIN strategy work in the Middle East?

          1. Jake

            “Oh but guys you just need to tailor the messaging to the biases of the constituent and shazam.”

            I’ve never heard the explanation of how Trump became president more eloquently put.

  7. B. McLeod

    I’m sure if they were to reflect on it at length, they would see there is a class thing at issue too. It is an old story.

    1. PseudonymousKid

      Right on, comrade. Don’t be a brocialist, though. Make sure to gertrude enough so as not to split the left into never-ending factionalism, please. Class consciousness is fragile.

  8. John Neff

    The demographics of crime victims also show strong dependencies on gender, age and race/ethnicity. Is there any social justice flatulence about that?

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