Letter from Los Angeles — Part Three
[Sam Pillsbury is a Professor of Law at Loyola Law School, in Los Angeles. He teaches criminal law, criminal practice, and American legal history. This is the third of a series of excerpts from his stunningly human and moving new book, “Imagining a Greater Justice: Criminal Violence, Punishment and Relational Justice” (Routledge 2019), which he has generously contributed to this blog. The full text is available at the publisher’s link, here.]
From Chapter Eleven: Living a Larger Justice
Coming now to the end of this work on criminal violence and criminal justice in America, a reform-minded reader might expect to find a set of rules and policy prescriptions. So many problems have been detailed and so many calls to change have been issued, that a reader might anticipate a prospectus for new laws and institutional structures, new resources and, very likely, a transformed politics at this, the book’s close. That’s usually the payoff from works on contemporary social problems.
But the truth is that we do not lack for good policy ideas in criminal justice. We do not lack for resources, either—if we are willing to engage in some resource redistribution. What we lack is the will to change.
Many Americans do not see the need for criminal justice reform because they do not see the many victims of wrongful violence and their pain. Nor do they see the many people treated unjustly by the criminal justice system today. Both groups are numerous, and quite visible—if we care to see them. We readily recognize victims of violence in headline cases; others, who comprise the vast majority of victims, not so much.
Most Americans do not appreciate how much past violence affects the present lives of those they know. I think of participants in church groups I have led on the topic of violence, and the stories of childhood abuse, sexual and otherwise, and domestic violence, that they have told. These have been mostly white, middle-class older women. They would not normally speak of these past events, because who wants to hear about them? And telling may feel shameful. It is usually painful. I think of women, young and old, who felt personally violated by the election of a man who had boasted of being able to grab women between the legs and get away with it. A friend blurted out to me in conversation weeks after the election that she was nearly suicidal at his triumph, because he reminded her so much of her abusive first husband. The past living on in the present.
As for system injustices, to many these are mostly abstract propositions, hard to make sense of. When undeniable injustices occur, such as the exoneration of a long-term prisoner, this is seen as exceptional. The casual, ordinary unfairness of a bureaucratic system that largely assumes the guilt of those caught up in its nets goes unseen. Most do not know about the men I meet in jail, some never arrested before, some arrested many times before, who are treated in ways that I never would be, because I do not look like the usual suspect, do not have priors, and because I have money and connections. If I ever broke the law, I could appeal for mercy and expect to be heard; they mostly cannot.
In this final chapter, I turn from big justice questions to small, from the macro to the micro. I turn from justice seen from a great height, to justice at ground level. I suggest how a commitment to a greater justice might change how we live, whether we are criminal justice professionals or just regular citizens.
Advice for Doing Justice
Philosophers of the classical world placed character at the center of their study of morals and ethics. Rather than seeking general rules for right and wrong conduct, they explored the virtues and vices—the character traits—that inspire right and wrong actions. Despite my frequent criticism of character-based judgment (all that good guys versus bad guys stuff), this approach is very apt for addressing what it takes for an individual to do justice.
Begging the reader’s indulgence, I will here play teacher (or preacher), and address directly those who may want to do criminal justice work and then everyone else who must make justice calls, which really does mean everyone else.
To the Criminal Justice Professional
No matter what your job, criminal justice work will test your character. It’s hard to figure out at the beginning what to do and it’s hard to do, day after day, after you have figured it out. I see four character traits as essential to doing justice: courage, humility, faith in justice and care for the hurt.
Courage
To do well and to do right in criminal justice takes courage. Occasionally this means physical courage, especially for those on the front lines of law enforcement. Peace officers must be willing to take physical risks to protect the public. They must also make sound judgments in the face of danger. The willingness to risk life or limb does not have much value unless one can also think clearly in the face of danger.
But in today’s criminal justice world, moral courage is more often tested than physical courage. This means being willing to follow your best judgment, even when that may open you to criticism by colleagues, superiors and the public. I am not talking here about disobeying a direct order or violating the law. I am speaking about the courage to make the right decision when the decision lies within your discretion. Can you make what you feel is the right call, even when it’s not the safe call for your career? This includes making tough calls yourself rather than just passing them on to others.
You will need social courage to admit wrong when you have done wrong. And you will mess up. You will do wrong. It’s a question of when, not if. When it happens, will you have the courage to admit the wrong to yourself and to the world, or will you deny wrongdoing in hopes that you will not be called out on it?
Finally you will need courage to engage the world’s pain. The civil rights lawyer Bryan Stevenson talks about the need to get “proximate” to people in trouble. He says that you have to get close to people suffering to understand what justice requires. Imagine being a patrol officer who encounters a woman recently assaulted who is also homeless and mentally ill. She is difficult to look at, she smells, and she is ornery, volatile. The question is whether you as a police officer will take the time to hear her story, not just in words but in spirit.
