The Necessity of Equal Justice
The Modern Survival Guide #114
This is the Modern Survival Guide, a guidebook I’m writing for things I think people need to know about living in the modern world. The views expressed here are mine, and mine alone. Today we need to talk about an issue that keeps coming up in America, and which directly impacts the survival of many of our fellow citizens: our justice system is pretty fucked up. Specifically, we have a problem where the US criminal justice system disproportionately punishes non-white citizens. Our justice system is not equitable, and that is hurting us. All of us.
So let’s start by getting the elephants in the room all out in the open, then we can talk about why this is a big damn problem in the US and what we can do about it.
YES, black people in the US (and minorities in general but black people catch the worst of it) are disproportionately punished under the institutions of our criminal justice system compared to white people. This is not seriously in debate; the US government openly admits that this is a thing.¹
YES, racism exists, and is a major motivating force for this phenomenon. The application of disproportonate punishment and uneven justice did not emerge spontaneously, it is intentional and historical.
YES, this directly contributes to police violence against minorities and violence against the police. These things are joined at the hip.
NO, you are not absolved from guilt or action just because you do not personally hold racist beliefs. This is an institutional problem, and as I’ve mentioned at some length in prior articles, these kinds of things require major cultural shifts and extensive action by individuals to correct. Moreover, you don’t get to call yourself a citizen of a representative democracy and pretend that government actions aren’t your problem. Otherwise, you’re a subject, not a citizen.
And YES, this is a problem for everybody. A democracy that doesn’t treat its citizens equally creates issues for everyone in that democracy. We already know why racism is bad. This is just an extension of that logic.
This is something that we have to deal with, finally, collectively, as a nation, and to do that we need to be reminded of a few core concepts that should be baked into our system of justice, our understanding of punishment, and our basic concepts of fairness in society. This is a survival issue. A major one, for a large percentage of our population. And it does affect you, no matter who you are. Let’s talk about why.
The Core Problems of Disproportionate Punishment
To properly understand the nastiness of this issue, we have to look at it in terms of not just individual tragedies, but also in terms of social consequences. There are three big problems that emerge from systems of disproportionate punishment.² These are as follows.
Increased likelihood of unfair outcomes: Obviously, if you have a system that inflicts more punishment on one group than another, you’re going to have more instances where there are stories of personal tragedies, unfair sentencing, and innocent people being put in jail.
That’s a problem on two levels. One the one hand, it’s increasing the cost of participating in society by the targeted group. That makes it less likely that people in that group will take chances, make investments, gain an education, whatever. If you’re going to get bashed no matter what you do, why do anything? And on the other hand, it increases the society’s cost of operation (and opportunity costs) because it means that the society is maintaining a larger investment in bashing that group. Cops cost money, and prisons cost LOTS of money.³
Increased likelihood of violence due to poor trust: Let’s all briefly recall that the one of the major points of a democratic system is to foster an increased level of trust. Trust in citizens, trust in government, trust in the system.
The idea of “freedom” is fetishized in the US, and we sometimes forget that freedom really does not matter if you don’t have trust in what other people are going to do with that freedom. The point of involving people in the governmental process is to foster a system where you can have liberty within a specific and proscribed set of guidelines, which are broadly agreed to in society. That’s what “freedom” means.
If you can’t trust the system because you know it is treating you unfairly, then you can’t trust the guidelines and you can’t trust the authorities — you might even specifically target violence at authority figures out of a sense of retribution. Without that trust, the whole idea of a peaceful society rapidly breaks down, and you’re back in the war of all against all.
Increased social disruption due to violence: Violence begets violence. The thirst for revenge is strong in humanity, because we all crave a “fair” universe where people get what is coming to them. When people hurt each other, without intervention by a justice system you get feuds and murders. When the system itself is the problem, you get (in order of increasing severity) protests, riots, and eventually violence against authorities on a mass scale.
Protests and riots should be viewed as canaries in the coal mine, and they have immediate consequences for both public safety and local economic activity — especially when the police are the ones being protested. We’ve already seen far, far too many displays of violence against peaceful protesters by cops who are supposed to be keeping order in support of their right to protest.
People don’t give up their time and safety to protest on a whim, and riots happen when anger and unrest reach a boiling point. When that goes on long enough, when concerns are not addressed, you get insurgencies. And when insurgencies go on long enough, you get revolutions.
Revolutions are almost universally bad — they have a tendency to produce worse social conditions than existed before the revolution, as a general rule, and even when they succeed they are usually followed by counter-revolutions or spin-off insurrections as the idealistic leaders die on the barricades and authoritarians take over. It is infinitely preferable for a society to reform rather than revolt… but reform requires some degree of trust that reform is even possible; otherwise revolution is the only option for change.⁴
In short, unfair judicial punishments lead to a breakdown of social trust. That breakdown of trust leads to civil unrest. Civil unrest leads to violence (not to even touch on economic disruptions), unless changes are made. That’s the point of civil unrest, you see: people do not protest, much less riot, unless given no other option to make a big change, and most big changes require blood. The classic quote from MLK is that “a riot is the voice of the unheard.”
