Lessons from Ferguson

What lesson emerges from the grand jury’s decision not to indict Darren Wilson for shooting Michael Brown? The result has enraged tens of thousands of Americans, especially those who conceive the criminal law as a midwife to justice. I do not begrudge them their fury, but suggest that they misunderstand the criminal law, and expect it to assume a role it has not played in this country for at least two generations.

To put it plainly, the criminal law in the United States does not exist to deliver justice but to impose order. And for many years, people like Michael Brown have been seen as a threat to order—not because of who he is or what he may have done, but because of what he represents. Until that changes, the criminal law will view him with suspicion and bestow upon people like Darren Wilson a lawful power to treat him with deadly force.

Yet there is some indication that change may be upon us, if we have the will to seize it.

The Divisive Ideology of American Justice

We can imagine the criminal justice system from two very different perspectives. From one, the members of society are presumptively innocent and equal, free to go about their affairs unmolested by the State to the maximum extent possible. From the other, the citizenry is composed of “us” and “them,” and it is imperative that someone be empowered to protect the former from the latter.

If we lived in the first world, we would design a system that, as a rule, restrained the constable so as to liberate the people. We would be parsimonious with the State’s power to search, seize, prosecute, and punish. As importantly, we would condition the officer to view all people as genuinely equal, in fact and law, and admonish him to ignore incidental or irrelevant differences. Mistakes would inevitably happen, but we would tolerate them as the acceptable cost of our particular orientation.

But if we lived in the second world, we would design a system that unleashed the constable so as to empower him to protect some of us from the rest. We would be profligate with the State’s power to control perceived threats. As importantly, we would condition officers to view some people as suspicious in order to incapacitate wrongdoers before mayhem strikes, and encourage the police to devote extra resources to ensnare as many of “them” as possible. Mistakes would once again be inevitable, but we would tolerate them as the price we pay for order.

There was a time in this country when the Supreme Court leaned toward the first orientation. It only lasted a few years. Since at least the late 1960s, Democrats and Republicans in all three branches of the federal government and all fifty states have tacked sharply toward the opposite shore, steadily reshaping the law (and particularly the criminal law) to enlarge the government’s power to monitor, search, stop, arrest, prosecute, imprison, and execute those who fall outside the magic circle that separates us from them. It is this orientation that militarized the police, destroyed so many communities, disenfranchised so many citizens, and built so many prisons, filling them far beyond capacity with a disproportionate number of African American and Latino men (and women, to a lesser extent). The criminal law, in short, is part of the problem, not part of the solution.

Some people may resist this reading. They will point to those halcyon days of the Civil Rights movement, more imagined than real, when states invoked the criminal law to prosecute and punish southern killers in white hoods. But this is no answer. Leave aside the embarrassing infrequency of these prosecutions in American history. The more telling detail is that the criminal law typically played this role only after decades had passed, once time had worked its transformative magic.

Thus, with the fullness of time, people like Medgar Evers come to be seen not as dangerous agitators who threaten the natural order, but as heroic agents of overdue change. Invoking the criminal law to punish aging white supremacists like Bryon De La Beckwith can happen only once we have redefined the order that society hopes to preserve. It is past time we see that law is a meek follower, not a bold leader.

Others may protest my account on different grounds. They will insist that the criminal law is nobler in design, more majestic in purpose than I have described. Now we get to the nub of the matter. People want to believe in the law. For many in this country, the idea of the law is worshipped with the same unquestioned devotion that others reserve for religion. The “rule of law” is one of those magic and malleable symbols of national identity, impossible to pin down but nonetheless imagined as a source of unmitigated good. To lose faith in the law is somehow un-American. Worse, if we cannot cling to the security of the law, what is our fate? We may as well ask a man hurtled into the sea to let driftwood pass him by.

That’s how civic myths work. They not only convince us of their benevolence, they frighten us into believing we would be lost without them. Things should be this way; anything else would lead to chaos. And so we conflate this particular conception of the criminal law with the way things ought to be. It becomes an ideology, our unquestioned and reflexive bias. And one thing is certain: law cannot dislodge an embedded ideology. It never has, and never will.

