Op-Ed: The Future of Justice Administration Must Not Be a Repeat of Today


One year ago, a grand jury voted not to charge Officer Darren Wilson for shooting dead 18-year old Michael Brown, in an incident that sparked a powerful movement against police brutality and the disparate treatment of Black people by the justice system. In the year that followed, the nation has borne witness to a seemingly constant onslaught of evidence that is forcing civil society, in my opinion, to confront uncomfortable yet necessary truths about society’s longstanding negative perceptions of people of color and its racially inequitable administration of justice.

President Obama’s criminal justice tour taking place this fall is providing opportunities that bring the justice conversation into the public sphere. It is a conversation that was resisted by a majority of our society for hundreds of years, as long as we perceived ourselves to be protected from people that will hurt us. Despite the good intentions of the President, much of the justice conversation continues to be defined by judgments about how communities of color are to be policed in order to deliver on the state’s mandate to protect public safety. By and large, we have failed to adequately engage the roots of unequal justice for people of color and address the lack of accountability and transparency within the system.

Clearly, every society needs a justice apparatus to administer the principles necessary to maintain democratic institutions with salience in all our lives. However, justice has never been administered in a vacuum. Long ago, our society struck a dangerous bargain with the justice system; we ignore our mistreatment of people of color in order to feel safe and free from fear of them. Let us not be naïve about how powerful that agreement is and the depth of its roots. These historical roots are embedded in our jurisprudential DNA. They inform impulses, biases, and notions of who should suffer punishment and who should be protected from harm.

The foundation of today’s justice system encompasses three centuries of social and legal norms built on the belief that people of color were at different times savages (Native Americans), feebleminded (Latinos), incapable of normal function (Asians), or not even human (Blacks). The historical narrative guiding the administration of justice today is that communities of color must be controlled in order for law, order, peace and tranquility to be achieved. Thus custody, control and suppression of people of color were seen as synonymous with public safety.

We have evolved, through movement-based struggle, to a place where laws can no longer be explicitly aimed at particular races. However, centuries of laws, policies and practices have built a justice infrastructure that is filled with race effects. Indeed, custody and control of people of color has been so inextricably linked to safety that any response to law violations that challenges the use of incarceration is viewed with suspicion, deemed unworkable, or worse yet, unimaginable. Proponents of the status quo justice apparatus deny this premise of structural racism, using seductive but ultimately hollow and supposedly race-neutral phrases like “tough on crime” and “do the crime, do the time” to support current practices as the best way to public safety.

Recently, F.B.I. Director James B. Comey stated, without any data or research to support his position, that the reason certain crimes may be rising was the so-called “Ferguson effect” in Black communities. He stated:

“I don’t know whether that explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind that has blown through American law enforcement over the last year,”

 That one of the highest law enforcement officials in the land can comfortably comment on the complex factors of race, crime and justice by only having a “strong sense” with no facts in support, speaks volumes about the need for a new narrative on race and justice.

A new justice narrative must have racial equity as a guiding principle and it must also acknowledge the cumulative effects of structural racism on the administration of justice today. New frameworks should assume that the human condition will always have violations of the law, but that the best way for us to be kept safe is to change our justice system from one of revenge and punishment to one of interventions, services and proportionate monitoring of behavior.

It is time we struck a new bargain for how we administer justice and public safety. After centuries of retribution and punishment that has disproportionately affected people of color, it is time to cure the ills of humanity with greater humanity. As Americans, it is so hard for us to use humanity and safety from crime in the same sentence. However, we know that our current model needs an overhaul, as the evidence continues to mount. The mistreatment and mass incarceration of people of color by the justice system is not sustainable. The future administration of justice cannot and should not be a repetition of what we do today.

James Bell, Founding Executive Director, The W. Haywood Burns Institute