Justness in Justice: 

Lessons from Ferguson and Facebook

In November-December of 2014, a string of police killings of unarmed black men were brought into the media spotlight, raising long-standing justice issues involving the unequal treatment of poor, young, urban, black males by law enforcement. These events led to a nationwide protest movement to bring awareness to racial bias in the criminal justice system, while also spawning a public debate on both traditional and social media on the merits of these protesters’ claims that racism is, in fact, a problem in law enforcement.

This essay is an attempt to better understand these protests, and the national conversation that followed on social media sites like Facebook, reflecting on the apparent black-white perceptual divide that exists when it comes to racism in America, to consider other, non-racial factors influencing police shootings, to clarify the generally misunderstood concept of “racism” itself, and to plead for black-white unity in a shared pursuit of fair and equitable treatment under the law, of justness in justice, so that we might repair broken relationships between cops and the communities they serve.

The events that led to these protests, at least initially, were two incidents where discretionary action by police led to the death of two unarmed black men under questionable circumstances. The first shooting, Michael Brown in Ferguson, Missouri, sparked the national protests, but was ultimately confounded by Grand Jury trial evidence that made it pretty clear that Brown was at least partly culpable in the events that led up to his shooting. In this case, despite 16 of 29 eyewitnesses testifying that Brown had his hands up at the time of the shooting, other forensic evidence seemed to suggest that his hands were down, and that he was shot while rushing the police officer after a scuffle in the squad car moments prior. Although Grand Jury evidence was made public in this case, the evidence was mixed and we were left with vagaries and uncertainty about what actually happened, and whether or not the officer had no choice but to shoot and kill this man. What is undisputed, however, is that Brown was unarmed when shot by the officer. Protests, violence and looting ensued in Ferguson in the days that followed a Grand Jury decision not to indict the officer, which served as the flashpoint for later national protests and the widening cultural divide that seemed to take on a life of its own.

Not long after the Brown shooting, another incident in New York City was again brought to light, this time by protesters and the media alike, over an incident that involved the death of another unarmed black man, Eric Garner, who was accosted by the police for selling individual cigarettes (“loosies”) on the street, and who died when a chokehold was used by one of the officers who helped restrain him after he argued and resisted arrest. In this case, unlike the Brown incident, the man was clearly undeserving of the police aggressiveness that led to his death. However, another Grand Jury non-indictment led to further public outrage and another wave of protests in several cities across the county, in which protesters adopted the Ferguson battle cry of “Hands Up, Don’t Shoot!”, “I Can’t Breathe”, and later, “Black Lives Matter” to symbolize growing resentment toward police brutality against unarmed black men. Although the specific circumstances in each of these cases remains clouded by incongruent evidence, disinformation and political innuendo, germinated by both social and mass media, protester rage has since settled in on a cry for sweeping reforms of the criminal justice system, toward policing policies and practices that promote racial fairness, and which hold police accountable when confronting citizens, particularly African-Americans and people of color, who have historically faced far greater mistreatment at the hands of law enforcement, for reasons not entirely related to just race.

I recently posted a series of articles and video pertaining to the Brown and Garner cases to myFacebook page and offered, what I thought, were rather benign remarks about the incidents, suggesting that these cases, as shrouded in controversy as they were, were emblematic of larger, historical injustices toward blacks, and that we should use the protests as an opportunity to have a national dialogue about racial discrimination in the criminal justice system. My plan was to start such a conversation on my FB page.

Can you guess what happened next?

You guessed it, I was verbally lambasted by a small but tenacious hoard of FB friends who were livid that I had racialized these two police shootings when, in point of fact, there was no racial dimension to these incidents at all! I not-so-calmly challenged that notion, cited some well-known books and research, provided data and statistics, and even posted a bibliography of over 1,200 peer-reviewed sociological studies that have shown ubiquitous racial discrimination in the criminal justice system over the past few decades (See bibliography, ASA).

Can you guess what happened next?

You guessed it, I was ridiculed for my bogus claims, and drowned in a swirling sea of reactionary rants, YouTube videos, infographics, conservative news commentaries, and carefully spliced statistics which “proved” that my claims were unjustified, flat out false, and quite ridiculous actually. The rants, which I also fueled with my own indignant commentary (and several of my own unverified statistics, infographics and news sources), lasted for weeks, with one particular thread exceeding 100 posts! During these FB debates, I was accused of being a “race baiter”, of “just stirring things up,” and of hating my own (white) race. It was explained to me that liberals will make a race issue out of anything, as a political strategy, and that the preponderance of evidence most clearly showed that neither the Brown or Garner shootings were racially motivated in any way. These challenges to my pre-existing conviction that justice is not colorblind were sometimes compelling, occasionally backed up with a reasoned argument and methodologically sound evidence, and I was forced to reconsider some of my own bias about racial bias. But because I have worked, studied and taught in the field of criminology and delinquency for the past 25 years, I am also aware that there is widespread consensus among criminologists, legal experts, judges, and other practitioners in criminal justice, including a good deal of agreement among law enforcement itself, that racism penetrates the criminal justice system as much as it does in any of our other social institutions.

