Finally, the incremental and diffuse way the war on crime was waged made it difficult for some African American leaders to appreciate the impact of the choices they were making. Mass incarceration wasn’t created overnight; its components were assembled piecemeal over a forty-year period. And those components are many. The police make arrests, pretrial service agencies recommend bond, prosecutors make charging decisions, defense lawyers defend (sometimes), juries adjudicate (in the rare case that doesn’t plead), legislatures establish the sentence ranges, judges impose sentences within these ranges, corrections departments run prisons, probation and parole officers supervise released offenders, and so on. The result is an almost absurdly disaggregated and uncoordinated criminal justice system—or “nonsystem,” as Daniel Freed once called it.James Forman Jr., Locking Up Our Own, pp. 13-14.
I wrote recently about the decentralized nature of the criminal justice system. It’s literally the first thing written on the first page of my law school criminal law book. It’s placement there suggests that it is the foundation of understanding criminal law. Understanding the whole edifice requires understanding this basic fact. The professor’s placement suggests they agree. By the time I read this James Forman quote, it seemed like welcome confirmation of a fact universally understood.
The protests and political discourse since the death of George Floyd came as a rude awakening. Many people believe that there is a unified criminal justice system. They believe that the people in the system share incentives, motivations, and political views. They believe that the system can act in a coordinated way to carry out controversial political goals. If this all seems a little abstract, let me be more concrete. There are people out there who believe the system is designed to kill people of color and then cover it up. Or as some say, “either the system is broken or it’s working exactly the way they planned.” You can buy that on a shirt here.
I disagree with this view because I believe I understand some basic things about our “almost absurdly disaggregated and uncoordinated criminal justice system.” The fact that it is a non-system, as Daniel Freed called it, is good news for those who believe the system is malicious. After all, an absurdly uncoordinated system could hardly organize a police murder and cover it up. It would take the collusion of agencies with different missions, different elected leaders, and different motives. Or, if you believe that police murder and cover happen organically, by accident, it would require the failure of multiple layers of oversight by people in and out of uniform.
I kind of assumed that people were aware that the police were themselves policed by several layers of oversight. Any one of them could speak up and foil a murder conspiracy and coverup. It would take a massive, multi-agency failure to something like that to happen, not to mention a failure of investigative journalism.
Nevertheless, there are people out there who believe the system is designed to kill people of color and then cover it up. I hope those people would be receptive to this argument. It’s not political. It doesn’t rely on a rosy view of police or of human nature. The view is simply based on the premise that it’s hard to get different agencies to cooperate, and the more agencies you need to cooperate, the less likely cooperation will happen. This view doesn’t even take into account the fact that committing murder and covering it up is morally outrageous and offensive to the normal people that work in these institutions. In other words, even if you could get a bunch of different agencies to work with each other, you’d be asking them to cooperate on the most heinous crime in the law. The criminal justice system barely gets its act together to stop crime!
Here’s another shirt from the same site:
At least this shirt calls it the “judicial system.”