In a recent Verdict column, I argued that Michael Brown’s death was the predictable product of an ideology that consistently pits a frightened “us” against an imagined “them.” The column received a fair amount of attention, as these things go, most of it thoughtful and constructive. But a few people reached out in frustration. When it comes to criminal justice, they asked, what choice do we have? If not this, what?
The search for alternatives has more recently taken on even greater urgency. Though I was not surprised by the result of the grand jury deliberations in Ferguson, I thought the system had at least enough humility to police its outer limits. But if an officer, surrounded by a fistful of armed colleagues, can kill an unarmed, non-violent African American man on video and in broad daylight on the streets of the largest city in the country by applying an unauthorized chokehold for the apparently unpardonable sin of selling unlicensed cigarettes, and not be indicted for anything, then I must be mistaken. (It obviously makes no difference that the officer insists it was not a chokehold, despite appearances to the contrary. That’s why we have trials.)
So in this column I hope to begin a discussion about alternatives. My approach is deliberately deductive, beginning from first principles that I hope enjoy broad support rather than particular policies that might be ripe for reform. I am also necessarily provisional, since this is a column and not a book. But conversations have to begin somewhere.
First, however, to spare readers from the unpleasant feeling that they have wandered into the middle of a movie, let me summarize my earlier column.
The Ideology of American Justice
Imagine two very different worlds. In the first, everyone is presumptively innocent and equal, free to go about their affairs unmolested by the State to the maximum extent possible. In the second, society consists of “us” and “them,” and the most pressing concern is to protect the former from the latter. Crime exists in both, but in a world of Venn Diagrams, the criminal justice system created by the first world overlaps very little with the system created by the second.
In the first world, we restrain the constable to liberate the people. We are parsimonious with the State’s power to search, seize, prosecute, and punish, and condition the police to view members of society as genuinely equal, in fact as well as law, and admonish them to ignore irrelevant differences.
To be sure, mistakes of a particular sort are inevitable in this world—the guilty sometimes go unpunished. But the people tolerate these errors as the price of personal liberty and equality.
In the second world, however, we unleash the constable and direct him to protect some from others. We are profligate with the State’s power to control perceived threats, and condition officers to view some people as suspicious in order to incapacitate wrongdoers before mayhem strikes.
At the same time, laws in the second world proliferate as an instrument of social control, since each new law gives the State an additional weapon in the always-escalating campaign to protect us. The people encourage the police to make liberal and frequent use of these laws, and to devote extra resources to ensnare as many of “them” as possible.
In the second world, mistakes of a different sort are inevitable—innocent people sometimes suffer terribly, and some who are guilty often suffer far more than is justified by a neutral moral code. But the people tolerate these errors as the price of protection.
For a few years, the Supreme Court guided the United States toward the first world. But since the late 1960s, all three branches of the federal government and all fifty states have tacked sharply toward the opposite shore. Politicians and judges have steadily enlarged 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 philosophy that militarized the police, destroyed so many communities, disenfranchised so many citizens, strapped us with over-criminalization, and built so many prisons, filling them far beyond capacity with a disproportionate number of black and brown men and women. And of most immediate relevance, it is this mindset that conditioned a cluster of New York’s finest to view the non-violent Eric Garner as a mortal threat. Lest there be any doubt, we live in the second world.
A New Vision of Justice: Life in the First World
Now consider a possible alternative. In the first world, we detect the persistent influence of four core beliefs. To begin with, people are perennially wary of coercive authority, for fear that it will burst through its restraints. Likewise, they are committed to as much personal liberty as possible, which teaches them to be indifferent to individual behavior that has no effect on others. They are also scrupulously solicitous for the welfare of rich and poor communities alike, as well as all who live within them. And finally, while they are willing to depart from these principles if necessary, they are apt to do so sparingly, and only after open debate.
A genuine and thoroughgoing attachment to these beliefs has yielded a set of questions against which the people in the first world measure nearly any criminal justice policy. Consider, for instance, the debate over police body cameras. The evidence is quite strong that cameras like these lead to a dramatic reduction in police violence. Yet some police unions complain they violate the officer’s privacy. This choice is easy in the first world: the interest in community welfare readily combines with a wariness of coercive authority to trump the officer’s asserted interest in privacy. In the first world, officers wear body cameras.
The same analysis allows people in the first world to resolve various questions about police enforcement strategies. For instance, in the first world, people are exceedingly skeptical about policy choices justified solely by the promise of more arrests. For that reason, they eschew the sort of incentives created during the War on Drugs, when the federal government began to measure the success of local police departments by the number of drug arrests they made. This led officers to focus on African American users, who more often consumed drugs on the streets and in open-air markets, rather than white users, who use drugs in greater numbers but who tend to remain behind closed doors. In the first world, this policy betrays the commitment to restrain the constable, and to treat rich and poor communities alike. (Notably, the Obama Administration just announced plans to reform the War on Drug grant programs and remove this very incentive.)
At the same time, people in the first world are more apt to resist the siren of moral panic, those episodic convulsions when society becomes convinced that yet another group threatens its very existence. Moralists have always announced these panics with the same tired wail: “Unless we rise up in opposition to X,” they warn, “society will perish.” X has been the Catholic, the Jew, the Italian, the Communist, the Mexican, the Muslim, but most of all it has been the African American.
But X has also been the drug addict, the juvenile “super-predator,” the gang-banger, the crack whore, and the welfare queen. No enforcement strategy is too aggressive, no prosecution tactic too extreme, no sentence too long, no condition of confinement too severe if it spares us from these and equivalent marauders. In the first world, the people are suspicious of these proclamations. They hear in them an illicit appeal to the unrestrained exercise of coercive authority for the illegitimate purpose of dividing “us” from “them.”
Of course, these examples are merely illustrative. We could no doubt think of many other laws and practices employed in our world that violate one or more of the organizing principles of life in the first world. Yet aggregating examples is not nearly as important as grasping what it means to adopt an entirely different ideology of justice.
Life in the first world would supply a moral philosophy—a set of predispositions, biases, and expectations—that would eventually harden into fixed policies. Only at first would we find it necessary to follow the flow chart as we ponder whether to adopt or reject new criminal justice policies: does the proposed policy adequately restrain coercive authority, give maximum berth to personal liberty, and treat rich and poor communities alike?
In time, these questions would recede from conscious articulation and be replaced by confident declarations that certain criminal justice practices are simply un-American. Eventually, we would no more accept the idea that the police might roll through town in a tank and arm themselves with the weapons of war than we would accept trial by voodoo, and would find further explication completely unnecessary.
And this brings us to the most important transformation of all. In time, the unthinking determination to multiply laws, expand coercive power, and devise ever-more repressive mechanisms of control, would wither away. We would no longer reach reflexively for the criminal law to help us corral “them” into steel pens, for at last we would come to see, there is no them. There is only us.
Excellent! The them is getting much closer to the us..the gap will close. History has shown us again and again. I see us creating another lost generation of men to a war we wage on ourselves. When we have resigned zoos because the damage it inflicts is too perverse. Why then would we house thousands of men and women and expect any less?
Professor Margulies, thank you for starting such a powerfully relevant conversation. As I was reading, I couldn’t help but contemplate the philosopher Jacques Derrida’s philosophical inquiry of binary opposition. I think it seamlessly characterizes the philosophy of the “moral panic” that our current systems of constitutional jurisprudence haven’t been able to resist.