The fact is, we operate two criminal justice systems in the United States. One is for affluent white people, who when accused of crime are treated as citizens, as people with rights. They get the benefit of the constitutional protections we boast about in textbooks and television shows, protections like due process and trial by jury and proof beyond reasonable doubt. And they are often shown great leniency for very serious crimes, including homicide.
The other system is for poor people and racial minorities, who are treated more like trash to be removed from the streets. They are policed as if they enemy combatants; churned through overcrowded, underfunded courts that traffic in guilty pleas and long prison sentences for minor offenses; and harassed or killed by cops whose brutality would never be tolerated against those whose wealth and skin color entitles them to the privileges and protections of the first system.
Another fact is, the vast majority of the American legal profession maintains steadfast silence about this two-tiered regime. There are vocal civil rights organizations, legal aid groups, lawyer-activists and scholars who tirelessly call attention to, and try to combat, what Michelle Alexander terms “the new Jim Crow” permeating American criminal justice. But these voices, articulate as they are, constitute only a small fraction of the nation’s lawyers. The rest of the profession mostly prefers to keep its mouth shut and look the other way.
In this respect, as in others, the new Jim Crow differs little from the old one. A century ago, when swaths of the south were ruled by lynch law, and the rest of the country barely pretended to apply the bill of rights to people other than affluent whites, it was left to civil rights groups and a few conscientious lawyers to press for reform in the courts and other public arenas. Most of the profession, when not denouncing the reformers for stirring up trouble, sat on the sidelines and pretended not to know what everybody what every sentient person knew — that in the administration of criminal justice, the constitutional promise of “equal protection of the laws” was nothing but a cruel joke.
And fifty years ago, when the Supreme Court finally began to take seriously the idea of equal protection, it did so despite the indifference, if not the active hostility of, much of the legal establishment. As Earl Warren and his colleagues embraced the radical proposition that the bill of rights actually applied to everyone, including racial minorities and poor people — and that police, prosecutors and courts would have to change their practices accordingly — the predominant reaction among legal elites was concern about judicial activism, about getting involved in messy social and political matters that did not lend themselves to “legal” resolution, were not the proper province of lawyers, were better left to others to fix.
And today? Most lawyers, if we think about the matter at all, know perfectly well that criminal justice in this country is in disgraceful condition, that it makes indefensible distinctions between white and black, rich and poor, first class and second class. It’s just that we prefer not to talk about it. We leave that to the civil rights groups and the the criminal law specialists and the street protesters. Maybe we privately hope they succeed in changing things. But it’s really not our problem. There’s no money in it, and our well-heeled clients wouldn’t be too happy if we criticized the system that treats them so well.
We should consider the possibility, though, that our silence is self-incriminating. Lawyers, after all, are the guardians of the legal process, and we profess allegiance to the ideal of equal justice under law. As we play the part of helpless bystander to America’s two-track system, we do more than expose our fellow citizens to discrimination and mistreatment and gasps of “I can’t breathe.” We expose ourselves to charges of fraud.
Originally published at CommonDreams.
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Bruce Hay is a Professor at Harvard Law School.