Why should we be surprised to learn this? Tribalism is in our evolutionary biology, and it plays out in all our social interactions, including when the police patrol minority neighborhoods. Our cognitive tendency to group people into perceived categories has been well established in neuroscience and social psychology, and can be easily demonstrated using the Harvard Implicit Association Test. To argue that our justice system is colorblind is to argue that tall and attractive people are not more likely to get hired than short, ugly people with the same qualifications, or to argue that women don’t get preferential treatment when pulled over for speeding. Cognitive biases such as these, in tandem with confirmation bias and other inherent biases that all humans possess, help to frame our definition of the situation in many social circumstances, and it’s no accident that our brains operate with these biases. Our evolutionary ancestors needed fast, reliable ways to quickly assess potentially dangerous threats, and to be more efficient information processors. This trait is expressed in our genes as an evolutionary adaptation for survival in sketchy environments, so why should we be surprised to learn that this trait manifests itself in our daily encounters with diverse others, including with young black males in sketchy environments? Surely this is one reason why a young white girl playing with a toy gun in a white suburban playground is at virtually no risk for police intervention, while a young black boy might very well be shot by police in that same playground.

Still, many people – especially white people – refuse to acknowledge that the criminal justice system is in any way racist in its practices, particularly in law enforcement where emotions run high if you suggest that a cop had real racist intent when he accidentally choked a black man to death, or shot a 12-year old black boy with a toy gun in the park, or tazed a black man to death who resisted because they had the wrong guy, or when cops shoot and kill a black man at Walmart as he was holding a BB gun (in the department that sells BB guns), or when they shoot and kill an unarmed black man who was on his doorstep bringing dinner to his family, or when a black man is tazed to death while handcuffed and lying on the ground, or when…it goes on and on.  

 Not one of these stories, however, can be taken as clear evidence of racism in policing. The specific circumstances of each incident always calls into question whether police force was necessary, and the racist intent of the officer is almost impossible to prove. Many times, when a black man is shot and killed by police, he has a criminal record of prior offenses, or he was acting “suspiciously”, or he was shot by a black officer. And whites are also victims of police misconduct too. So no single incident, no matter how it might look, will ever be sufficient evidence of racism. Even looking at the totality of disproportionate shootings of black men by the police is insufficient to “prove” racism in the system because, after all, aren’t black men more likely to be criminals and, thus, more likely to be confronted by police in the first place? To be sure, racism in policing is never an easy subject to talk about, because we never really know what an officer’s intent was at that moment, because we weren’t there, and because the streets where most of these shootings take place ARE dangerous, so police are on high alert in the first place.

Furthermore, the fact that these neighborhoods are often dangerous, leading to situations where shootings are more likely to occur anyway, has as much to do with poverty and lack of opportunity as it does with racism, so it’s important to put these black lives in context. Racism is not one-dimensional, and intersects with being poor and underprivileged, and with other minority statuses, as Patricia Hill Collins points out in her classic essays on the matrix of domination, wherein racism, classism, and sexism all intersect in the lives of disenfranchised people, who are disproportionately minorities. So when a policy or practice in law enforcement disproportionately harms poor people, it is doubly-disproportionate and harmful to low-income African-Americans – which is one reason why blacks are far more likely than  whites to be killed by cops, as a percentage of the population. So racism at this level will always be debated, because it is rarely just about race. But racism has another level.

There are two levels of racism, symbolic and institutional. The first kind, symbolic racism, involves the kind most people think of when they think of racism – it’s that old-school racism, the kind that comes with a grudge. This is the kind of racism where we ascribe negative characteristics or personality traits to individuals based on a perceived racial inferiority of the race that person belongs to. This kind of racism usually conjures up images of slavery, images of police brutalizing people of color during the early civil rights protests, the Ku Klux Klan, separate drinking fountains, and segregation in schools, but it also includes the modern day phenomena of hate crimes and white supremacy groups. More importantly today, though, symbolic racism also includes a set of moral convictions about non-whites. Symbolic racism occurs when a traditional antiblack attitude is paired with a sense that blacks as a whole lack certain character traits that other Americans possess, such as personal responsibility and accountability. In David O. Sears’ classic essay on symbolic racism, he describes it as:

a blend of antiblack affect and the kind of traditional American moral values embodied in the Protestant Ethic…a form of resistance to change in the racial status quo based on moral feelings that blacks violate such traditional American values as individualism and self-reliance, the work ethic, obedience, and discipline (Sears, 1988, p. 56).

