Justice, Justice You Shall Pursue – Deuteronomy 16:18
In the wake of the sentencing of Derek Chauvin, a lot of people in a lot of places are expressing that they wish he’d gotten the maximum. That if he was black or brown or Muslim he wouldn’t have gotten less than the maximum. While I understand those sentiments, especially when framed within the real, true, and factually accurate context that Americans who are non-white and/or non-law enforcement get treated far more harshly by every part of criminal justice system.
However, the way to fix the system is not to push for someone like Derek Chauvin to be treated as badly as those who are non-white and/or non-law enforcement, but, rather, to push for everyone else to be treated better. America over polices itself. It over prosecutes itself. It over incarcerates itself. At every point of contact the system is far, far, far more punitive than it needs to be. Some of that has to do with the fact that there are really two histories of America’s policing and criminal justice systems. Some of that is because there’s profit to be wrung out of both of them. And both of them are inextricably linked.
I haven’t taught criminal justice in a long time, but at least through 2007 the standard texts for criminal justice, as well as for policing, start the history of what we would call formalized policing in the US in the 1840s in New York City. That department was quickly followed by ones in New Orleans, Cincinnati, Boston, Philadelphia, Chicago, and Milwaukee. The same texts date the first police union to the early 20th century as a result of the police strike in Boston in 1919. In between these they take a detour to London to describe Sir Robert Peel’s policing innovations.
All of this is true. It is factually accurate. It also misses the other, older history of policing in the US. The first actual formalized policing in the US was the fugitive slave patrols and the plantation police. The first slave patrol was formed in 1704 in Charleston, South Carolina. The first benevolent association for law enforcement was actually created in the mid 19th century in Charleston, South Carolina. This police union predates the one created in Boston by almost a hundred years. And the language used to describe these patrolmen’s and policemen’s duties, such as patrolling a beat, would be familiar to us today.
The purpose of all this American policing that we don’t normally call policing was about profit. Ensuring that the human property that was creating the profits for their owners didn’t do anything like run away to seek their freedom or revolt to do the same.
There are a lot of problems in how America undertakes policing, as well as the other parts of its criminal justice system. Police are all too often used to respond to things that really shouldn’t be policed, but because we’ve been defunding public mental health resources since the Reagan administration, who you gonna call? The cops. Because there isn’t anyone else to call. Similarly, state legislators and municipal officials create ever more criminal and civil infractions that the police are then expected to enforce and the prosecutors to prosecute. They do this because someone has identified a problem. And when every problem looks like a nail, you put it under the hammer. That’s not the fault of any specific police department or any specific police officer. It is a systemic problem.
This systemic problem is allowed to exist because it also generates revenue. If you can’t have any revenue from taxes, because taxes are un-American or Satanic or socialism or insert your boogeyman of choice here, then issuing lots of citations is a good way to make up some of the difference. The problem, of course, is if you make something illegal, eventually someone is going to try to enforce it. And, eventually, an enforcement action is going to go badly.
Don’t even get me started on how even the ever shrinking public prison system was both always rooted in profit and has been reimagined over and over and over again to ensure someone can make money off of it. The private, for profit prison industry should be abolished outright.
We over resource police and prosecutors and prisons and under resource public defenders, mental health professionals, social workers, teachers, schools, and community programs such as sports leagues and recreation centers.
We know that our criminal justice system does not create a deterrent, which is supposed to be one of the most significant points of the whole thing. The data on that has been clear for decades. Most police departments never even get close to a 50% clearance rates. The majority of them are lucky if they have a clearance rate above 30% for their serious crimes. Yet year after year, the system continues to just grind along in the names of crime prevention, law and order, deterrence, and public safety.
And all of it is a one way ratchet.
The solution to black and brown and some religious minority Americans being over policed, over prosecuted, over sentenced, over incarcerated, and over punished is not to do the same thing to the Derek Chauvins of America, no matter how satisfying that might feel. And no matter how that feels like it might be equal justice. The solution is to actually replace the ratchet and go in the other direction. We’ve spent decades, more accurately we’ve spent well over a century, trying it the way things are now and I don’t think anyone who is honest and informed actually believes it is working. Sentencing Derek Chauvin to the maximum thirty years instead of twenty-two and a half isn’t going to fix any of that.
Every aspect of our criminal justice and rule of law systems are in need of serious reform. In some cases they need more than reform, they need to be reimagined and reconceptualized and then reconstituted. The purpose of establishing systems and processes to seek justice should be to seek justice, not punishment and not profit. And justice should be tempered by mercy.
In creating the world God combined the two attributes of justice and mercy: “Thus said the Holy One, blessed be His name! ‘If I create the world with the attribute of mercy, sin will be plentiful; and if I create it with the attribute of justice, how can the world exist? Therefore I will create it with both attributes, mercy and justice, and thus may it endure.'”. [Gen. R. 12:15]