University of Alabama lawprof Russell Gold opened the abstract to his new law review article with a very provocative assertion: Criminal procedure is systemically racist and classist. He sums up his argument succinctly:
This Article argues that comparing criminal procedure to civil procedure on a broad scale provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law. Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure. One might expect to see greater procedural protections before criminal defendants are deprived of their liberty than for civil defendants before they are deprived of their money. But the reality cuts decidedly the other way.
As to the relative procedural protections afforded criminal defendants versus civil litigants, there is no question that he’s correct. Indeed, this point has been made innumerable times. But what distinguishes Gold’s argument is that there isn’t merely a huge difference between civil and criminal procedure, but that it’s racist and classist. The latter is based on an argument that civil litigants are “often” wealthy corporations whose executives are largely white. The former is that “poor people of color” are “disproportionately” criminal defendants.
The two words, “often” and “disproportionately” are doing a lot of work here, since both create a perception by wiggling through the hard and meaningful language that would reflect reality. If this perception is true, then the fix to these problems will address the disease to be cured. But if they’re not accurate reflections of what’s wrong, then the real problems won’t be fixed and the fixes will fail. It’s a lot like convicting an innocent person for a murder: Not only have you put an innocent person in prison, but you’ve also left a killer on the street.
An example of how inflammatory wiggly rhetoric has created a grossly false impression can be seen in the belief that police are killing thousands of unarmed black people.
A new survey commissioned by Skeptic Research Center reveals the extent to which the public is misinformed on the issue of police violence. Participants across the political spectrum in the nationally representative survey were asked how many unarmed black men were killed by police in 2019. The results were revealing. Overall, nearly half of surveyed liberals [sic] (44 percent) estimated roughly between 1,000 and 10,000 unarmed black men were killed whereas 20 percent of conservatives estimated the same.
Most notably, the majority of respondents in each political category believed that police killed unarmed black men at an exponentially higher rate than in reality. Over 80 percent of liberals guessed at least 100 unarmed black men were killed compared to 66 percent of moderates and 54 percent of conservatives. But, according to a close database compiled by Mapping Police Violence, the actual number of black men killed by the police in 2019 is 27.
Treatment of black people by police is a huge issue, both in terms of use of force and disrespect. But killing them? The hard number is 27, and of that 27, a vetting of the details may distinguish which were justified and which were wrong. But the point is that at its very worst, the number of black men killed by police is 27, not a thousand or ten thousand.
None of this means that cops treat black people properly or that the killing of any black person that should not have happened isn’t both tragic and offensive. What it does mean is that we are not going through an epidemic of racial murders by cops. If we were, that would be the problem to be fixed, and would likely require an exigent and extreme response.
But, as Gold poses, is it not disproportionate and therefore racist?
The second question the survey asked was: “In 2019, what percentage of people killed by police were Black?” While the survey states that the actual percentage is around 25 percent, the average survey respondent guessed 50 percent (58 percent for liberals and 41 percent for conservatives). The disconnect between perception and reality couldn’t be starker.
It is disproportionate, as the percentage of black people in the population is about 13%, while the percentage of black people killed by police is about 25%. But it also reveals that 75% of people killed by police are not black, even if people believe otherwise. It’s still a deeply disturbing percentage, twice what one would expect in a perfect world, but disproportionate does not mean a majority of those killed by police are black, even if the rhetoric creates the perception that it’s at or near that mark.
But it’s still wrong, you say? It may very well be, although each instance requires an individual assessment to determine whether it is wrong, and why it went wrong. Wrapping it up in the “systemic racism” bow informed no one of what happened, and when we don’t know what happened, we can’t know what to do about it.
Yet, isn’t the compulsion to exaggerate reality to emphasize racism, to persuade people who might otherwise not see the actual numbers as sufficiently proving how racist the system is, useful to get white people to recognize that racism is a severe problem that needs to be addressed? Ironically, Charles Blow also uses statistics to raise the problem.
“Among Black respondents, trust in Black Lives Matter has fallen by 12 points and trust in local police has risen by 14 points. Among white respondents, trust in Black Lives Matter has fallen by 8 points and trust in local police has risen by 12 points.”
In every arena it feels that many of the people who performed allyship during the summer protests are regressing to familiar tribalism that doesn’t protect Black life and excuses Black death.
Were the people who took to the streets following the killing of George Floyd mere seasonal allies who have now resumed their white supremacy, or was the heat of their passion turned up too high until it burned out? There is no doubt that many people came to appreciate that there was a great deal in the criminal legal system in need of fixing, but what that was and what to do about it was subsumed by simplistic platitudes. What did it accomplish?
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You ask “What did it accomplish?”
Well I would say here in NNY all it accomplished was to inflame the average person’s passion for the police and against the demonstrators who were destroying their own cities.
All of the people that I know think it was all BS.
Are “all of the people that [you] know” a meaningful metric for anyone else?
