Courts

The Worst Response To Our Grossly Flawed And Biased Application Of The Law Is Fatalism

The need to bring attention to the grotesque flaws within our legal systems cannot be underestimated, but the greatest danger we face is the impression that nothing can be done.

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One of the most significant problems in our country is a grossly flawed and biased application of the rule of law. Making matters indisputably worse? We have a federal administration doing everything it can to reinstitute abusive and discriminatory practices, while at the same time severely undermining the only legislation Congress has passed in decades regarding criminal justice reform. Moreover, in just the last week, our country was painfully reminded that the problems with the application of the law are not a universal, but largely selective to certain demographics.

By now I am sure you have heard Ahmaud Arbery’s name and seen the video of what happened to him. In the small chance you haven’t or have not gone more in depth than the video, David French has provided a thorough and detailed analysis that can be found here. Other than the obvious and ugly similarity between what happened to Arbery and the lynchings of the past, what stands out in the Arbery case is the refusal of Georgia prosecutors to immediately arrest the killers. To be clear, the officers on the scene are claiming they were going to make the arrests immediately, given the abundance of clear and obvious probable cause, but were overruled by the prosecutor’s office.

As French points out, in examining the decision not to initially prosecute in the Arbery case it is worth noting that one of the killers “is a former police detective and investigator” for the district attorney’s office. And while multiple prosecutors did recuse themselves from the case due to this connection, such recusals did not stop one prosecutor from offering a formal opinion that the killers committed no crime. Again, this was in despite of the conclusions reached by the officers who responded to the scene.

Lest anyone think this is a small problem or an isolated issue confined to Arbery’s case or just one Georgia county, consider this: although the majority of illegal drug users and dealers in this country are white, since the war on drugs began (and well into the 21st century) roughly three-fourths of all people imprisoned for drug offenses belong to a minority group. Moreover, this imprisonment disparity continues with our most recent law enforcement applications, such as social distancing laws initiated during our current pandemic.

Given all of the evidence for flaws and biases, a common impetus, as Steven Pinker discusses, might be to gravitate toward a fatalistic view and the belief that “the only hope is to tear down all our institutions,” including the criminal justice system. The danger of subscribing to this fatalism however, is that “we lose sight of what’s working, of what we’ve gained” and that “we risk slipping into extremism.” Again, this does not mean we ignore the flaws and biases that lead to tragedy. The only way to correct flaws and biases is to first acknowledge they exist. In fact, the only way the killers in the Arbery case were eventually charged with murder is due to social outrage.

The point I am trying to make is there are reasons to be optimistic due in large measure to the successes of our country’s institutions (including the “justice” system) and that turning to radicalization and destroying these institutions is a direct threat to that progress. I’ll let Coleman Hughes explain:

From 2001 to 2017, the incarceration rate for black men declined by 34 percent. Even this statistic, however, understates progress by lumping black Americans of all ages together. When you look at age-specific incarceration outcomes, you find two opposing trends: Older black Americans are doing slightly worse than previous generations, but younger black Americans are doing better—so much better that they more than offset, in statistical terms, the backslide of their elders. To put the speed and size of the trend in perspective, between my first day of Kindergarten in 2001 and my first legal drink in 2017, the incarceration rate for black men aged 25–29, 20–24, and 18–19 declined, respectively, by 56 percent, 60 percent, and 72 percent. For young black women, the story is similar: a 59 percent drop for those aged 25–29, a 43 percent drop for those aged 20–24, and a 69 percent drop for those aged 18–19.

As a result of the divergent generational trendlines, the black prison population is not only shrinking; it’s aging too. In 2017, nearly three in ten black male prisoners were 45 years of age or older, up from one in ten in 2001. That may not seem like good news, but it is. The incarceration trendline for young blacks in the recent past predicts the trendline for all blacks in the near future. So the fact that the post-2001 incarceration decline for blacks in general was entirely caused by the plunging incarceration rate for young blacks in particular suggests that, as generational turnover occurs, the black prison population will not only continue to shrink, but will shrink at an accelerating rate. To paraphrase the economist Rick Nevin, our prison system may be overflowing today, but the “pipeline” to prison is already starting to run dry.

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The even better news is that the institutional success by those who have traditionally been subjugated the most in this country goes beyond incarceration, as Hughes goes on to explain:

Not only are black Americans healthier and longer-lived than they were two decades ago, they’re also more educated. Between the 1999–2000 and 2016–2017 school years, the number of black students who earned bachelor’s degrees increased by 82 percent, from 108,018 to 196,300. Over the same period, the number of associate’s and master’s degrees awarded to black students more than doubled, rising from 60,208 to 129,874, and 36,606 to 89,577, respectively (population growth accounts for some, but not all or even most, of this growth). 2018 census data showed that 37 percent of black Americans aged 25–34 had some kind of college degree. If black America were its own country, that would place it in between Germany (31 percent) and Spain (43 percent) in terms of educational attainment. What’s more, the economist Raj Chetty has found that black women, though less likely to attend college than white women, are now more likely to attend college than white men from similar socioeconomic backgrounds.

Along with more education has come more upward mobility. The Federal Reserve recently reported that over 60 percent of blacks at every level of educational attainment say they’re doing better financially than their parents—a higher percentage than either whites or Hispanics. And although black men still lag behind white men in terms of upward mobility, Chetty has found that black women now go on to earn slightly higher incomes than white women from similar socioeconomic backgrounds.

What’s needed is not a radicalization of this country, but a deeper commitment to furthering the profound successes that are happening with little fanfare all around us. Yes, we also need to highlight the flaws and abuses, and that need cannot be underestimated. But tearing it all down makes as much sense as doing nothing to correct the flaws and biases where they exist.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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