I’m back from vacation, and will resume my regular blogging routine. My thanks to those of you who stuck it through the past couple of weeks. Happy New Year!
I consider myself lucky for a long list of reasons, but certainly chief among them is the truly impressive friends that I have amassed over the years. It’s often difficult (perhaps impossible) to engage in any kind of self-assessment that isn’t wildly coloured by self-serving biases, despite our best attempts to overcome them. I take no small amount of comfort, therefore, in making self-evaluations by proxy through my close friends. I admire and deeply respect these people, and the fact that they seem to actually enjoy my company (or at least do an excellent job of pretending to do so) leads me to suspect that I must be doing things at least halfway right.
One such friend is a young woman I met while studying at Queen’s. Kelly (not her real name) and I met while I was working at a bar in Kingston. She is a fiercely intelligent person who is very knowledgable about matters philosophical as well as legal (she’s now a law student at Queen’s with an undergrad in philosophy). I was able to meet up with her during my vacation in Toronto to catch up. We got to talking about her experiences working at a legal clinic in Kingston, and defending her first actual client as ‘first chair’ of the legal team. She was understandably excited that she was able to steer her client away from undeserved jail time (a sad story involving drugs, a negligent mother and overzealous police officers).
One of the legal maneuvers she was able to exploit in her client’s defense is a process called ‘diversion‘ – basically it is a way of having ostensibly guilty first-time offenders perform community service and restitution in lieu of jail time. From her description of the way it works, it requires agreement from the prosecutor (which is often not that difficult to obtain) that the defendant is essentially ‘a good guy’ who can make recompense and slide through without going to prison. Now, I have a notoriously bad poker face, so she immediately knew about my knee-jerk misgivings when it came to a program like this. After all, who could object to a program that includes the exercise of judicial restraint and principles of justice?
My reservation about this program is the bit about evaluating someone’s ‘good guy’ quotient. Any kind of instinctual evaluation of someone’s character is going to inherently smuggle in a contingent of biases, both learned and innate. Because it’s the pool in which I wade, I quickly began to question the level to which diversion favours white or upper-class defendants over poor black (or, in Canada’s case, aboriginal) ones. After all, certainly risk of recidivism is part of the factor by which ‘good guy’ is judged, and we know that, in some cases, race is believed to correlate with recidivism.
What this means, I suspect, is that this process will stack the deck in favour of people who already get comparatively favourable treatment in the criminal justice system – white, middle-class people. Those who fail to qualify for diversion based on this ‘gut instinct’ evaluation will be, disproportionately, those who are in greater need of a helping hand What Kelly was quick to point out to me is that I wasn’t describing a problem with diversion per se, but rather the consequence of racism. The fact that the program augments privilege doesn’t make it a badly designed program, it just is what it is.
As is my habit, I reached for an analogy. I likened the racism of the diversion system, of any system that has the effect of racism even in absence of the intent, to bullets tipped with poison. Certainly the biggest problem, the most common problem, is getting shot with a bullet. The bullet (racism) itself is probably gonna kill you if you get hit with it. By all means, we should be safeguarding ourselves from bullets – wearing vests, controlling guns, whatever it takes. Similarly, on its own the poison (the program) is pretty innocuous – it won’t hurt you unless you recklessly come into contact with it.
No, the problem is when the two work in conjunction. As 50 Cent can attest, some people survive getting shot. As pretty much any character in Hamlet can tell you, poison is a bit harder to shake. The poison wouldn’t be in your system without the bullet to deliver it, but once it’s there it does far more damage than the bullet would on its own.
To dispose with the metaphor for a moment, programs like diversion are not inherently racist, nor are they designed to solidify privilege. However, despite this lack of intentionality, it may have effects that precisely mimic what an intentionally-designed racist system would produce. That is, the ‘right kind’ of people can avoid prison, whereas the ‘others’ are far more likely to end up imprisoned for the same crime.
Now I could have chosen a far less violent metaphor (the first one I thought of was NABQI, but not everyone has a background in toxicology) and diversion is not poisonous as such. Indeed, I think any program that takes strain off of the prison system and gives a wider array of options to first-time offenders is probably a good thing. I certainly don’t want to see every kid caught in bad circumstances go to prison (where ze is at risk of becoming a far more hardened criminal), and if diversion accomplishes that task then I am all for it. My obection certainly surprised Kelly, who knows me to be quite liberal when it comes to methods of addressing crime.
The point that I tried to make with my analogy is that seemingly-benign ventures can become instruments of racial supremacy if we fail to take into account issues of privilege and power. Diversion doesn’t necessarily have to be racially disadvantageous, provided it is audited carefully to avoid inadvertant (and overt) biases. However, establishing these kinds of programs without fully appreciating the cultural context in which they exist will only serve to augment the effect of systemic racism, and make our bullets even more deadly without realizing it.
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I’d say that this does mean the diversion program is flawed, in a specific way: it’s flawed in that it’s vulnerable to amplifying racism, because of its reliance on the personal judgement of flawed, (unintentionally) racist individuals. That argues for fixing the system by, say, screening out race identifiers from the information used to make diversion decisions, for instance, or maybe just instituting an automatic, graduated diversion system with lots of failsafes.
It’s similar to a machine being badly designed if the emergency stop button’s difficult to reach. Sure, the stop button works fine and should ideally never be needed, but it’s tempting fate to ignore non-ideal factors instead of addressing them.
It also points to the questions we should be asking about the role of subjectivity in the criminal justice system, on a larger scale. We have an ongoing debate in our house as to whether intent can really be judged or whether it should even matter. If you kill someone, that person is still dead regardless of if it was a crime of passion, a premeditated murder, or an accident. My better half likes to argue that it doesn’t matter at all, the penalty for murder should be the same across the board, and there shouldn’t be “gun” or “gang” enhancements, which typically are used to make a POC offender’s sentence much longer than their white peers’.
I get uncomfortable with the thought of involuntary manslaughter being treated the same as a premeditated murder, but it presents a really interesting thought experiment.
Another thing we really like the idea of is not allowing the accused to be in the courtroom with the jury/judge. Instead, they should be allowed to watch and participate in the trial from another room via cc tv or something like that, so that their appearance and demeanor can’t influence their judgment or sentencing. It would be fascinating to see a truly color-blind justice system.
I just had a vision of VR tech being used to present an avatar of the accused, which would respond in real time.
Mark D. says
“I likened the racism of the diversion system … to bullets tipped with poison.”
You really need a better analogy, because this one is horrible.
I understood what you were talking about perfectly well when you just said it. Your writings on racial issues are clear enough (to me at least) that you don’t need to obscure your issues with pointless similes.
Excellent post; I’d been reading Tim Wise earlier this evening, and so the issue particularly struck me. I think the poison tipped bullet simile is fine, and vivid, and clear. I was going to ask: But what should we do instead?, but I see that Pteryxx already began answering that question.
For those who don’t know toxicology (like myself), the Wikipedia article is more useful than the acronym reference page. 😉