Depends on your point of view, it is a meaningful metric to me, and you asked the question.
Since it was a comment here, and not something you mumbled to yourself in the shower, perhaps it would be more useful to take a point of view of “why would anyone else care?” You’re entitled to care only about what’s meaningful to you, but then I’m going to trash your comments because they’re not meaningful here or to anyone else.
“Unarmed” disappeared from one paragraph to the next. Armed
people include those who had a pistol in their glove compartment, a
pocketknife in their pocket, were simply driving a car, or were a
child playing with a toy gun. They’re not fair game, any more than
cops — all of whom are armed — are.
As for race, if BLM had protested the killing of Justine Damond by
the Minneapolis cops in 2017, George Floyd might be alive today.
But Ms. Damond didn’t count because she was white.
The problem is not about white vs. black, it’s about blue vs. all
of us.
Also, BLM would have a lot more support if they weren’t explicitly
Marxist. Marxism had killed enormously more people than US cops
ever have.
Kind of you to explain to criminal defense lawyers and judges that cops are armed. We would never know such things unless you told us.
It’s cool to see Radley Balko’s Washington Post article cited in Gold’s first footnote. He did a much more thorough job than I ever could in providing evidence to support the racial disparity claim. While it’s certainly true the general public overestimate both the number of police killings and the percentage of Black people killed, but that says very little about “whether criminal defendants are disproportionately poor people of color.” Gold’s claim isn’t “ inflammatory wiggly rhetoric”, it’s one supposed by “overwhelming evidence”.
As a minor note, the Post article is sloppy in its language. Mapping Police Violence’s numbers show that police killed 27 *unarmed* Black men in 2019. Police killed 235 Black people, about 23% of the total.
When the priest says “praise god,” the choir responds “hallelujah.” I understand why you desperately avoid the point of posts, but do you grasp why no one finds your efforts so utterly unpersuasive, if not completely idiotic?
If you can’t focus on the point of a post, I’m going to trash your comments from now on. Your choice.
Balko’s article certainly shows disparate outcomes, but contributes nothing as to what the cause is. For those who believe, the answer can only be racism. For those who defend the accused, we sadly know better.
It’s one of those litmus test articles, where anyone who points to it reveals they want more to believe than to know why things really happen.
Hi Quinn. “Disproportionately” is “inflammatory wiggly rhetoric” to those of us with normal reading comprehension skills and without our heads up our asses. I thought you should know.
It is wonderful that the world has finally produced a stellar genius who sees that the criminal system is classist.
“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread.”
Also to sell drugs and mug old ladies. At least for now.
You don’t think that rich people are allowed to sell harmful drugs and mug old ladies? Have you heard of the pharma industry?
I never said “harmful” drugs.
I know. Bad-guy Republican-appointed judges like Alex Kozinski raised this point before, that it’s easier for wealthier people to conceal their crimes from discovery using Fourth Amendment protections than it is for poorer people, because traits like “having a garage” and “living in a single-family home” provide a stronger privacy expectation against searches (or potential witnesses). But it doesn’t constitute real knowledge, the sort of thing you can cite in a paper at a conference, until a tenured law professor recognizes it.
A while back, in a post about how a survey showed that weed sale and use were pretty much the same for white and black, I noted that one reason for disproportionate arrests was that white people tended to buy and use weed in private while black people tended to do so on the street. Whether that’s classist or cultural is unclear. I’ve asked clients about this and have been told that hanging out on the street is just what they do. They have homes (even if not private houses), but there’s a social event aspect involved as well.
“But if they’re not accurate reflections of what’s wrong, then the real problems won’t be fixed and the fixes will fail.”
But this could be said of the BLM in general and the way that discussions around police killings conflate the killing of Black men by police with the killing of Black people in general. Look deeper into the numbers and you will find that Black men are killed at a disproportionately high rate, making up around 24.5% of all killings, as compared to their percentage of the population. While on the other hand, Black women are killed by police at a disproportionately low rate, around 1%.* Add in the fact that such disparities between the sexes is seen across all racial groups and it would seem to indicate that something beyond simple racisms is at work.** But then it wouldn’t fit nicely into the current narrative and may possibly require people to change and not just demand that others change.
* Number derived for The guardians The Counted page for 2015,2016
** White women make up around 6.5% of White people killed by police and Asian and Hispanic women are each around 1%.
The numbers have never been sufficient to explain much of anything. It’s the “why” behind the numbers that matters.
If I’m comprehending things one of your ongoing contentions is we are squandering opportunity for needed change and reform by not addressing the true issues.
Exactly. On the one hand, we have a far greater ability to make sustainable and effective change now than we’ve had for decades, and we’re wasting it.
Aside from the alledged cause, is Gold’s article a worthwhile read about the civ pro v crim pro issue?
Not really, but it’s all fairly obvious and well known to crim defense lawyers.
Well, dang. None of my civil litigation clients are wealthy corporations. Why am I missing out???
You must be doing it wrong.