The calls for real transformation of policing are urgent and needed, but not enough. Transformation can start, but not end, there.
The police, after all, are only the front end of the criminal justice system. Prosecutors’ offices are next in line; then courts, trial and appellate. Prisons and corrections departments are the back end. Together, these institutions compose a dehumanizing system, one that speaks invariably of “processing” cases.
Racial disparities increase, rather than decrease, at each step. Disproportionately, people of color are stopped, harassed, and arrested by the police; this is especially true for Black people. They and many other people of color also face racial inequities in terms of charging, plea bargaining, and sentencing.
By 2018, Blacks accounted for just 12% of the nation’s population but one-third of its prison population. African Americans are incarcerated at five times the rate of whites.
In this form of systemic racism, prosecutors, courts, and corrections departments deserve at least as much attention as police agencies. Recent years have seen the election of so-called “progressive” prosecutors. But only a few, including San Francisco’s Chesa Boudin and Philadelphia’s Larry Krasner, have attempted real structural changes in the system, beyond sloganeering.
Overall, courts give structure and durability to systemic racism and antipathy toward the impoverished. Courts tolerate two subsystems. Those with money often can achieve relatively good outcomes, while the millions who are poor usually are consigned to overworked, underfunded indigent defenders and often “processed” into bad outcomes.
In courts, an accused’s wrongs are “crimes,” but the wrongs of police, prosecutors, and judges are “errors” routinely excused as harmless. This leads to impunity and a repetition of wrongs by emboldened government actors, and a corresponding loss of public faith in police, prosecutors, and the courts.
Thanks to the courts, too, police officers who violate the U.S. Constitution in “good faith” usually are immune from liability. No criminal defendant gets a pass for good faith. Further, bad faith or the biases of police officers mostly don’t count. Even if the traffic stop was motivated by racism or a desire to snoop, by judicial rule it is fine if the officer claims a minor traffic violation.
At the system’s back end, prisons are another obvious target for transformation. The land of the free and home of the brave, with less than 5% of the world’s population, has more than 20% of the world’s prisoners. A prison abolition movement, led by people as scattered as Angela Y. Davis in the United States and the sociologist Thomas Mathiesen in Norway, has been around for 50 years or more. It should be heard.
Finally, legislatures are architects of the criminal justice system. They deliberately underfund much of it, especially the defense of the poor. They also have created the redundant layers of police agencies that threaten to smother whole segments of the American populace.
Especially in communities of color, people are over-policed by a stack of police agencies that compete with one another for arrest statistics and prestige. These include a municipal police department, an overlying county sheriff’s office, and sometimes a state police force. Many cities now pile on public housing police, public transportation police, port authority and airport police, park police, capitol police, and campus police — most of these with broad policing powers that extend well beyond their core missions.
We also have more than 90 federal law enforcement agencies, again assigned broad powers and overlapping authority. That’s right: nearly eight dozen nationwide police agencies created and run by the federal government, which in theory has no general police power at all under our Constitution.
So yes, we should start with transforming the police. But it will be too little if that front end of the system — and thus of structural racism, antipathy to the impoverished, and systemic injustice — is all that we transform.
Dean Strang is a criminal defense lawyer, law professor, and author of two books of legal history. He is known for his role in the Netflix series “Making a Murderer.” This column was produced for the Progressive Media Project, which is run by The Progressive magazine, and distributed by Tribune News Service.