Is this a slippery slope argument? To some degree, yes it is. But the slope is really quite slick, and there are ample examples that almost anyone can readily bring to mind to back this argument up. Which brings up our next point…
Inequitable Justice is Bad for Democracy
One of the big selling points of democracy (any democracy, all democracies) is that when you don’t like the way things are, there is a legal way to change them. This is called “voting,” and the main point of voting is that we don’t have to revolt. Voting is a way to make society change without violence. But it relies on trust in the system, it relies on responsiveness from the system, and with just a little bit of corruption it can be twisted so that votes don’t matter.
Gerrymandering, anyone? Closed polling places much? Can you say “poll tax?”
Now, if you have one group punished more than another they rapidly lose trust in the system overall, and that can lead to reduced voter turnout, even in cases where voter suppression is not part of the disproportionate punishment. And let’s be honest, voter suppression is usually part of the package. That decreases the odds that public officials will change things, because it removes their incentive to do so.
The is a major problem when it comes to inequitable justice, because if you have one group that is punished more than another and has less access to the levers of power, that means that the other group benefits. This is the core concept of “white privilege,” for the folks in the back. If one group is receiving more punishment for the same crimes, or punishment for no crime at all, particularly in a system that heavily penalizes ex-convicts, that means another group has a competitive advantage in terms of resources and opportunity cost. And oh my, people do not like giving up advantages. Dear me, no.
The problem is that this becomes a downward spiral unless action is taken to correct it. By keeping you down, even just a little bit, my odds of success go up: I don’t have to compete with you as much, I don’t have to give you as many resources, I don’t have to listen to your opinion. I have power because you don’t. That’s all it takes. Over time, that produces a system that stops being democratic, because I am incentivized to gain more power (we all are), and if I know that part of my power comes from keeping you down, I am always incentivized to keep you down whether I am racist or not. This is chaos theory applied to countries, and it really does work this way.⁵
The result of this kind of oppression is inevitably violence, in case that wasn’t obvious. Violence against the oppressed and, eventually, violence against the oppressor. This is the kind of situation which, if left uncorrected, ends legitimate democracies and introduces tyranny or oligarchy of one sort or another. This has happened at certain points of US history, and it can easily happen again.⁶
The Correction: Equitable Justice
This stuff isn’t easy. It’s a vast web of interconnected policies and structures in our society. There are no silver bullets, there is no “end of history,” there is no point where we get to rest on our laurels and say that we live in a perfectly equitable society with a perfectly proportional justice system. That’s not how people are. People are messy, and there’s always some evil bastard out there trying to tear down society for their own profit. Whatever we do to try to fix this will take years and years of focused work.
Doom and gloom aside, there are specific actions that we can take to raise the odds of equitable justice in America, raising the odds of both the survival of our democracy and our own survival within it. One of these is to enforce the concept of equitable justice; it’s not the only thing we should do, not by far, but it’s a problem we need to resolve. What that means is not terribly complicated in principle: we put in place policies, procedures, laws, and cultural expectations that require the equal application of the law, and ensure that the punishment fits the crime, for all citizens accused of a crime.⁷
Oh sweet baby Jesus, that’s complicated in reality though.
The list of things we need to do to implement this in America is as long as it is necessary:
- Vote out politicians who refuse to endorse principles of fairness or who have a poor track record of supporting equitable justice when it comes to their voting history
- Pass laws to better regulate our criminal justice system and require equal standards of punishment
- Remove mandatory prison time requirements, e.g. “3 strike” laws, and maybe even try our hand at rehabilitation as a primary goal for once
- Remove judges who do not equitably implement the law in sentencing
- Pass laws to better regulate state-sanctioned use of force by the police
- Implement policies to better define when it is appropriate to use different levels of force
- Enforce those laws and policies by routinely prosecuting police who use unnecessary force
- Improve monitoring of police actions by independent auditors
- Break police unions’ grip on the application of discipline, which will probably mean breaking a lot of police unions (and I’m pretty pro-union guy in general, so you know this is a big deal for me)
- Implement policies to remove bad cops, and ensure they cannot be re-hired
- Increase police pay, but decrease police spending on military-grade equipment⁸
- Fund community services and mental health so that we don’t have to ask the police to do things unrelated to law enforcement
- Require more and better training in conflict de-escalation and use of nonlethal force by officers
- Require more and better training that emphasizes using lethal force as an absolute last resort
- Require more and better training that emphasizes that police are public servants
- Increase use of community policing models
- Require increased police accountability through evidence logging and body-cam footage
- Remove stop-and-frisk policies
- Remove unwarranted asset seizure authority
- Reform police union contracts
- Remove qualified immunity
- Improve data collection and public access to data on police actions
- End the “war on drugs”
And lots more things that I haven’t thought of, to be sure. Here’s a list by the ACLU. Here’s a list from Campaign Zero. Here’s the Atlantic’s take on things. Here are the demands from Black Lives Matter. There are lots of groups doing a lot of work on this subject, and it’s worth your while to research them.
