Atticus had used every tool available to free men to save Tom Robinson, but in the secret courts of men’s hearts Atticus had no case.Harper Lee "To Kill a Mockingbird"
It is fitting that, that at a time when the rule of law faces an unprecedented challenge, Aaron Sorkin’s adaptation of “To Kill a Mockingbird” is one of the hottest tickets on Broadway. Harper Lee’s novel is a mainstay of school curricula, a work that The New Yorker calls “a kind of secular scripture, one of only a handful of texts that most Americans have in common.” Atticus Finch’s noble defense of the blameless Tom Robinson before a Jim Crow jury has inspired countless schoolchildren, lawyers, and activists; Atticus himself has become an exemplar of our popular conception of American justice.
“Of law,” wrote the Anglican theologian Richard Hooker, “there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world.” Reverence for the law is a key element of our civil religion, the “set of beliefs, symbols, and rituals” that frame our understanding of ourselves as a people and underpin our national identity. In this religion, the goddess Justice stands blindfolded — a paragon of “impartiality and fair treatment” before the law. Popular portrayals like Gregory Peck’s role as Atticus Finch and Henry Fonda’s conscientious juror in “12 Angry Men,” which emerged during the transformational period of the Warren Court and the so-called “due process revolution,” reflect our sense of optimism — that, notwithstanding discrimination against the poor and the marginalized in our legal system, justice remains something within reach.
The irony, of course, is that Atticus is a fiction; neither real in the literal sense, nor as a representation of how we administer justice. This fiction blinds us to the reality of a system where punitiveness is the norm. Just as critical — perhaps more so — to our legal foundations are sinister notions of punishment and retribution and how these intersect with our history of racial domination. Our moral compasses are oriented toward white supremacy. One study found that “when identifying moral words, participants were quicker when the words were written in white than when they were written in black, showing the association of white with virtue and black with sin.” Throughout our history, the wages of this implicit sin have been death for communities of color.
The history of our criminal justice system since the gauzy triumphs of the Warren era has been one of retrenchment, not revolution. Incarceration rates today are nearly quadruple what they were in 1960, when “To Kill a Mockingbird” was first published. Staggering racial disparities are a feature of the administration of justice at every procedural step; black people are punished more harshly by actors across the system, from police officers and prosecutors to judges and court officials. The accused rarely stand trial — plea bargaining has imbued prosecutors with power not seen since the Inquisition, and confessions under duress resolve 95 percent of cases.
In the novel, we do not witness Tom Robinson’s death. It occurs off page — illustrative of how the story centers on the white performance of justice, rather than the harsh impact of injustice on black and brown lives.
In our pursuit of blind justice, what else have we failed to see?
The second Square One Roundtable, convened at Merritt College in Oakland, California, addressed our fundamental understanding of what constitutes justice, as well as the proper role of our courts in delivering justice and meting out punishment. These public forums bring together a cross-section of leaders, community members, academics, and other experts to consider discussion papers authored by leading researchers, with the intent of sparking transformational thinking about what we can expect for our communities and our justice system.
Core to this conversation is the well-established reality that our criminal justice system is the most punitive on Earth. We incarcerate more of our people for longer sentences and for crimes that wouldn’t rate discussion in other countries. We have placed a series of cascading social crises — in housing, addiction, and mental health — at the door of our courts and prisons.
Our system is not indiscriminately punitive; on the contrary, the American criminal justice system is uniquely and excessively punitive for some, while failing to uphold notions of justice and accountability for others. Our views on who should be punished and how are highly bounded by race and class, not just the severity of the underlying offense. We decide which crimes are “serious” by first looking at who commits them, as even a casual news observer could divine. How else to explain a system that could describe Paul Manafort, whose international record of corrupting elections is well-established, as living “an otherwise blameless life” while sending a formerly incarcerated woman to prison for voter fraud? What else could explain Chicago Mayor Rahm Emanuel’s outrage at the cost to taxpayers of Jussie Smollett’s false accusation and his silence over the city’s $113 million in payouts for police brutality cases in the last year alone?
Stanford Professor Jennifer Eberhardt’s research on implicit bias underscores how our understanding of crime and the need for punishment are racialized. In two experiments, Eberhardt and her collaborators demonstrated that racial disparities actually drive support for harsh policies. They found that participants cared more about crime and supported more punitive policies when they were told that prisoners were disproportionately black: “Exposure to extreme racial disparities, then, can lead people to support the very policies that produce those disparities, thus perpetuating a vicious cycle.”
The duality of punitive excess for some and impunity for others is, in fact, the hallmark of our justice system. It undergirds what Professor Khalil Gibran Muhammad, in his paper for the Roundtable, calls “the foundational lawlessness of the law itself.” Perhaps the best encapsulation of this lawlessness is Supreme Court Justice Roger Taney’s assertion from the bench in Dred Scott that black people were “so far inferior that they had no rights which the white man was bound to respect.”
Punitiveness is a historical reality borne of necessity — the need to exert social control, extract labor, and police the margins of citizenship. As at the first Roundtable, participants delved into our history of racism and white supremacy for understanding. “There is no American history,” Muhammad writes, “in which European-descended people did not use racialized forms of punishment, war, or containment against indigenous tribes, immigrants, or enslaved people of African descent.” The origins of our law lie not in a metaphysical understanding of justice, but in a “white outlaw culture that rewarded brute force and strength of arms against racialized others.”
