This office extends its deepest sympathy and condolences to the families of George Floyd, Breonna Taylor, and Ahmaud Arbery, and to the thousands of others in this country whose loved ones have been killed in acts of racist violence.
The wanton killing of Black people in the United States by the police and racist white people is abhorrent. It must end immediately. But that is just one of the most visible and horrific examples of how racism in the United States destroys lives. Black lives. Brown lives.
Anyone who thinks that racism does not run like a river of sewage through the criminal justice system of the United States is delusional, uneducated, or simply content to maintain the status quo because of the benefits they derive from it.
Here are two reports detailing how racism infects the criminal justice system at every turn: from who gets arrested, who gets their charges dropped, who gets the resources to fight a case, and who gets the opportunity to avoid prison:
Beyond the unassailable statistics of how racism in our criminal justice system disproportionately leads to more death and pain for Black and Brown people, there is an underlying truth that until white people fully recognize the humanity of Black and Brown people, there will be no justice in the United States. And there will be no peace.
To move beyond the racist culture of death that has economically and politically sustained white people to the detriment of Black and Brown people, we need to understand how deep and pernicious racism is, and how racism has been interwoven into the de jure and de facto laws of this country. By de jure, I mean the official laws on the books. Like the U.S. Constitution that for over 80 years stated that the descendants of Africans were to be counted as 3/5 of a person1 U.S. CONST., Art. I, Sec. 2(3) and that, to this day, bans all slavery and indentured servitude, EXCEPT “as a punishment for crime . . . .”2 U.S. CONST., Amend. XIII. Like the laws that forbade Black people from owning property, from voting, from living near white people, from going to school with white people, from eating near white people, and from marrying white people. By de facto, I mean the history of extrajudicial enforcement of racism through violence: lynchings, killings, beatings, mutilations, cross burnings, voter intimidation, and other actions that white people have used to keep Black and Brown people subordinate to whites.
At the time of the founding of this country, the prison as we now know it did not exist. Police departments as we know them did not exist. As prisons were built in the 1800’s, it was white people in the North who mostly were imprisoned. The South hardly had any prisons; those that did exist mostly were filled with white people. That changed after the Civil War when Black people began to have economic and political power in the South. White people, under the banner of the KKK and with the approval of the federal and state governments, violently fought to strip Black people of their safety, welfare, and wealth. White people used lynchings and then the court-sanctioned death penalty to terrorize Black people. Prisons became the way to reinstitute the enslavement of Black people through “convict leasing” to make money for white people and to enforce disparities of wealth and opportunity between white and Black people.
The more historically recent campaigns for “law and order” under Nixon, for a “war on drugs” under Reagan/Bush, and for the drastic expansion of criminal penalties under Clinton built upon the carnage of the post-Reconstruction South and have led us to the current mass incarceration of Black and Brown people. The United States stands alone on the planet for the rate at which it imprisons its own population, feeding a vast prison-industrial complex while starving the life and wealth out of Black and Brown communities.
There is, however, a growing movement to relegate prisons to the garbage heap of past sadistic inventions created to execute and torture human beings, such as crosses, pillories, guillotines, gallows, stockades, and other barbaric contraptions. There is a movement to hold police accountable for their brutality, to dismantle police departments that operate like occupying armies, to move much needed funds into schools and social services, and to use our tax dollars to employ safety professionals who will treat everyone they have to arrest as if that human being were their own sister or brother.
Here in this land, the Judicial Council of the Navajo Nation has a Peacemaking Court to resolve disputes and to help members of the community heal from the wounds caused when one transgresses. Their method of handling criminal behavior does not rely upon individual retribution and destructive incarceration. Instead, they look to find ways to bring the aggrieved parties together and to forge a resolution that moves towards mending the torn relationships, not creating unending cycles of recidivism and pain.
Similar ideas can be found in efforts to replace punitive retributive justice with restorative justice and transformative justice systems.
While this law office fights for its clients under the regime of laws that currently exists and seeks to gain the best outcome possible for each client, we are also fighting for the day when, as crazy as it sounds, there will no longer be a need for any criminal defense attorneys. For the day when we realize that the 22-year-old “felon” was an 11-year-old who, had we provided the right support, never would have turned to criminal behavior. For the day when we realize that even someone who commits a terrible act should be treated humanely. And for that day when all human life is treated with sanctity, obscene disparities of wealth are a source of deep shame, and interpersonal relations premised on dignity, respect, and empathy foster peaceful, vibrant, life-affirming communities more than hundreds of laws, thousands of militarized police officers, and millions of human cages ever have or ever will.
That day will come. Let’s make it happen sooner rather than later.
Sean M. Maher