Saturday, July 13, 2013

Reasons and Doubts Part II: After the Verdict

I posted this on my facebook wall, but it really is more of a post-verdict follow-up to this post.

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In an idealized criminal justice system, 100 guilty men go free lest one innocent be convicted.

In an idealized criminal justice system, defendants are acquitted even when we believe they really did it, because one cannot dismiss an alternative account as unreasonable.

In an idealized criminal justice system, verdicts are rendered not just based off a gut sense of "justice", but based on careful weighing of all the evidence to determine if it does not just make guilt probable, but "beyond a reasonable doubt."

I've seen many people talk about the Zimmerman verdict with respect to these idyllic values of criminal justice. And they aren't wrong to do so.


We do not have an ideal criminal justice system. As a clerk, do you know how many cases I see where I read the record and go "beyond a reasonable doubt? Really?" It's not that I can't imagine they're guilty, or even that I don't believe they're guilty, but it's not like I can't imagine they're innocent either. Do you know how often I've seen a conviction reversed based on sufficiency of the evidence? Never. As a country, we have no problem convicting people -- some people, anyway -- based on factual records which by any objective metric leave considerable doubt.

We do not have an ideal criminal justice system. At least, not for everyone. The above principles, which should make guilty verdicts quite hard to achieve, are not enforced regularly or evenly.

After all, what doubts are "reasonable"? Narratives which are naturally coherent in our mind. Threat assessments we can imagine ourselves making. Stories in which we can imagine ourselves playing the leading role. All of these concepts are mediated through minds which remain deeply infected with racial bias.

As the Tampa Bay Times documented at the start of this case, a successful "stand your ground" defense is considerably more likely if the defendant was black. Blackness, in the aggregate, impacts our assessment of a reasonable threat, and impacts our assessment of how likely it is that there was a threat in the first place. This finding is no outlier -- anyone with a familiarity with the literature knows just how racialized our perceptions are in this arena. It is willful ignorance to pretend that "reasonable doubt" means the same thing for blacks (defendants or victims) and whites.

This critique isn't answered by referencing our high ideals, for it demands the question, "who is entitled to these ideals? Do we actually take them seriously?" No, we don't. For some defendants and for some victims, we rely on gut feelings and are stubbornly unwilling to imagine alternatives as "reasonable". For others, we demand prosecutors have an armory of smoking guns. The issue isn't about which system is better. The issue is about the distribution. We've established a two-tiered criminal justice, where some people get the benefit of our highest, most civilized ideals, and others don't.

The moral to all this isn't necessarily "George ZImmerman should have been convicted." But we can't keep on heaping black bodies upon the altar of a criminal justice ideal we don't actually have any intention of meeting. At some point, the "equal" and the "justice" have to be harmonized. Right now, they are badly out of alignment,

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