What Can We Do?
So all this comes back to us as individuals. Remember when I said we can’t look away? This is it. This is us. What can we do? How can we help? How can we act to preserve our democracy and the rights of our fellow citizens?
There are four big things that anyone can do:
- Give money to reformers. Money is the magic anyone can do. It enables action, it hires people, it buys resources, it ensures political notice, it increases volume. Find a group that you like, and give them money on a regular basis. The NAACP, BLM, SPLC, and ACLU are all good starting points. Remember, one time donations are nice, recurring donations are better.
- Protest. The national dialogue hinges on protests. They make the news and cause a ruckus. They influence political capital and set the tone of the day. You have a right to peaceably assemble; use it. If your right to peaceably assemble is violated, use that too. The more attention, the better.
- VOTE. Democracy isn’t dead yet. Vote for politicians who will make the changes we need — especially at the local level. Congressional action is necessary, but a lot of the reform we need rests at the city council level.
- Speak out. Let the world know what you think. Our culture is a big piece of this issue, and “culture” is what we expect to happen today and tomorrow combined with what we think everyone believes. We influence the culture by influencing the national dialogue, and that means speaking up. Make it known that you support a fair justice system. Write your city or town council members. Write your congressman. Put an op-ed in the local paper. Post on social media. We have the loudest microphones ever permitted to the common citizenry in human history, so let your voice be heard.
Then, once we’ve done all that… sustain it. Like most major survival issues, this isn’t easy, it isn’t simple, and it’s not going away in a day or two. This isn’t something that we get to ignore. An inequitable system of justice has consequences that are severe, painful, and here.
And we should be better than that. That’s the American ideal — being better — and if we want to survive in America-as-it-is and promote America-as-it-should-be, we must all support a fair system of justice.
Black Lives Matter.
¹There is a large and vocal minority in this country that would really, really like to dispute this assessment, and they are wrong. They include people of all races and some who are extremely well educated and who honestly should know better. If you believe them, you too are wrong. Now if that offends you, I’m sorry, but take a breath. Done? Ok, good. Because you don’t have to be offended and you don’t have to be wrong. You are allowed to change your mind, and most people will think immeasurably better of you for doing so in this instance. The evidence is there, the testimony is there, the documents are there, the videos are there… it’s not a weakness of character to admit that they do in fact constitute reality.
²No, there are not just three problems. But I think these are the big ones. Feel free to disagree in the comments.
³And remember that someone is getting that money. There is a serious conflict of interest problem in the US when it comes to the private prison industry being able to lobby for, and in some cases directly write, laws that require longer prison sentences.
⁴Listen carefully, because this is important: The American Revolution was an exception, not the norm. It resulted in a society that was almost exactly the same as the society it replaced, mostly because it was led by a bunch of rich landowners who just wanted a vote in Parliament. Most revolutions are not like that. Most revolutions are more along the lines of the French Revolution or the various communist revolutions of the 20th century. Most revolutions produce dictators. Something to bear in mind.
⁵Chaos theory states that small changes introduced into a system early on can have massive long-term effects.
⁶It’s not something you get taught in grade school, but by most modern definitions of “Democracy,” the US wasn’t a democratic nation for most of our history. Now, before the direct democracy crowd gets started: I’m not talking about people voting directly on issues as opposed to a system of representation. I’m talking about measures of democracy implemented by groups like Freedom House to gauge legitimacy in government. And yes, yes, I know… it’s not fair to measure the past by the present. But don’t believe for a moment that the present is indicative of how things were in the past, either.
⁷Let’s take an example: make it illegal and punishable by immediate firing and criminal prosecution to shoot someone for running away from the police in any case except where the police are intervening in a violent crime. That seems easy enough to agree on, right? Just running from the cops should not be a death-penalty offense. The only case where shooting a fleeing suspect should be justified is when they are a clear and present danger to others if left unchecked. It’ll be a pain to review on a case-by-case basis, but that’s the point. We should be creating disincentives for police to simply blow someone away. If the paperwork burden is high enough, cops will think twice before shooting someone just because they don’t want to run after them.
⁸Cops have access to armored personnel carriers and military-style riot gear because they bought toys using anti-terrorism money after 9/11, instead of investing in investigative services to actually root out terrorism. Strange but true, domestic terrorists do not require an MRAP to apprehend. And if you’ve got a hammer, everything starts to look like a nail…
