Editorial: Confronting the Unconsumed Past: On New Approaches to Criminal Justice

At an online conference I recently attended on the intersection between faith and political life, one of the speakers displayed the image, now notoriously known worldwide, of Minneapolis police officer Derek Chauvin kneeling on the neck of George Floyd. “What I see here,” she said, “is a horizontal lynching.” The phrase contained within it all the horror of this country’s history of racial violence—a history, we are continually told, that we have overcome through a series of legal victories and gradual social changes.

If the untruth of this was not clear already, Floyd’s murder on May 25 banished any doubt, and in a heart-sickening way. Wave after wave of protests sprung up in cities across the country, pushing beyond past calls for “reform” to challenge generations-old approaches to policing, surveillance, and the carceral state. The common thread of all of these protests is that communities, and especially communities of color, have found themselves stripped of health, safety, and housing resources in favor of an overreaching police presence.

This is not an accident, but an economic choice. “Part of the reason why elites opted for a more violent and aggressive regime of policing and incarceration several decades ago was that it was a cheaper way of managing the social ills caused by poverty than expanding the welfare state,” writes Ben Burgis in Jacobin. The decision not to invest in social structures that foster opportunity and equality would destabilize neighborhoods, resulting in increased police and criminalization—a never-ending “dual diagnosis” in which poverty leads to penalization, which propels further cycles of poverty.

The ill-applied “broken windows” theory of policing, where officers are encouraged to rack up citations for low-level misdemeanors, is one example of how this negative cycle has played out in practice. As Sarah Childress of Frontline reports, this approach “can strain criminal justice systems, burden impoverished people with fines for minor offenses, and fracture the relationship between police and minorities.” It was a misdemeanor—the suspected use of a counterfeit $20 bill—that led to the killing of George Floyd. There are also the implicit cultural, class-based, and racial biases police officers might bring to a given situation, causing them to criminalize behaviors by people of color that would be overlooked in predominantly white neighborhoods: one thinks of Eric Garner selling loose cigarettes, or Tamir Rice playing with his toy gun.

When police focus their attention on petty offenses at the expense of more serious crimes, communities of color find themselves paradoxically over-policed and under-protected: they are harassed for any number of minor infractions while homicides go unsolved. In a recent review of Alexandra Natapoff’s Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, David Cole provides some sobering statistics:

Every driver regularly violates some provision of the byzantine traffic laws, but African-American and Latinx drivers are twice as likely as whites to be stopped for a traffic infraction. . . . Nationally, African-Americans are 12.6 percent of the population. Yet according to FBI misdemeanor data, in 2015 they made up 45 percent of arrests for curfew violations and loitering, 31 percent of disorderly conduct arrests, and 56 percent of gambling arrests.

Add to these statistics the facts that New York City currently has more members of the NYPD (5,000) in its schools than all counselors and social workers combined, that the United States spends $180 billion on policing and incarceration each year, and that violent crime has fallen by 51 percent over the past 20 years without a proportional reduction in the number of officers, and the demand that has emerged from the Floyd protests to “defund the police” begins to make sense. To be clear, “defunding the police” does not imply the immediate dismantlement of police departments, but rather the reapportioning of funds earmarked for already-bloated police budgets to jobs programs, education, mental health services, and other areas that can actually make a difference in people’s lives and create conditions for a safer, more humane society.

Part of the argument for defunding is, if not exactly pro–law enforcement, then at least sympathetic to the fact that we demand too much of police. In our law-and-order paradigm, everything becomes an occasion to involve them: someone with a mental health condition having an episode on a city street, a homeless person trespassing unintentionally, a runaway pet. Instead of fixing our societal ills by addressing structural and systemic flaws, we criminalize those ills and task police with problems they have neither the training nor the resources to solve.

Even as police are overtaxed, they are curiously distanced from the communities they are ostensibly serving. When outfitted with military-grade weapons and tactical gear, they are seen less as public employees and more as members of an occupying force. The blurring of the line between civil servant and soldier leads to distrust on both sides and endangers peoples’ lives and liberties. We saw this recently when Defense Secretary Mark Esper spoke of American cities as the “battlespace”: though the demonstrations which provoked his remark were described by even the conservative Wall Street Journal as “overwhelmingly peaceful,” Esper managed to paint all those exercising their rights as enemy combatants. We saw this too in the treatment of 75-year-old protestor (and Catholic Worker associate) Martin Gugino, who sustained serious injuries after being shoved to the ground by police officers during a demonstration in Buffalo.

The moment has arrived to reimagine not just the nature of policing, but the whole complex of policies, procedures, and laws that prop up our broken criminal justice system. Bolstering mental health services and creating programs such as the one proposed by New York City Public Advocate Jumaane Williams in which teams of mental health professionals are sent to deescalate crisis situations is an excellent start. We also need to ban the transfer of military-grade equipment to police departments to ensure safer, less hostile environments that do not threaten our constitutional rights; rethink how we punish misdemeanors to prevent thousands of people from experiencing debilitating cycles of criminalization; and invest in schools that prioritize the formation, and not the surveillance, of students.

As we push for these and other necessary changes, our reimagining of the criminal justice system must also be attitudinal—how we see each other within the context of our civic spaces, the ways we arrive at mutual respect between communities, our very conception of what “order” looks like. Locking up more people than anywhere else in the world does not strike one as an “ordered” solution to a problem: it is a disordered one, based on disordered notions of the human person and the ways we educe his or her innate goodness.

The final reimagining—tragically confirmed yet again by the murder of George Floyd—is the need to confront what Fintan O’Toole has called the “unconsumed past” of our nation’s legacy of racism. It is easy to feel outrage at a system where the lives of people of color are so regularly devalued; much harder is recognizing our own complicity in that system, and rooting out those elements within ourselves that contribute to its perpetuation. If we are to proceed from a place of faith, we must begin by reinternalizing the words of Rabbi Abraham Joshua Heschel spoken nearly 60 years ago: “Wherever you see a trace of man, there is the presence of God. From the perspective of eternity our recognition of equality of all men seems as generous an act as the acknowledgment that stars and planets have a right to be.”

Michael Centore
Editor, Today’s American Catholic

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