But this is not just about police officers. Perhaps you have chosen work as a criminal defense attorney and now must meet a new client in lockup. Even though pressed for time, will you listen to this man not just for the basic facts of the case but hear him on his life situation, understanding that he is terrified and cannot trust you until he sees you care for him as a person? Will you the prosecutor keep the traumatized victim witness at a distance, the better to manage the relationship, or will you allow yourself to feel a little of her pain? Will you understand that you may have to explain important legal points to her, again and again, because when triggered, trauma severely burdens the mind?
Getting close to the hurt takes emotional courage because once you get close you will feel echoes of their pain inside you. And when you go on your way, some of that person’s pain will come with you.
Humility
Despite what we see in the news and thrill to in crime dramas, justice does not often require heroes. There is a time and place for heroes of course. We love hearing about the lone brave individual, who against daunting odds, through sacrifice and courage, brings down evildoers. And yet aspiring to the heroic in justice work should be discouraged. The problem is not with heroic action, but with heroic aspiration. The problem is with believing that you can, or must make justice happen by yourself.
In police work, pursuing hero status can physically endanger others. The officer who charges into a hazardous situation without backup or a considered plan can put many at risk. More often in justice work, the danger of taking on too much is more moral than physical. (Note the similarity here to courage.) We need humility to recognize individual limits in power and judgment.
Many go into criminal justice with a determination to make a difference. And this can be a worthy goal, if combined with the understanding that success always depends on others. If the professional decides that she, personally, must make the difference, then she takes on an impossible burden, though. Sooner or later the hero-professional’s ambition will lead to a disregard for legal and moral checks on the use of power, or to despair.
I think of those in law enforcement who believe that they represent the line dividing the good from the bad in society, and that they must everywhere and always, protect the good and punish the bad. Taking on the moral—and physical—weight of the moral world leads to frustration when the professional sees all the obstacles put in his way, political, legal and bureaucratic. A young defense attorney determined to right the social wrongs of the world by zealous representation of the marginal will run into similar obstacles. Humility in justice work means that you judge yourself not on outcomes, which you cannot control, but on the effort made, which you can.
And finally you will need humility to protect against the temptations of moral arrogance. Especially if you are a police officer, prosecutor or judge, you may come to see it as your job not just to assess guilt or innocence on criminal charges, but to judge the value of other people’s lives. To decide who is fundamentally criminal, and who is not. To separate the good from the bad. I do not have to say (having said it so often before) why this is a mistake. You need moral humility to understand what you can and cannot judge, meaning why it is so important to judge the rightness and wrongness of actions rather than lives.
Faith in Justice
Do you believe in justice, really? Will you believe in justice and not just in doing your job after three years, five years, ten years in the field, when so many around you settle for less? When they settle for much less? Faith in justice shows in the perseverance and determination of the best. Its lack shows in the weariness and frustration of those who have burned out.
Faith in justice means a belief that doing justice is possible. It requires faith in human good and in human systems. This can be hard to come by when every day reminds you of the human capacity for evil and the mindlessness of bureaucratic systems.
The great enemy of faith in justice is the System. The System has its own rules and demands, often unwritten but still powerful. These may appear as the accepted norms of the section, department, courtroom, or courthouse where you work. Just to let you know, that’s not how we do things here. This is what everybody does. Just do it that way and you won’t have any trouble. Warnings like these given to newcomers need to be taken seriously, because system rules can never be blithely ignored. Every day, the system casually crushes clueless individuals who are ignorant or disrespectful of its unwritten rules. But system rules are not justice rules. System rules are about efficiency and conflict avoidance and individual and group self-protection. Keeping faith in justice means keeping your own values and not taking system rules to heart. You need your own internal rules for when to go along with the system and when to refuse. Sometimes the defense attorney must make the pretrial motion in a misdemeanor case that no one in the courthouse ever does and that the judge thinks is a waste of her time, but may be critical to a just outcome in the case. Sometimes the prosecutor must object to a routine request for a continuance that is normally agreed to as a matter of course, because the victim simply cannot wait any longer for legal resolution. Sometimes the police officer must refuse to cover for a partner or colleague who may have broken the rules.
Faith in justice must be a personal faith; it cannot depend on the opinion of others. It cannot depend on case results. It is grown and sustained by relationships with a handful of people whose character you trust. Their support will keep you going in the difficult times, and there will be plenty of these.
Care for the Hurt
A psychologist and priest that I know in South Los Angeles, Stan Bosch, regularly brings together police officers and gang intervention workers to improve relations between them. Each group plays an important role in fighting gang violence in one of the most violent parts of the city. Each has reasons to distrust the other. (The gang intervention workers are mostly former gang members.) Bosch begins these meetings with a question: “What brought you to this work?” The answers usually involve concern for the hurt. The original concern might be for victims of crime or for those growing up in the neighborhood, but caring for others is common to all.
