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 no 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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