Far from eradicated, but with a modern ideological makeover, this kind of racism remains deeply woven into the cultural fabric of our country, and leads to common forms of racial discrimination such as in the workplace, in our schools and, yes, in our criminal justice system.

But racism has a second, more insidious level, called institutional racism, which is racism at the policy level. This is racism embedded in the system as “business-as-usual”, so it is easy to overlook, but more impactful on black lives, particularly in situations where these shootings are occurring, and where cops who shoot unarmed black men are commonly excused for their actions. This kind of racism happens because policies and practices sustain it, not because any single individual harbors deep rooted resentment toward a race of people. No skinheads necessary. It is what sociologist, Eduardo Bonilla-Silva, calls racism without racists.

In the criminal justice system, it includes harassment strategies like “stop and frisk”, and using military equipment in communities instead of community policing or restorative justice approaches. Or not policing Wall Street with the same brutality or aggressive zeal that we police a street corner. Or changing laws so that Grand Jury decisions do not disproportionately deny the rights of minorities and poor people due to the peculiar process where prosecutors collude with police in determining trials and length of sentence. Or de-funding training and education for cops in diversity and conflict resolution, while stockpiling military-grade weaponry in these already tense neighborhoods. These misguided and heavy-handed strategies by law enforcement have had mixed results at best, and often result in the same kind of crime they are ostensibly trying to deter, and do nothing to address root causes. Worse yet, when policies and procedures promote it, police presence in these neighborhoods is seen as intrusive and punitive, establishing a culture of fear, a presumption of guilty, and distrust between police and the poor black communities they serve. Over time, it can foster a negative community identity - a society of fugitives.

Indicting an entire class of people – young, urban, black males – to a mere criminal profile should be a major concern to us all. The problem is one of fairness. Whatever ideological, political or social divides exist in the American cultural milieu, one principle remains steady in our collective psyche – the principle that we should strive for equal chances for everyone, and that no group should be discriminated against because of race, income, gender, religion, disability, sexual orientation or political affiliation. Also, I think it’s in the Unites States Constitution somewhere.

So forget about the “thugs and looters”, those relatively few protesters that Fox News seemed suspiciously obsessed with during the protest movement that spread nationwide following the Ferguson fiasco. While it is true that something like 25% of black men have a criminal record, does that statistic make it fair to subject 75% of law abiding black men to daily pat downs and pullovers under the guise of "suspicious behavior" or because "you fit the profile". Is it fair that poor people, who are disproportionately minority, get sentenced more often, receive stiffer penalties and longer sentences, and are more often executed - FOR THE SAME OFFENSES - as wealthier whites? Such practices in criminal justice should be abhorred by all of us, because if justice can be applied unjustly – if there is no justness in justice – then justice has not truly been served, and a value of fairness for all is no longer a characteristic of the American system of criminal justice. For a nation of immigrants, the most diverse country on the planet, we really can’t do without a sense of fair play, especially when it comes to matters of justice. We are all ill-affected, and we are all culpable for the consequences. So whether you see this as primarily a class problem related to poverty, an inequality problem related to opportunity, or as a race problem, the important thing is that you see it as a problem.

The fact that most of us are not subject to these inner-city conditions and policing practices should not diminish our desire to see reform in criminal justice toward more level approaches, and approaches that work, without compromising our American values of fairness and equality. But our values are obscured by our distance from these places. It’s hard to see an injustice when you don’t directly experience it on a daily basis, making it easy to dismiss or deny. But if we tilt the scales of justice the other way, it becomes crystal clear. If white sons and daughters were as likely to be shot by police while playing with toy guns as black kids, or if a cop’s first instinct was to taze, choke, or shoot you because you “fit the profile”, or because you appeared “threatening” to them, you can be sure the outcry would be louder. Knowing that white men are disproportionately represented in school shootings, domestic terrorism and serial killings, how would white men feel if they were regularly confronted on the streets by police who stated they “looked suspicious” or “fit the profile” of a mass murderer or serial killer? I know lots of white guys that look a bit like Jeffrey Dahmer or Ted Bundy. Would it be fair for police to assume that every depressed, Emo white kid in high school is planning a Columbine or Sandy Hook? Using the same logic we use to profile black men, why shouldn’t we also detain, taze or shoot-to-kill any white man who drives a Ryder truck near a federal building, under the assumption that terrorism is imminent? Should cops assume that all white men displaying their personal firearms are threats to the public, deserving of mandatory street interrogations or worse? What would happen to the collective psyche of white men if we were reminded every day that, because of our skin color and that fact that we are overrepresented in these crimes, we should expect to be seen as a general threat when we are walking in our neighborhoods, or driving in our cars, and that we should get used to regular confrontations by cops whose duty it is to randomly interrogate us because we “fit the profile”, even though we were just walking down the street with our hands in our pockets.