Can Ideology Unite Rather Than Divide?

But ideologies can nonetheless change, and there is gathering evidence from the last decade or so that this one may be ripe for reconsideration. Since the start of the new century, nearly every state in the country has taken steps to improve its criminal justice system in a way that mitigates the excesses of the last two generations. Little by little, states are converting felonies to misdemeanors, and misdemeanors to non-criminal offenses. They’re repealing mandatory minimum sentences, rethinking habitual offender statutes, reducing or eliminating sentencing disparities between crack and powder cocaine, legalizing small amounts of marijuana, limiting the number of juveniles sent to adult court, and substituting treatment for prison. The prison populations in New York, California, and New Jersey, for instance, have declined by roughly 25 percent from their peaks of a few years back. For the first time in decades, unused prisons are being shuttered.

At the same time, some of the iconic symbols of the punitive era are gone. In 2009, New York dismantled most of the Rockefeller drug laws, the model for many of the retributive drug sentencing schemes adopted nationwide during the War on Drugs. In 2012, a California ballot initiative overturned that state’s infamous “three-strikes-you’re-out” law. Just a few weeks ago, at the midterm elections, California passed another ballot initiative that converted an entire class of non-violent drug and property offenses from felonies to misdemeanors. And in one of the most heartening developments, a number of states have taken steps to limit the use of solitary confinement, one of the most psychologically destructive penal practices ever devised.

Nor are these changes confined to blue states. Important legislative reforms have taken place across the country, including much ballyhooed legislation in Texas, South Carolina, Kentucky, Mississippi, and other southern states. In fact, the bipartisan character of these developments has given rise to an entirely new genre of journalism. In “man-bites-dog” style, these articles express amazement at the Right’s newfound interest in criminal justice reform, and marvel at the strange bedfellows this attachment has created. Just a few days ago, Tina Brown, formerly of Vanity Fair, authored a piece for The Daily Beast that opened by asking what these people and organizations have in common:

1. Koch Brothers
2. National Association of Criminal Defense Lawyers
3. Sen. Cory Booker (D-NJ)
4. Sen. Rand Paul (R-KY)
5. George Soros
6. Sen. Mike Lee (R-UT)
7. Sen. Dick Durbin (D-IL)
8. Newt Gingrich
9. American Civil Liberties Union
10. Grover Norquist

Answering her own question, she wrote, “They all agree that America’s practice of mass incarceration—unique in the world—is at worst a moral and practical failure or at best an outdated policy badly in need of adjustment.”

A number of factors help explain these changes, including much lower crime rates, the constraining effect of state budget crises, and a greater receptivity among policymakers to data-driven solutions. Yet most observers agree that these reforms, as important and as salutary as they are, cannot go far enough to produce meaningful reductions in the bloated American prison population. For one thing, the changes focus overwhelmingly on sentencing reform rather than on reform of police and prosecution practices. They concentrate on what happens to an offender once he enters the prison system, and not on the laws and enforcement strategies that brought him there in the first place.

Why have reforms been limited in this way? The answer is exceedingly important but has received almost no attention. Policymakers who profess an interest in criminal justice reform have thus far declined to re-examine the ideological foundation on which the current system was built. They have not questioned, in other words, the essential disposition to view the great majority of offenders as “them”—marauders who must be separated from “us” by any means necessary and for as long as possible. They show no awareness that the entire system was built on a foundation that unleashed the police and directed them to divide, rather than restrained the police and enjoined them to unite. Like any dominant ideology, this foundation operates unseen and unquestioned.

Now that reform is finally in the air, we must acknowledge that the American criminal justice system is flawed at its ideological core, a flaw that no amount of tinkering will fix. The shooting of Michael Brown, like the shooting of so many unarmed African-American men, was the predictable product of the same punitive turn in American life that produced the misguided War on Drugs, the dangerous militarization of local police, and the shame of mass incarceration. Until policymakers are willing to revisit the destructive and divisive ideology of “us” and “them,” and all that it implies, from police practice to sentencing to prison conditions, meaningful reform is impossible.

And the next grand jury will come to the same conclusion as this one.