Doing Justice

By Sarah J Hart

It’s a bright winter morning, sunlight pouring in from the east, and I am in a van on my way to jail. We’ve just crossed from Manhattan into the Bronx and are heading north on a wide boulevard. We pass a long line of elegant limestone row houses getting a face-full of morning sun, like princesses just waking, and pause at a light. Next to us looms an imposing edifice – one of those regal government buildings with soaring columns and broad white flanks – an architecture meant to encourage staunch confidence in, even reverence for, the civilizing forces of knowledge and reason. Letters carved on its smooth white side stand out crisply in the morning light:

“GOVERNMENT IS CONTRIVANCE OF HUMAN WISDOM TO PROVIDE FOR ALL HUMAN WANTS. MAN MUST HAVE A RIGHT THAT THESE WANTS SHOULD BE PROVIDED FOR BY THIS WISDOM”
Technically speaking, we are not on our way to jail, but to the court pens, which is where you go directly after arrest.

I am not, however, under arrest.

The van I’m in belongs to the Correctional Association of New York, a nonprofit organization that was founded in 1844 and granted unique authority to inspect conditions in prisons and jails. The CA’s mission is to “shine a spotlight in the dark corners of the prison system, counter debilitating conditions, and promote effective prison programs.” It does not have punitive power; what changes it wants to see implemented it must coax and convince into place. The CA staff negotiate a balance between working with the Criminal Justice System, without whose cooperation their work is impossible, and pushing against it, appealing sometimes to logic and sometimes to emotion and occasionally to the potential threat of press exposure.

We pull into an alley alongside a large, blank-walled building and climb out of the idling van. We’re ushered in through an inconspicuous door to a narrow hallway squeezed by bulletproof glass. After a pat down we file into a room with a reception desk in the middle where some officers are gathered. The mood seems relaxed and jovial – someone was just telling a joke – and they nod to us welcomingly. The walls of this room are cluttered with signs and notices. “You Too Can Prevent Suicide,” says one. Another illustrates how to hold your hands to avoid injury from hand cuffs. Every sign is in Spanish as well as English except for one, which is maybe Russian (regretfully, I have no idea). There’s also a canvas of abstract art hanging in one corner and someone has gone to some pains with holiday decorations, including covering the doors with metallic green paper, in the aspect of presents. It is through one of these doors that we are led next, into a room much bleaker.

This first chamber has four cells. Each is about nine feet wide and long, with concrete floors and a bench running around three of sides. The cells are similar to the cages that used to be common in zoos before open enclosures meant to evoke natural habitat became popular. In one corner of each cell there’s a small toilet with a low barrier around it, high enough to obscure a user up to about his or her shoulders. Three of the cells are empty, and in the other there’s a young man in a blue sweatshirt slumped against the wall. I have never seen a person behind bars before and my first instinct is to drop my gaze, lest I embarrass him.

The CA staff do their job efficiently and thoroughly. At each floor they spread out among the occupied cells, ask an officer to open them, and step in. They inspect the plumbing, check if the phones work (one of their most significant accomplishments was seeing through a policy that each cell be equipped with a free phone so that detainees could make calls – assuming they have any numbers memorized)  and question those inside. “How long have you been here?” (“72 hours!) “Did you receive food?” (“Yeah but I think my milk was bad.” “And they didn’t give us spoons”); were mats offered?; was there drinking water? had the phone been available?; and so forth.
Most of the cells have between nine and twelve people in them. In one, a group of girls who look barely in their teens, though they reassure us they are older, are resigned and calm while their cellmate emits a loud stream of semi-intelligible protests (“She’s been doing that all night”). Some people try to explain their cases to us (“It wasn’t us. It was the people next to us that was making the commotion. But when the cops came, they ran away, and the cops took us instead.”); some people are chatty and eager to register complaints; a few are outraged; some smell unwashed; some are clearly sleeping off drugs or drink. There’s one man in a still-crisp suit with a lavender shirt and nice wool coat. He is standing in the middle of the cell with an expression of mild displeasure, as if he was just waiting for a bus, and is a bit surprised to find the station so unpleasant.

But most of those behind bars just look thoroughly worn out. They sag on the benches or sprawl on the bare floors (mats, it seems, are not distributed as readily as they should be in the Bronx Court Pens). Some cover their heads with their coats, others stare blankly ahead, faces as drained as boiled cabbage. I imagine being in there, cramped with strangers, crushed by a boredom or discomfort so oppressive that even to sleep on bare cement would seem appealing, just for the oblivion it offered.

When we toured the Bronx Court Pens it was the middle of the week and about 11 a.m. At that time there were 172 people detained and every single one was either black or brown.

At the court pens stage of the justice system you are technically guilty of nothing more than attracting police attention to an activity that the police, at their discretion, deem worthy of arrest. One of the CA staff tells me that 75 percent of those arrested are released directly after their 24(ish) hours in the pens. Which is to say that, although to be arrested is to elicit treatment that is at best demeaning, the reasons that account for most people’s arrest are subsequently found to have no further legal clout. Nonetheless, this is the mouth of the legal system. The beast has snapped you up and closed its chipped metal teeth. You potentially face a long grind through the criminal justice track – a process that chews up more people in the U.S. than in any other developed country. And of those who are swallowed up, a vastly disproportionate number are people of color from poor communities.

