Racism and Unequal Protection in the American Legal System

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Dr. Harris serves as Associate Professor of Practical Theology at Regent University as well as Director of the university's Youth & Urban Renewal Center.

During the Jim Crow era, W.E.B Dubois critiqued the American system when he said, "A system cannot fail those it was never built to protect." One would think that Dubois' polemic would be anachronistic to today's America. Lately however, when viewing recent uses of prosecutorial discretion in the criminal justice system, more and more people of color are pondering whether Dubois' point jarringly lingers in today's legal system.

We obviously need our criminal justice system. If it disappeared today, we would see more clearly the important work that it does to protect citizens and to enforce important laws that help to maintain the level of civility that we have in our society. Yet, it also goes without saying that a good thing is not necessarily a perfect thing.

Given our progress over the past forty years, some Americans are comfortable with the status quo, while agreeing there remains continued systemic work to be done before arriving at our nation's promise of equality. Yet, seemingly disproportionate applications of the law leave many people, especially ethnic minorities (both conservatives and liberals), with their eye-brows raised. Some of them are quite angry but not sure of how to express their concerns. So they talk about it amongst themselves, in bars, barbershops, beauty salons, family gatherings, church gatherings, and parties.

Enshrined in the legal process are apparent loopholes, often disguised as 'discretion,' that could very well sustain a history of white-privilege and entrapment for blacks. Before you label me to be a whining "black man, crying racism," it is reasonable to consider that the history of this country beckons for constant and considerable self-evaluation to be sure that the evils of our past are neither lingering nor creeping up on us again.

As we re-evaluate a system as important as the American legal system, we must assess if there remains too much leeway for human agents to condemn whom they choose and to safeguard others. The issue of potentially unfair use of legal discretion rises to the surface in cases of adjudicating excessive police force and in disproportionate incarcerations along racial lines.

The legal system could be postured to provide greater protection for white people through 'discretion.' A host of situations seem to substantiate this claim. To refer back to two recent cases that made national headlines, we can consider the cases of Michael Brown Jr. in Ferguson, MO, and Eric Garner in New York. While there are many issues to discuss in the Trayvon Martin Case in Florida, the Michael Brown Case in Missouri, and the Eric Garner Case in New York, the bottom line is that the American justice system appears bent toward racial injustice when three white police officers escaped trial after killing unarmed African American men and a neighborhood watchman, George Zimmerman, was not charged, until demanded by the public, when he killed an unarmed Trayvon Martin.

The American justice system affords biased human agents (i.e. prosecutors and jurors) to make judgments that reflect inconsistent determinations of probable cause. Thus, a system of "justice" fails to live out its namesake. It feels more like an "unjust" system. It has been said, "You can indict a ham sandwich." But in the cases of Brown and Garner, "probable cause" was not found, at the prosecutor's discretion, because of his ability to control the information brought before a grand jury.

Based on this apparent application of discretion, the poor and ethnic minority communities have not been afforded the equal protection that middle and upper class, mainly white communities enjoy. We must ask how many men of color (in particular) have been indicted who should not have been indicted? How man times have they been formally charged when they should not have been?

Time and time again in minority communities, "probable cause" yields a different outcome. The proverbial "ham sandwich" is easily indicted. Could it be that "racial cause" is implicitly applied under the guise of "probable cause," resulting highly questionable outcomes? Could it be that legal privilege is often afforded to whites?

Unequally applied "probable cause" looks clearly like "racial cause" to most in communities of color. It looks like probable cause has been exercised as an arm of racial injustice to protect the privileged class and harm others. When consistently applied, probable cause should be justly appropriated in all cases, irrespective of race, class, and/or privileges.

To a degree, we have identified and addressed "racial profiling" in this country. Now, I invite us to consider "racial cause" as defined by the racism felt in African American communities that have not been afforded equal protection, when prosecutorial discretion is involved.

Because the system seems postured to protect the privileged, the American legal system remains desensitized to its exercise of "racial cause" and excludes any constructive considerations of the cultural and systemic evils that many African Americans have experienced for many years. This is a fact that supersedes party-political polarities. It is a problem that, especially men of color, face daily. Former RNC Chair Michael Steele rightly summed up an African American perspective concerning legal injustice in his response to the grand jury's decision not to indict the officer who killed Garner. Steele points out: "Well, clearly a black man's life is not worth a ham sandwich when you put these stories together."

The application of "racial cause" epitomizes the feelings of unequal protection that has haunted African American communities for centuries, including during slavery, the Jim Crow era, and even today. Of all that has changed in this country, it is reasonable to question whether the legal system really continues to purport disproportionate legal protection.

If this assessment is true, the country needs radical systemic reform. A country that does not hold the protection of its citizens at its highest priority has lost its integrity. Legal injustice thwarts the essence of a nation's moral consciousness. National immorality on the basis of race and class over time will cause a nation of great potential to erode and collapse. It, therefore, becomes urgent that we think deeply and reassess the real issues and work quickly to fix a time-delayed impediment before our great nation self-destructs.

We must not ignore the protests after the Michael Brown, Jr.'s shooting and after the grand jury's decision not to indict the police officer in Brown's and Eric Garner's Cases. It is significant to note that these were expressed tipping points, eruptions of longstanding communal pain, resulting from unresolved attitudes toward perceived systemic injustice. Yet, the dominant voices of articulation have focused on the isolated cases.

We need to admit that the cases of Martin, Brown, and Garner (as significant as they are) serve only as tipping points. They do not prove the fullness of perceived systemic injustice. While the protestors march in the honor of Martin, Brown, Garner and others, the conversation should not be about whether Brown had his "Hands Up" or Garner said, "I Can't Breathe." There has been too much emphasis on the debatable details of the case that have distracted from the real issue of concern.

Without admitting that this has been a distracting focus, those who oppose the protests continue to latch on to any alleged misconduct on the part of the victims instead of focusing on compelling issues of systemic injustice that provide irrational vindication for killing three (and more) unarmed African American men.

In the vein of working hard to excel, I propose that a way forward also involves greater effort on the part of African Americans. While it should not be the case, we must fight in smart and creative ways. Burning down, and looting our own neighborhoods is not only self-destructive, but also is not a smart move to change the system. We must face it. A system that supports upper-middle class white people is a system that does not give the same people any reason to work to change it. Post Enlightenment, the Western world's cultures and systems have gravitated towards the "me," "myself," and "I" syndrome. When the Constitution speaks of "All men" being "created equal," it was a cultural statement that did not include blacks and women.

As long as the country continues to vote-in policy and lawmakers that have always been protected by that biased cultural perspective inculcated in the mind of the nation, we will delay racial healing. As long as ethic minorities take out their frustration by staying at home during election or making poor decisions that prohibit us from voting (i.e. committing felonies resulting in felony convictions), they will only see small glimmers of the hope that should be realized by now.

One African American president cannot make the difference that we need. The entire system needs representatives to speak-up for the voices of the marginalized. This is necessary for change. Thus, I also propose that white people, particularly white Bible believers, would confront white privilege to help to propel the country toward greater justice and compassion for the less privileged ethnic minorities.

For those of us in positions of power, Scripture teaches us to "Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy" (Proverbs 31:8-9). This should be the locus of the conversation and the context of the fight for systemic change for common good.

This column was co-authored by Norman Harris.