This is the introductory piece to our symposium on transforming America’s Criminal Legal System, click here to read all posts in the series.
Almost every criminal law textbook starts with a discussion of the foundational assumptions that undergird our criminal legal system. You learn that the difference between a crime and a civil wrong is the expressed hatred, fear, or contempt of the community. That moral condemnation justifies carceral punishment because it labels criminals as dangerous elements who threaten the integrity of our society and disrupt the lives of everyday law-abiding citizens. We exhibit caution in imposing grave criminal punishment by raising the standard of proof to beyond a reasonable doubt, providing procedural protections against unfair prosecution, and enshrining defendants’ rights in our constitution. However, in today’s criminal legal system these high-minded justifications and prophylactic measures merely provide a veneer of legitimacy for a broken system.
Guilty pleas have replaced trials, policing is concentrated in low income BIPOC communities, and prosecutorial discretion allows DAs to punish individuals in ways vastly disproportionate to the “criminal” conduct that occurred or the harm they caused. There is a double speak that exists within criminal law. The expressed values of the system do not represent the aims of the actors that operate it. Community condemnation maybe what we tell ourselves justifies criminalizing a person, but in reality how we define criminal behavior is rooted in racist pearl clutching as Kimberlé Crenshaw describes in her article Fear of a Black Uprising.
The Movement for Black Lives, community activists, and demonstrators across the country have forced a national conversation around policing and criminal justice reform. Policies once considered fringe are now being openly discussed by politicians and the media. Although substantive change has not always followed these efforts to shift the narrative, more people are realizing how deeply oppressive the current system is. Inspired by this push to demand change, we here at the LPE blog have started this symposium.
Although issues of police brutality and racist law enforcement practices have gotten much deserved attention in the media, the system is complicated. Many of the practices and decisions that perpetuate oppression are overlooked. In the spirit of what the Movement for Black Lives has demanded – true systemic transformation – we hope this symposium provides insight into how the criminal legal system targets vulnerable individuals and communities, as well as specific issues that need to be addressed before true justice is achieved. We hope that this is the start of a larger conversation that encourages readers to critically challenge those foundational principles that our criminal legal system was built on. If you’re interested in joining the conversation, pitch us!