The statistics: In the United States, black people comprise only 12.6 percent of the population (2010 census), but 39.4 percent of the prison and jail population – and that number would be even higher if it included blacks who identify as Hispanic instead. Although drug use and drug dealing are equal across black / white racial lines, black people are six times more likely to be arrested for, and eleven times more likely to be imprisoned, for drug offenses.

Earlier in the year I’d served on jury duty for the first time and as I learned what that role entailed, I became deeply impressed by the beautiful architecture of our system of justice. Jury duty asks of its participants a certain nobility – that jurors will be thoughtful, level-headed, honest and fair – and it grants a certain dignity – each unique opinion is of equal merit and value as the next. The beauty of the system is in its egalitarianism – as such it not only can survive, but is indeed honed and strengthened  by, diversity. The only uniformity required in those selected to serve is in their honorable participation. And the system assumes people can and will rise to that challenge.

I was swiftly impressed by how well founded – at least for our group – that assumption proved to be. We were as random a mix as if a subway car barreling through downtown Brooklyn had accidentally disgorged directly into the court room and because we were a Grand Jury (the purpose of which is to protect people from the calumny of frivolous charges and protect the court system from use as a tool of malice or manipulation) we heard about 50 cases. Most of the jurors were attentive throughout and seemingly no indictment or dismissal was arrived at without sincere consideration.

Towards the middle of our duty we heard the case of a man wanting to prosecute his sister and several of her sons. One of the young men facing charges came in to give his side of the story. He explained the logic that had led to the situation – how his unsavory uncle had long overstayed his welcome, how he’d helped himself to things that were not his, how the tension had escalated eventually into a fight, and how family loyalty had brought the siblings together in defense of their mother. But it was the uncle who had called the cops, and so now it was the uncle who had the advantage. The prosecuting DA completely failed to stir our sympathy for this supposedly wronged uncle, but the uncle’s transgressions, whatever they might have been, where, we were stringently reminded, legally irrelevant. It was the actions of the young man – a high school senior – that we were called upon to evaluate – and we were to do so not according to his logic, but that of the law. The young man replied to the fumbling DA’s sterile, legally ornate questions with an incredulity that bordered on contempt – but he was not without fear. Some of the charges levied against him bore potentially serious penalties.

When it came time to vote most of us were deeply uncomfortable. “This is a family dispute, it shouldn’t even be in the court system,” one juror said sorrowfully. Many of us, it seemed, felt that the exercise of our reason, judgment, and conscious were being somehow curtailed by the very system that requested it of us. What we were about to did not really feel like justice at all.

One juror, however, felt quite differently. He wanted indictment on every charge. And this juror happened to be, when not living his civilian life, a cop. Thus far he’d been a jolly and irreverent addition, always punctual and always cracking jokes, and useful in explaining the fine differences between degrees of charges. But now many of the other jurors looked at him in near disgust. How could he be so inhumane?

Later, he shared his thoughts. It was strange, he said, to be on this side of the jury, experiencing the system from a civilian’s perspective. He was amazed by our eagerness to let people go. He shook his head. “You know, they’re just going to do it again,” he said. “These are not good characters. I know these guys – I deal with them every day. You give them another chance, they’ll do it again – or maybe worse next time.”


This then is the meat of the matter – a part of the explanation for how in this country we have simultaneously a justice system exquisitely designed for fairness, and incarceration practices that are anything but that.

Many scholars have illuminated the foul play in the incarceration industry (Michele Alexander’s book The New Jim Crow: Incarceration in the Age of Colorblindness comes highly recommended): how much money prisons and imprisoned people generate for certain populations (not the same populations statistically most likely to also be imprisoned);  the ugly benefits some receive from having a huge proportion of poor and minority communities stripped of citizens’ rights (in many states a felony on your record means a permanent ban from voting, many jobs, and many social services); the crippling impact of certain sentencing laws; and how quota systems and other practices encourage police to arrest in populations where they are least likely to meet legal resistance.

The justice system depends, at both the level of jury and police, on individuals make judgments based on information tempered by their personal wisdom – that is, their knowledge of and understanding of the world. That our experiences shape our point of view is assumed. But what the system does not account for is the extent to which our point of view in fact pre-conditions our experiences. Was the cop on our jury guilty of seeing the criminal before the crime? Or were the rest of us just tremendously naïve?  The jury system expects the best of people. Police practice expects the worst. And the consequences of both are very real.

Our judicial system is deeply flawed in practice but this is not only because of invidious policies enacted from the top.  The beauty of the system is also its weakness. It elevates and respects the judgments of individuals, but if we individuals fail to recognize the limits of our judgments –fail to evaluate the boundaries of and critically assess the forces that shape our experiences and interpretations, then we risk supporting a system which, with better information and full rights to exercise reason and wisdom, we might in fact chose to indict.




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