In Part One, I questioned if those who advocate “criminal justice reform” are even aware of what “justice” is; what they propose to “reform”; and if they have any concept of the consequences of what they advocate.
In Part Two, I’ll address how advocates attempt (and fail) to justify “reform” with statistics.
The prevalent claim for “reform” is that criminal justice in America is “systemically racist”. To which I respond, show me the evidence.
Was there racial bias in the past? Of course. I was a child in the segregated South. I know what de jure racism looks like. I’m neither naive, nor an apologist for the evils of the past.
But that was then.
In the nearly four decades I’ve worked in the criminal justice system, I’ve never observed even one episode in which any sort of racial bias was a factor in what occurred in a court proceeding. It wouldn’t be tolerated by any I know who work in the system — and the courts have repeatedly made it clear that racial bias is impermissible. The ultimate legal authority (the United States Supreme Court) has repeatedly declared the Constitution outlaws racial bias in the criminal justice system.
“Systemic’ derives from the word “system”. So to call the criminal justice system “systemically racist” is semantically absurd — and factually false.
Statistics can be dug up to supposedly support any dubious claim, so saying some support claims of “systemic racism” in the criminal justice system is no surprise. But close analysis of a couple of “studies” illustrates doubts about those claims.
In 2014 a “study” was published in the Journal of Empirical Legal Studies with the impressive title ‘An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?’ which predictably concluded there were such disparities. It was based on reviews of “case summaries” by a group of law students. In 2015, Justice Clarence Thomas described that “study” this way:
“The law students make their moral judgments based on written summaries — they do not sit through hours, days, or weeks of evidence detailing the crime; they do not have an opportunity to assess the credibility of witnesses, to see the remorse of the defendant, to feel the impact of the crime on the victim’s family; they do not bear the burden of deciding the fate of another human being; and they are not drawn from the community whose sense of security and justice may have been torn asunder by an act of callous disregard for human life.”
In 1987, the Supreme Court upheld a death penalty against a claim of racial bias, and said the following about another study which purported to demonstrate bias in imposition of death sentences:
At most, the Baldus study indicates a discrepancy that appears to correlate with race. The discrepancy indicated by the Baldus study is a far cry from the major systemic defects identified in [a 1972 case that overturned a death penalty].
As this Court has recognized, any mode for determining guilt or punishment has its weaknesses and the potential for misuse. Specifically, there can be no perfect procedure for deciding in which cases governmental authority should be used to impose death. Despite these imperfections, our consistent rule has been that constitutional guarantees are met when the mode for determining guilt or punishment itself has been surrounded with safeguards to make it as fair as possible.
Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious.
In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.
(Internal quotations and citations omitted.)
In short, the Court reiterated the principle of statistics that “correlation does not imply causation.”
I could go on with other examples of debunked “studies” criminal justice reform advocates rely on to justify tearing down the existing system. But they all regurgitate hypothetical conclusions based on the same invalid statistical reasoning.
What is not hypothetical is what results when “reforms” have been enacted: Reversion to Rousseau’s concept of “freedom” where each individual “obeys only himself”. If you want something, you simply take it from a store without paying.
Or if your preferred choice of how to live is to be homeless, while publicly injecting intravenous drugs, and preying on anyone who enters your field of vision, then “criminal justice reform” has been shown to allow you the “freedom” to do so.
The mantra of “criminal justice reform”, like so much of modern culture, is vapid nonsense that sounds noble and compassionate to people who couldn’t explain it if offered money to do so… but is a societal disaster when implemented.
Keep that in mind the next time it’s the topic of discussion.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.