Professor Jennifer Chacón’s paper similarly illuminated how “notions of immigrant inferiority and criminality run through the story of this self-styled ‘nation of immigrants.’ ” Indeed, even as reforms continue to shrink our system of mass incarceration, xenophobia and demagoguery have turned our carceral system on recent arrivals. As Chacón notes, “It would not be an overstatement to claim that immigration enforcement has undergone a revolutionary transformation over the past three decades in the United States…characterized by massive expansion, systematic devolution, and largely unalleviated severity.” Today there are more than 13,000 migrant men, women, and children in federal custody — some of them penned in an open-air camp under a highway overpass, others languishing in for-profit detention centers — for the “crime” of seeking asylum.
Our justice system centers white safety and impunity over and above the humanity of black and brown people. Our courts, instead of serving as impartial arbiters of justice, have been complicit in reifying notions of white purity and black sin. Professor Nicole Gonzalez Van Cleve’s impressive contribution to the Roundtable delineates how our courts have turned process into punishment. The criminal courts, she writes, “Have transformed into a type of public theater for racial degradation…through the discretionary practices and cultural norms of mostly white courtroom professionals.” Court officials routinely “degrade and parade defendants in an expressive manner that reaffirms the division between ‘us’ (professionals) and ‘them’ (defendants).” The ceremonial degradation that occurs in court processes serves to increase what W.E.B DuBois called the “psychological wage” of whiteness; it reinforces feelings of “fear, discipline, and intimidation beyond the subjects of the ceremony and onto all people of color in the courthouse.”
These practices and beliefs serve a more banal purpose, as well. The era of mass incarceration has turned punitiveness into an organizing principle for reasons of efficiency, with extraordinary and disproportionate consequences. The explosion of criminal cases has brought with it the need for quick and cost-effective disposition. Van Cleve notes how labeling defendants “as either ‘social burdens’ to be managed or ‘criminal threats’ to be punished…serves the function of resource allocation in the courts where time is scarce and due process can be ‘costly.’” The categorization of defendants as “either ‘mopes’ or ‘monsters’” is yet another illustration of how prevailing racial stereotypes and fixed understandings of criminogenic behavior have contributed to unjust outcomes for individuals within the system.
Over time, as Van Cleve tracks, “speed [became] a substitute for care. Compromise and negotiation almost entirely substituted for adjudication. Most importantly, individual defendants received inadequate attention to the detriment of their rights, the accurate evaluation of their social or criminal risk, and their post-conviction future.”
If we start over from “square one,” how would justice policy be different?Learn more
In Brown v. Plata (2011), former Supreme Court Justice Anthony Kennedy wrote that “prisoners retain the essence of human dignity inherent in all persons.” These words stand as both an affirmation of classical American jurisprudential values and as a repudiation of our historical record. How should we think about bridging this divide?
Professor Jonathan Simon called for “reimagining our institutions and practices of security through the concept of human dignity” in his Roundtable paper. First, he argues, we must recognize that “[b]eing secure against physical and emotional violence is a precondition for a life of equal dignity….A decent society should achieve security through civilized means and institutions that make civility a priority.” Just as importantly, this conversation cannot be left to the courts alone, nor can it be restricted to solutions that merely equate public safety with crime reduction and envision a robust role for the carceral state.
Oakland in particular, and California in general, proved to be an excellent place to hold this wider discussion of how to reimagine a system centered on dignity. The state of California pioneered innovations in punitive excess like the Three Strikes Law; today, in part due to the Supreme Court’s order in Brown, California has led the nation in criminal justice reform. Since 2011, the state has passed a law “that shifted many state prison inmates to county jails, and was followed by other measures approved by voters that reduced penalties for certain crimes and allowed for more inmates to be released early for good behavior.”
Oakland has a long history of neighborhood power-building and community-led approaches to crime and violence. Merritt College is the alma mater of Huey Newton and Bobby Seale and the birthplace of the Black Panthers. Their embrace of a holistic view of community safety that includes economic and social well-being serves as a precursor to our public health understandings of crime and violence today. The Justice in Oakland session of the Roundtable highlighted ways in which this tradition remains vibrant. Oakland Ceasefire, an evidence-based intervention that focuses attention and resources on those community members most likely to engage in gun violence, has helped to shift the conversation from fear to hope. Every police officer in the city is required to receive training in procedural justice, emphasizing respect for all residents and promoting positive interactions with the community. Programs like Youth UpRising focus on incubating youth leadership and providing young people with services that support their secure development. And restorative justice, which promotes “institutional shifts toward restorative approaches that actively engage families, communities, and systems to repair harm and prevent re-offending,” has been implemented as an alternative to incarceration and punitive school discipline by organizations like RJOY.
We remain far from the complete reimagining of our notions of justice and safety that are required, and our progress remains fragile — even in a place like California. For instance, some state district attorneys have resisted efforts to eliminate the “felony-murder rule,” which has resulted in egregiously long sentences. (The rule allows criminal defendants to be held responsible for deaths that occur during the commission of a crime, even if the defendant didn’t participate in the actual killing or was unarmed.) Next year, voters will be asked to consider a harsh ballot initiative to toughen criminal penalties and expand DNA collection; proponents argue that recent reforms have “threatened the public safety of Californians and their children from violent criminals.”
In his contribution to the Roundtable, Professor Geoff Ward reflected on how our past — the “definitive American histories of settler colonialism, genocide, enslavement, apartheid, and mass imprisonment” — cannot be undone. But if we “instead recognize and address this presence of the past, employing it as a light to better conceptualize, build, and sustain a just future,” perhaps we can transcend it. In so doing, we draw closer to making the spirit of Atticus real.