Jan 9, 2015

Racism and the Law: Spirit of the Law for Most and Equality for None

The overwhelming belief that racism can be cured through regulations and statutory cures is a liberal/progressive ideal, while the opposing worldview that regulations and overbearing laws are contrary to liberty and are intrinsically tyrannical. It could very well be that both perspectives are wrong. Racism may not have a cure available in the law, no matter how ingenious and wise the law is crafted to be, while the freedom to being racist carries with it the tyranny that that perspective actually despises.

The following is a quote from a book review that proposes the liberal white agenda of civil rights being partially responsible with the current Prison-Industrial-Complex:
This is the fundamental thesis of Murakawa’s book: legal civil rights and the American carceral state are built on the same conceptions of race, the state and their relationship. As liberals believe that racism is first and foremost a question of individual bias, they imagine racism can be overcome by removing the discretion of (potentially racist) individuals within government through a set of well-crafted laws and rules. If obviously discriminatory laws can be struck down, and judges, statesmen or administrators aren’t allowed to give reign to their racism, then the system should achieve racially just outcomes. But even putting aside the fact that a removal of individual discretion is impossible, such a conception of “fairness” applies just as easily to producing sentencing minimums as school desegregation.How White Liberals Used Civil Rights Create More Prisons thenation.com

This is an article from the New Republic that profiles the current NYPD work slow down in response to #BlackLivesMatter protests and the killing of two police officers in Brooklyn back on December 20th:

Many of the offenses police have tacitly declared legal are considered quality-of-life (QOL) infractions. Those follow the broken window strategy, a policing philosophy that has been widely discredited since its heyday in Rudy Giuliani's mayoralty. QOL meets small transgressions with arrests and finesa way, it's thought, to nip more substantial crimes in the bud. Perhaps because QOL policing grants cops near-unlimited discretion in determining whom to sanction, its penalties fall disproportionately on people of color. Between 2001 and 2013, the New York Daily News found, more than 80 percent of the 7.3 million people penalized for these infractions were black or Latino. The vast majority of African Americans and Latinos in all walks of life feel like they're treated unfairly by law enforcement, and consider police discrimination the most endemic form of societal mistreatment. It's unfairbrutalracist, and financially burdensome, and it often follows such small transgressions as jaywalking, skipping $2.50 subway fares or merely irritating police.  NYPD Work Slowdown Being Celebrated New Yorkers of Color newrepublic.com

Comparing the two different implementations of criminal justice, one that removes discretion under guises of making it impossible to have one set of laws for people of color and another for whites and the other that provides absolute discretion to the beat cop, provides an anecdotal example how neither is a step closer to alleviating racism from the criminal justice system. No matter how impartial the law may be the individuals that are the cogs within the criminal justice system all get to do their bit to tip the scale towards their own bias. On the other hand, letting the wisdom of the individual rule supreme will lead to confirmation bias where any citizen that for whatever reason is not relate-able to those cogs of the criminal justice system get harsher treatments. This isn't merely a racial prejudice being played out in both scenarios, but a powerless versus powerful prejudice as the NYPD officers are now more likely than not non-white. Though it may very well be a demonstration of how flexible the classification of 'white' is in contemporary America as the term begins to become inclusive to 2nd generation (and further) South Americans, Caribbean-Americans, East and South Asians. We may even forgo the nomenclature of 'white' and replace it with 'middle class' or some other term that won't be so exclusive to race; this is a problem that the term 'white' didn't have when it excluded Irish, Southern Europeans, and Slavs in the first half of the last century and second half of the 19th century.

But I digress, to return to concept of racial prejudice or racial indifference being codified in the law or race being overtly absent from the law entirely, it is quite impossible to eliminate what is in the hearts of individuals through legislation. Either setting the terms of racial tolerance in stone or intentionally ignoring race and hoping that it would resolve it self, would do little to progressing what the society as a whole knows to be their Truth. It may be that their Truth is that they do not interact more than tacitly on a daily basis with someone of another culture, race, religion, etc, so they can only base their reality of what the people that they never interact with on a substantial level, on media representations or the most memorable (and likely worst) interaction with a member of that demographic. Since the most innocuous actions are neither memorable nor dramatic, no matter what the law says, we as human beings will revert to our tribalistic caveman minds and feel uncomfortable to whatever we are not regularly exposed to. So as much as those that wish it would all work itself out, the criminal justice system actually reimposes much of the racial prejudices on the society as a whole and all the cogs of the criminal justice system participating in the system. Simply saying "If it was purely a market based society, we wouldn't have segregation because there wouldn't be a government to enforce Jim Crow Laws" are deluding themselves, just as much as those that say "If we struck just the right balance in law and police regulations, we would eliminate racism altogether from society." It will take a cultural shift and a transformation of the human heart throughout society that will weaken racism to the point of insignificance, this has already begun but not in earnest. Those of white or middle-class privilege still play the 'good block/bad block' within metropolises, or denoting shared entitlement towards individuals of color with a toothless decree of "well, you are basically white anyway" blissfully unaware that their black-friend will not get to skate by police harassment because they are "one of the good ones," but that is by definition the white privilege. To be privileged to lead a life that is blissfully unaware of the dangers that exist in parallel to the swaths of society not already in receipt of an universal pass to be assumed innocent; presumed guilty with legal statutory so thick that it could choke a horse means that we are all acting outside of the law at some point or another and yet only those of color get slapped with the book for those misdemeanors.

In the TV series The Wire, Deputy of Operations Rawls (the series' go to hardass for everything) demands of one of his intradepartmental snitches to find something that the protagonist cop is doing against policy. The snitch replies, "But he's not doing anything wrong." Which riles up Rawls to respond with "With this big book of regs, and you can't find anything that he has done wrong?!? If you can't find something that he has done wrong then you shouldn't even call yourself real police!" In this vein, communities of color are held to the 'letter of the law', where the law is written in such a way that it is impossible to lead a life without some minor offense and the majority of those with middle-class privilege receives the 'spirit of the law' treatment and then turns around with genuine incredulity that if cops are arresting these people of color they must have been doing something wrong.

So what is the solution to this paradox that can't be ignored and worked out on itself nor legislated away?

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