System Racism & Criminal Justice System: Make Critics Prove Charge

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Progressives say racism is everywhere in the criminal-justice system, but they don’t provide many specifics.

I  worked in the criminal-justice system for a quarter century. It is run, day-to-day, by the crème de la crème of graduates from America’s top law schools. Those institutions wear their progressive bona fides on their sleeves and proclaim it for all the world to hear.

In their offhand rhetoric — insouciant, because they know their bien pensant allies in politics and media will never call them on it — legal elites will tell you that the administration of justice in America is systemically racist. But they are the system. The judges, the top prosecutors, the defense bar, the experts who craft the sentencing guidelines and the standards of confinement — overwhelmingly, they are political progressives.

That’s fine. I’m a lawyer from New York City. I’ve not only lived in and around this world for decades, I have affection for lots of its denizens. Most of them are proud of being on the left. I don’t agree with them politically, but the routine handling of criminal cases is not political. It is clinical: professionals doing the best they can.

And that’s just the point: They do the best they can. That is the antithesis of racism.

These professionals strive to do justice for individual defendants. The concrete experience of routine cases in the justice system is fairness to a fault. The enforcement authorities, defense counsel, and the court frequently bend over backwards to plead cases out to softer versions of the criminal conduct’s harsh reality. They do so precisely to rationalize the avoidance or reduction of jail time.

They will tell you there is endemic racism in the system. If pressed on the matter, though, they would not be able to describe for you any racist things that they themselves have actually done, nor any racist things done by colleagues. Nor can the earnest lawyers who represent the purported victims of racism point you to stacks on stacks of motions they’ve filed claiming the police arrested their felonious clients because of skin color. The crimes, it turns out, are not only supported by abundant proof; they have victims, who are disproportionately black and Latino. The lawyers are at a loss to point to cases in which they’ve shown that prosecutors charged their clients due to racial animus rather than evidence. They can’t cite cases where clients were sabotaged by the racism of the presiding judge. In a system that was pervasively racist, such cases would abound. Not in this one, though.

Still, the legal elites will insist there is systemic racism. There must be, even though no one can put a finger on where it happened, because the outcomes the system produces are not “equal” — equality being a utopia in which the racial composition of those arrested, convicted and sentenced aligns perfectly with the proportion of that race in the overall population, as if all racial and ethnic groups committed crimes at exactly the same rates.

Nor is the problem confined to the justice system. Racism “happens in our residence halls and in our classrooms, at the tables of our dining halls and in our locker rooms, on our sidewalks, within the offices where we work, and in our town.” So maintains Middlebury College president Laurie Patton. Among the doyens of higher education, Patton is the rule, not the exception, in spreading this gospel across the campus. With characteristic clarity, Heather Mac Donald rolled off example after example in a recent City Journal essay. It is not just the administrators, the battalions of diversity coordinators, and the social scientists. According to academics, “structural racism” even “pervades” mathematics, geology, astronomy, you name it — to the point, Mac Donald observes, that the journal Nature claims “the mission of science should be to ‘amplify marginalized voices’ in atonement for science’s complicity in ‘systemic racism.’”

Okay, if they say so . . . but where are the concrete examples?

Mac Donald discerns that the rote self-abasement of academic institutions is detached from lived life. She pointedly asks the questions we should all be asking: What are the specifics of the indictment: “Which faculty members do not treat black students fairly? If that unjust treatment is so obvious, why weren’t those professors already removed?” How have we tolerated an admissions process that apparently lets in thousands of student bigots? Of course, regardless of what they may say, college administrators do not act as if they’re trapped in a racist dystopia. As Mac Donald observes, there is no better proof of this than these same administrators: when not preening about systemic racism, they are gushing about the sensitivity, accomplishments, and integrity of their faculty, students, and alumni.

That is to say: The “institutional racism” prattle would melt if it were ever subjected to the enlightened rationalism that is supposed to be the university’s reason for being. But that is Western culture, and out leaders don’t do Western culture anymore.

What do they do? Marxism and voodoo, mainly. When you cannot cite hard evidence for the cosmic propositions you swear by, it can only be because we’re beset by “false consciousness” that prevents us from perceiving how whiteness and West-ness have corrupted us. All we can say for sure is what “disparate impact” theory tells us: We don’t have equality of outcomes, so that must mean we don’t have equality of opportunity, right? Because, you know, every one of us is a Mozart, an Einstein, a Jane Austen, a Bobby Fischer, or a LeBron just waiting to happen, if only there were a level playing field.


Being a human society, ours is inevitably an imperfect society. It is a great society, however, because of its capacity for continual improvement. America frees individuals to achieve, but it teaches them that, individually and collectively, we all make mistakes. We need to check our premises because even the best among us are, from time to time, wrong about fundamental things. We strive for a more perfect union not only by learning from past errors but by remembering we are just as human, just as prone to error, as the forebears we presume to judge.

It is a lot to ask black Americans to concede redemption in a society that abided race-based slavery for over 200 years, and then — even after eliminating it in a bloody civil war — tolerated de jure racism for another century, and de facto racism even after Jim Crow ended. The last half-century has been marked by increasingly determined efforts — many of them more well-meaning than beneficial — to stamp out the vestiges of racism. Yet in light of our history, it is only natural for black people to be suspicious of racism in law enforcement and our institutions.

We nevertheless need law enforcement and strong institutions if everyone, including black Americans, is to enjoy the opportunities for prosperity in a free country. The imperative is to improve the pillars of our society. To condemn, defund, and banish them would not be “Change!” It would be suicide.

The best we can do is what we are trying to do: Operate our justice system, our educational institutions, our government, businesses, and society in a manner sufficiently sensitive to racism that concrete examples of it are few and far between. The regnant ideology never cites real-world examples. Its disciples would have us believe our society and its institutions — the very society and institutions that have promoted our elites to their lofty heights — are irredeemable. They’re for perfect equality, in which they remain perfect and everyone else is equally miserable.

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