These scenarios are good examples of the often misunderstood term, white privilege, first introduced into the sociological lexicon in the 1980’s by Peggy Mcintosh, which emphasizes the unseen and overlooked advantages in society that whites take for granted. In the criminal justice system, the privilege whites take for granted most often is the privilege of not having to think about, or deal with, police harassment on a regular basis. In fact, one reason why blacks are overrepresented in non-violent drug offenses, for example, is because they are targeted as “suspicious” in the first place. We know this is true because we know drugs are abused at about the same rates among whites and blacks, but blacks are arrested and incarcerated more often for these offenses.

White privilege, then, is not a baseless, collective delusion of the entire African-American community that plagues them with a victim mentality, and it is not a fictitious liberal fantasy that has no grounding in empirical research. White privilege is real, just ask a wise man. When white people as a group can fully acknowledge these conferred benefits, in the context of institutionalized racism, and when we can get over being called “racists” for these institutionalized effects (and get past merely feeling guilty about it in some cases), we will have taken a big step toward leveling the playing field, which would be a real privilege for all of us, equally.

To be sure, blacks sometimes see racial injustice when it does not really exist. The Brown incident in Ferguson is one such example, where evidence of the individual officer’s racist intent is unclear at best, and if we exclude the full dimensionality of racism (institutional and systemic forms discussed above), you could argue race was not a factor at all. But can we blame African-American men for any resentment they may harbor toward law enforcement, given the undue harassment they must endure throughout their lives?

Can this resentment over systemic mistreatment by law enforcement in these communities be reduced to a “victim mentality” characteristic of entire class of people that has been bred into them in the form of a collective personality deficit in which they have all learned to see racism everywhere, and to blame society for their problems instead of solving it for themselves?

Is Charles (“I’m not a role model”) Barkley right?

Whatever your opinion, I think it’s time to talk about racism in the criminal justice system. But let’s be fair here and acknowledge that most cops are good, and that the instances that have galvanized a protest movement are, in fact, not as typical on the streets as instances of white (and black) cops working in collaborative ways with the communities they patrol, and in good faith with the minorities they confront. And if we’re being sensitive to the adverse effects of racism on these streets, we should also be sensitive to the fact that these streets are often dangerous, and that policing is tricky business, often involving snap decisions in the heat of a tense and perilous moment. Invoking your diversity and de-escalation training might be a difficult task at the moment when an offender is bum-rushing you with intent to harm.

But keeping these real-world scenarios in sight shouldn’t be reason to lose sight of our national identity founded in fairness and equal treatment under the law. Of course, life isn’t fair. But the ideal of fairness must reign in our criminal justice system, and no offense to justice for all can be pardoned. Black lives matter. Policing can never be free from a certain amount of bias in intervention practices, but an awareness of the tilted scales of justice can lead to the promotion of policies that work more evenly and effectively in these already disenfranchised neighborhoods, such as improved diversity training for police officers, greater use of body cams, and more effective community policing tactics. We can improve the trust gap.

This is what the nationwide protests sparked by Ferguson are all about – or what they should be about when they’re not. This is what we should be talking about, in my opinion. To that end, my goal was to start talking about this stuff on Facebook. But I soon learned that Facebook is not a venue worthy of a conversation such as this because it too quickly dissolves into conjecture, innuendo, and angry outbursts. Facebook, like other abbreviated forms of communication such as texting and email, cannot adequately convey the complexities of a multidimensional concept like racism. Social media is shallow.

So I’m left wondering, what venue IS appropriate? Can we have a meaningful conversation about institutional racism on the internet? I don’t know, but this is me giving it another try. I’ve posted this essay to my obscure and hardly used blog, in the hopes that anyone who wants to think about this difficult subject could provide their own perspective and insight, as an extended discussion following this essay.

You are cordially invited to contribute to this ongoing discussion. If all goes well, I’d like to bring this blog into the classroom and use your posts as a talking point in my Fall 2015 Criminology class, so that my students might have a wider array of perspectives, evidences, and emotions on the concepts and issues I’ve presented here on the subject of racism in the criminal justice system, so they can decide for themselves. I am particularly interested in conservative voices who I know will be the loudest voices of dissent, in stark disagreement with much of what I’ve written here. But my students won’t hear that side of the story from me, most likely, so I’m relying on your help here. Reaction from the left and middle also welcome and very much appreciated. All opinions are welcome and all posts to this blog will be available for my students in their entirety. Nothing will be edited out of the conversation. For the sake of a more meaningful conversation than the kind we’ve been having on Facebook, I hope you accept my challenge to think more deeply, and help me in offering a more meaningful and well-rounded dialogue on this issue.

Can you guess what happens next?

Kenneth H. Laundra, Ph.D.

Associate Professor of Sociology

Millikin University

Published: December 12^th, 2015, on Laundra’s blog, “Sosh Chat”