In criminal justice work, the challenge is to expand and not contract your circle of care. The adversarial system pulls powerfully in the opposite direction, toward a smaller us and a larger them. A greater justice will require police officers to see the humanity of gang members and at risk youth, despite the havoc that some kids wreak on the community; it will require former gang members who have suffered and seen others suffer greatly at the hands of police, to see the humanity of men and women in blue.
It’s hard to have a big heart in criminal justice work, for it will be regularly broken. People will disappoint you. Institutions will disappoint you. The law will let you down. Your trust will be betrayed. And yet there is no substitute for caring. You might be able to do your job without it, you may be able to follow the rules, written and unwritten, without it, but I do not believe you can do justice for long without it.
To Everyone Else
People who work in criminal justice naturally think that they know a lot about it. Certainly they believe that they have special knowledge and skills that members of the public do not. Police officers believe this and so do corrections officers. Prosecutors and criminal defense attorneys believe this, even though their understandings often take them to opposite conclusions. Judges in the criminal courtroom believe this and so do professors of criminal law and professors of criminal justice. And why not? Given all the training and education each has, given all their experience, surely these folks have a solid claim to expertise in criminal justice. Each knows important things that the public does not. As a result, each will seek to persuade the public that their knowledge and their experience should guide. Each will want to tell the less knowledgeable members of the public what to think and believe.
And yet there are no experts on justice. Justice is too personal for that. There are experts on criminal law, on policing and adjudication, on patterns of crime and the effects of punishment, on interactions between mental health and substance abuse and crime and much more. Moral and political philosophers may have thought more deeply and broadly than the rest of us about principles of justice. But doing justice depends on our personal—and collective—vision of right and wrong. While experts may provide important data and insights, the final conception of justice in a democracy is the work of ordinary citizens. And so I offer some words now, not for criminal justice professionals, but for everyone else.
Emotional Self-Awareness: Interrogate the Gut
Each of us has our own sense of right and wrong, of justice. When asked to respond to potential wrongdoing we usually begin with intuition, meaning a gut feeling. This initial sense of rightness or wrongness is emotional. Our feelings about justice need to be taken seriously, but also to be interrogated. Like every other human faculty, our emotions are fallible. They may arise from faulty data or personal needs; they may come from personal experiences quite different from the situation judged. This means we need to question our justice feelings, regardless of their strength. Is this fear that I feel, is this anger—even rage—that I experience, justified? Have I looked closely enough at the facts to see if there is anything that might contradict my initial assessment? Have I considered what in my background or makeup might contribute to this emotional response? How do I see myself in all this? Am I willing to reconsider my feelings, or am I determined to hold fast to my first, emotional, judgment?
Police are often criticized for jumping to conclusions in their investigations and then refusing to consider alternative explanations. If the public must make justice decisions—and in a democracy it must, frequently—then members of the public must also avoid premature conclusions and refusals to reconsider.
Proximity: Stepping Closer to the Other
We all believe that our personal experiences reveal larger truths about Life. What we have felt and seen and heard in our lives, the conclusions that we have drawn from our experiences, these must apply to everyone. Let me tell you about what I learned growing up. Or, this is what I believe, based on everything I’ve been through. We assume that our experience reveals the principles by which the whole world works, or should work. In the process it’s easy to miss the limitations of our personal experience.
In fact, even if we occupy the same proximate space, oftentimes we live in different worlds. Differences in age and class and race and gender, of region and national origin—lead to different understandings of the human condition. These differences need to be respected and not dismissed or derided. Only by respecting differences in experience can we see others as they are and not as who we imagine them to be, or how we think they should be.
Recognizing difference should not prevent belonging, however. Given that belonging is a central goal of a greater justice, being critical to both violence prevention and healing from its wounds, we need to think hard about our own views about who is in and who is out. Who do you feel belongs in your community? Who does not? Can you defend those exclusions? Do you understand the consequences of those exclusions? Can you find a way to welcome those most prone to exclusion and self-isolation, who live on the margins? The only way I know to manage this is gradually: take one step closer, and then another. We need to get steadily more proximate.
Just as criminal justice professionals must get close to the hurt to do justice, so must we as citizens. Many will resist. I have my own life to lead, thank you very much. I’m not putting myself or loved ones at risk. I have other priorities in work and life. To which I say fine—I do not ask that much. Just consider taking one step closer to the other, in mind or spirit or body. Wherever you find yourself, try to take one step closer to those who seem most foreign to you, whose hurt is important to justice. Pay attention to news items that concern them. Watch the television shows that tell their stories. Walk in a neighborhood different than your own, eat at a restaurant with a different clientele. In line for an event, for a plane, for a bus, strike up a conversation with the sort of person you would normally avoid. One step at a time. You will find that you feel less isolated. You will start to feel that you belong to a bigger community. These moves may not seem justice-related, but changing who we connect with can change how we judge right and wrong. As we have seen, time and again.