Berkeley Conversations: Race & the criminal justice system

July 28, 2020
By: Andrew Cohen, Berkeley Law

Video: Berkeley Conversations: Race and the Criminal Justice System

As America reckons with how racial inequities permeate its core institutions, one such institution stands above — or below — the rest: the criminal justice system.

During a livestreamed Berkeley Conversations event Monday, four UC Berkeley professors examined the system’s inextricable links to race and agreed that meaningful reforms must acknowledge that reality.

African American Studies professor Nikki Jones said police regularly act “as co-constructors of violence,” fomenting aggression through communities of color. Citing research showing how police use explicit biases, and euphemisms such as “nice people” and “normal families” to describe white people, she said that fuels a more benevolent form of policing in white communities compared to other areas.

“Do we have a criminal justice system infected by racism, or do we have a system that is doing exactly what it’s intended to do, which is to protect economic interests and to uphold white supremacy?” Jones asked. “And do we have a system that’s doing that right now with shocking efficiency?”

Sociology professor Armando Lara-Millan described how, in white communities, police act more as service providers than as a criminal justice agency — not arresting anyone if a neighborhood party gets too wild, shrugging off abuse of pharmaceuticals and checking on people’s homes while they’re away.

“This is the world of disputes, problems and wrongdoing that never turns into crime,” he said. By contrast, Lara-Millan said, ethnic minority areas receive “an aggressive style of policing, where any conversation with a cop will result in some kind of criminal interaction. … Police, the courts and prisons are racializing organizations (that are) teaching political lessons about what it means to be a person of color, or what it means to be white.”

Berkeley Law professor Elisabeth Semel, who directs the school’s Death Penalty Clinic, said that capital punishment and its disproportionate impact on people of color flowed from slavery. She described how Virginia had one crime for which a white person could be executed, compared to 66 crimes for a slave.

“Lynchings created the climate that maintained racial subjugation,” said Semel, noting that African Americans make up 42% of people on death row, but only 13% of the U.S. population, and that in 75% of the executions since 1976 the victims were white. “Along the capital punishment continuum, there are decision-making points in the system. … What prosecutors do is particularly important, because it’s discretional and, for the most part, judicially unreviewable.”

Berkeley Law professor Jonathan Simon discussed how policymakers “tried to fit every problem they could into the criminal justice box.” He said that the long push to extract racism while keeping the criminal state hasn’t worked, shrinking the carceral state is essential and academia has largely failed to teach about criminal law under slavery.

“How many of us knew, for instance, that in California until the 1870s, African Americans, Native Americans and, eventually, Chinese Americans could not even testify in a criminal court against a white person, which essentially immunized murder — the main crime we teach in criminal law — on the basis of race?” Simon asked.