My thoughts are jumbled. They are noisy and confused and very small. Because I am small and without power and the world is noisy and confused. My voice adds nothing but more noise.

Our justice system is built on a racist history. So many people I know don’t see this, don’t understand how institutions can be racist. I wonder how they could not be. They were created when men could own black people. They evolved during a time when racial hatred was socially acceptable and even codified into law. The justice system adapted as racial hatred became covert that is how it–and other systems–can be racist, even without malice on the part of people acting within them

But it’s true.

Our justice system is built on assumptions that come from the lives of the privileged class which was white for hundreds of years and remains mostly white to this day. Even as the world changes and more judges, more lawyers, and more jurors are people who did not grow up in families of power, we still have a system that was designed for and adapted around the needs of the privileged.

We still have a justice system that expects people to trust police officers and treats as suspicious a person who wishes to avoid a police officer or reacts angrily to a police officer. We still have a justice system that models both innocent and merely blameless behavior on the way white Americans with a certain amount of economic stability move through their daily lives: with bank accounts, with “proper” ID, with 9 to 5 schedules, with somewhere that’s not a public space to go to kill time, with “familiar” or “real” names.

These are assumptions which privilege white, middle class Americans and which disadvantage people of color in general and in particular people of color who are of lower incomes. Don’t overlook how institutionalized power structures, vestiges of racial social structures and a long history of discrimination themselves account for the poverty of many families of color. (Ta-Nahisi Coates lays out some of how this works in his Case for Reparations and his Case for Reparations: An Intellectual Autopsy, examining how his mind changed with regard to the issue over time).

These assumptions are in my mind right now and I am thinking how those assumptions connect with an assessment of judicial attitudes that I read last week: “The presumption of intimacy here, the judge’s conviction that she can know the person before her, and that what she is judging is his character, is astonishing.”[fn1] Yet it is the most common feature of judges–particularly judges who deal with “human cases” rather than economic ones (criminal courts, family courts, juvenile courts, and the ones that combine criminal and family matters: guardianship, domestic violence).

It is in this attitude of judges (and lawyers and courtroom deputies and jurors–Judges have the most important voice in the courtroom but the attitude is common) where I find it easiest to see the institutionalized racism. The weight of our history as a nation with one group of “good” people (white ones, with money, and a range of acceptable social behaviors learned through the institutions they shared with one another) and one group of “bad” people (nonwhite ones, without money, whose social rules were unintelligible to the people in charge) informs the decisions made in courts, even by people who in the Bad Old Days would not have been allowed to make decisions in courts.

As Sotomayor said in a lecture at Berkeley in 2001, “to understand takes time and effort, something that not all people are willing to give.  For others, their experiences limit their ability to understand the experiences of others. Others simply do not care.” Understanding people who lead very different lives from you is exceedingly difficult, yet this is all the more reason why it is essential for a judge to make a conscious commitment to understanding the lived experience of the parties before her. Doing so is inevitably a challenge, but it is impossible if one doesn’t bother to try. (Disagree in Good Faith? By John Paul Rollert in Jurisprudence at Slate)

My thoughts are small; they are a mess, but they push against the connection here. The damage which comes from judges believing they just know the character and guilt, innocence or motivations of the people before them springs from the failure that Sotomayor notes.

I can’t say it clearly, the connection here. But I know it’s there.

My first criminal trial was nearly 15 years ago. A police officer radio’d to the station that he had observed a “hand to hand” transaction (which is police-speak for drug buy) on a corner between a tall white guy in shirtsleeves and a shorter black man in a windbreaker. Asked to describe the black man, the police officer repeated that he was shorter than the white guy, was wearing a windbreaker and had a stocky build. He told the dispatcher which block the black man was on and which direction he was headed. The officer identified the white guy by name (it did not come up at trial what happened to the white guy, who did not testify against the dealer) but not the black guy.

Twenty minutes or so later, two different police officers walk into a bar near where the first officer said he had seen the hand-to-hand transaction. It’s 11:00 am on a Wednesday and there are three or four black men inside, at least one is an employee. One of them is seated at the bar, drinking orange juice.

He has about $160 in his pocket. He says his wife had given it to him, so he could do the month’s grocery shopping. He says he has been in the bar since it opened about an hour ago, drinking orange juice, catching up on the neighborhood gossip. He is not wearing a jacket of any kind, although the officers did find a windbreaker about half a block away, discarded on the curb along with several film canisters, which the officers know are used to package drugs.

Man in the Bar is arrested, charged, and now he was on trial. He opted for a jury. The prosecution puts the arresting officer on the stand. He states that he got a call from dispatch, describing a hand-to-hand between a white guy and a black man, and he went to investigate. He states that the black man was described as stocky, black and in a red windbreaker. The officer says he did not believe the Man in the Bar when he explained he had cash for groceries. The officer says he found the windbreaker near the bar.

Another witness says he saw the Man in the Bar, the man on trial, enter the bar only a few minutes before the officers arrived. The defense attorney gets this witness to acknowledge that he did not see the Man in the Bar with the windbreaker that the drug dealer was wearing.

I am in the courtroom, wondering where the evidence that the Man in the Bar is guilty is. The defense attorney cross examines the Officer closely about the description of the suspect he received. “Where there any other details about the suspect’s appearance?” The Officer says no.

The Man in the Bar had expansive dreadlocks, down to his shoulders and just as wide. He testifies that he has worn his hair this way for years and that he is known to the officer who arrested him. He says that he does not work, but his wife does. He does errands for her during the day, and she gives him cash to do it. They only have one car, which his wife drives to work, he testifies, so he sometimes delays the errands in hopes of finding someone to give him a ride.

The Man in the Bar is convicted and I am the only one in the courtroom who is surprised.



[fn1] This sentence comes from The Strange Intimacy of Serial By Benjamin Wallace-Wells at Slate’s Browbeat blog, discussing the podcast Serial. I credit it here, instead of in the text, to avoid derailing thoughts.


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