Thread by @ProfFerguson

Some articles stick with you and make you rethink first principles. This article by @equalityAlec is one such article.

currentaffairs.org/2020/08/why-cr…

One lesson arising from the “defund police” movement is an awareness that structural inequities in housing, health, education, jobs, addiction treatment, mental health, etc. create “problems“ that some people think police solve. 1/14

While the critique is directed at police, there are other actors that can more immediately respond to these structural inequalities. Judges,
for one, are confronted with these arguments every day. 2/14

Any defender can tell you how arguments contextualizing an act are received. Judges dismiss inequities as “just making excuses” or not taking responsibility. Judges claim sympathy, but an inability to consider the societal inequality that underlies the act. 3/14

How many times have you heard the argument, “I understand, but you had a choice.” “You had a tough life, but we all make decisions.” “You are making excuses and not taking responsibility for your actions.” 4/14

Even pleas for mercy/leniency are framed as human challenges/frailty not the result of structural/systemic constraints. The focus is on the individual and not the systemic realities which judges claim they cannot consider as they enforce the law. 5/14

For judges sympathetic with the recent critiques of criminal justice advocates there is a simple change you can make: Stop ignoring the structural/systemic pressures bringing people to court. 6/14

Ask yourself three questions:

Was this choice/act the result of systemic racial and socio-economic inequalities?
Am I perpetuating that same structural inequity in my judgment/sentence.
Can I lessen that systemic harm. 7/14

The answer in almost all non-violent property/drug cases is going to be yes x3. So what to do? At a minimum, stop denying systemic inequality. Stop pretending that the facts of this case are not caught up in the power structures of everyone else. 8/14

At a basic level, don’t frame culpability as an individual choice without also considering the systemic pressures. Don't default to those rote statements about personal responsibility without acknowledging the larger context. 9/14

At a deeper level, ask whether your judgment, decision, sentence, credibility determination, ruling etc. is reifying inequality or not. As a judge you get to decide whether to continue or stop it. 10/14

Also, there is nothing stopping judges from explicitly taking into account the structural violence of poverty. There is nothing stopping a judge from doing the contextual work themself in sentencing and making a record. 11/14

For judges, the question should be why is my job essentially “judging poverty”? And, then, shouldn’t it be to remove those structural pressures to reduce the powers that create cycles of poverty. 12/14

Judges who see the structural critique, and their role in it, can use their power to counter the inequities. There are a dozen choices a day that can push back on adding to the socio-economic and racial inequities. 13/14

At a minimum, ask whether your way of looking at the problem of “crime” and punishment confronts and challenges the deep systemic failures that fuel poverty, over-policing, and the recent protests about race and fairness in the criminal system. 14/14.