Race, Legitimacy, and Criminal Law

Why haven’t foundations addressed the intersection of race and criminal law? Is it because there’s a sense among grantmakers that some of these problems operate on too large a scale? Is it because the problems themselves are intractable? Is it because individuals who commit crimes—especially persons of color—are seen as somewhat blameworthy by foundations and, perhaps, not worthy of foundation resources? Perhaps the same political economy that perpetuates criminal environments also operates within foundations to redirect money away from this issue, which disproportionately affects people of color.

We heard a lot about the George Bush versus Al Gore 2000 presidential election, when African Americans were systematically disenfranchised from their voting rights, as a crisis of legitimacy. But questions of legitimacy and the law certainly didn’t start with this election. The General Social Survey shows that over the last quarter-century there has been a persistently wide gap in the levels of trust that nonwhite Americans express toward the legal system. Distrust of criminal law is particularly strong, but that lack of faith also encompasses various other aspects of the law, including the civil law. More than one-third of citizens polled said they had little confidence in the police. More than half of the African Americans polled claimed this. The same gap exists with regard to courts.

The Law and Legitimacy

Citizens’ experiences with police and the courts shape their perceptions of the legitimacy of the relationship between individuals and society. When legal institutions fail to achieve legitimacy, the moral foundations of the institutions and the law itself become suspect, and citizens withdraw from them. A lack of confidence in criminal and legal institutions may be more important than a lack of confidence in political, social, or other institutions. The law is a critical meeting point between citizens and accepted social norms, learned by each individual early in childhood. The law reflects the values of the dominant culture and of the state. If it is implemented unfairly, the perception of an unfair state grows and is internalized by its citizens. So the way in which people experience the law, and particularly the way that minorities experience the law, plays an important role in whether and how they participate in the various forms of social regulation and social control.

There are many reasons why foundations and their leaders should listen carefully to both the white and minority communities about their discomfort with the law. Frustration with the uneven application of criminal law erodes its legitimacy and undermines the consent of the governed to the rule of law. If you take away that legitimacy, you take away the incentives for people to interact with the law, to help secure their own neighborhoods, and to comply with legal and social norms in their everyday lives.

The twin crises—race-based policing and the failure to protect citizens from crime—motivate either withdrawal from social regulation or opposition to the law and underlying social norms.

Although the dynamics of legitimacy apply to both whites and people of color, for minorities the experience of the law is very different. Those of us living in New York City know about the problems associated with racialized policing, which is not only illegal but poses legal and social threats to people of color. Under the recent policies of the New York City Police Department, aggressive stops and searches have been disproportionately aimed at nonwhite citizens, far outpacing their actual involvement in crime. The deaths of two young Black men shot down by police, Amadou Diallo and Patrick Dorismond, were, in part, a byproduct of those tactics. That kind of race-based policing, combined with racial imbalances in incarceration, has only deepened the racial divide between citizens and breached minorities’ faith in the law and legal institutions. Uneven enforcement of drug laws adversely and disproportionately affects persons of color. At the same time, in both white and nonwhite communities, the police have failed to adequately protect residents.

These twin crises—race-based policing and the failure to protect citizens from crime—motivate either withdrawal from social regulation or opposition to the law and underlying social norms. In 1997, in The New Yorker, Jeffrey Rosen described the dynamic of “jury nullification” by citizens in the District of Columbia. According to him, when called to jury duty for drug trials, citizens—suspicious of laws and the legal actors who enforce them—voted “not guilty” regardless of the facts of the case. Such acts of withdrawal and resistance are not healthy for democracy and are corrosive to the rule of law.

Yet there is a window of opportunity here for foundations to help reverse the growing cynicism in communities of color toward criminal law and toward social regulation more generally. Citizens’ interactions with legal institutions can be structured to produce legitimacy, to neutralize adverse reactions to law and legal actors, and to encourage them to participate in social control. The proposition comes from a fairly normative, race-neutral perspective, but it applies to both white and nonwhite communities. The legitimacy of criminal law is strengthened when its legal actors and institutions act in ways that citizens perceive as consistent with popular principles of fairness, security, and proportionality.

The Challenge to Philanthropy

The challenge to philanthropy is to capture, in a conceptual framework, the processes that build legitimacy. How can legal actors and the law earn credibility? What can foundations do to carry out these ideas? In Boston, the complex relationship between the black clergy’s Ten Point Coalition, the city’s legal institutions, and the research community has generated support for some of the heavy-handed tactics used by police and probation agencies to stop an epidemic of youth gun homicide among the city’s gangs. Operation Cease Fire was a research-driven effort to identify not only where the problems exist but who the bad actors were. What differentiated Cease Fire from other efforts across the country was the reciprocity and coordination between the clergy, legal institutions and actors, and researchers. The moral authority of the community was expressed through voices of the clergy. But the clergy were also tough, if not tougher than the police. They basically said, “We love you. We want you to survive. We want you to do well. But if you step out of line we’re going to throw you in jail faster than you can blink.” Coming from a police officer, that message would have no moral authority. But coming from the clergy, it did.

New York City has had quite the opposite experience. Not only was its strategy to reduce crime racially charged and racially disproportionate, not only did it result in fatalities, but it cynically compromised the idea of a research-driven strategy. The police used detailed data to pinpoint where the bad locations and dangerous places were; what times of day were most dangerous; and even, to some extent, who the offenders were. But they never shared that information with the affected communities. They never engaged in the process of building a strategy with citizens in the community that could morally legitimize what their actions were. As a result, the police minimized community input. By not sharing the research base, they lost the chance to launch an interactive democratic process that could have validated their efforts with citizens who would be affected most by their policies.

Chicago has had two contrasting experiences with citizen involvement in policing youth violence problems. The controversial example was the gang loitering ordinance that was passed in 1992 and was in effect until a federal court order ended it in late 1999. The ordinance provided law enforcement with new tools to aggressively disrupt street-level gang organizations. Citing support and approval from segments of the community to use strong measures against street gangs, Chicago police implemented the ordinance. They operated in specific neighborhoods by preemptively interdicting groups of street-gang members meeting on street corners. The policy—not unlike the aggressive stop-and-frisk policies implemented by the police in New York—resulted in more than 40,000 arrests of young African-American and Latino males for loitering and minor offenses. Missing from that process was a dynamic exchange among citizens, community, and police that would communicate and reinforce moral authority, popular consent, and legitimacy within the community.

Philanthropy can advance the process of building trust between citizens and legal actors, with important effects on democracy for communities that often are left behind or even hurt by the institutions of criminal law.

The Chicago Community Policing Program offered a different experience of citizen involvement in criminal law and justice. The program was built on a process in which data about crime and policing were widely shared with citizen groups to help them plan strategies to reduce crime. Despite some unevenness in implementation across the police districts, the interaction of citizens and police allows everyone to agree on what the problems are and what kinds of actions might be appropriate to solve them.

Foundations can look to programs like this one in Chicago and Cease Fire in Boston for lessons on how strong citizen input can help solve recurring crimes. Legitimacy accrues when citizens interact with legal actors on research or data-driven facts that everyone can agree on. But it is more than the introduction of objective knowledge that can transform a process into new forms of democratic deliberation. The way the facts are compiled; the degree of citizen participation in data collection and analysis; what questions are asked; what data elements are collected; who sets the research agenda; and who owns and controls the analysis of the data are all questions that need to be answered in order to build trust.

Designing structures that communicate the reality of legitimacy concerns as regards the criminal justice system and that form new methods of interaction between citizens and legal actors is a potentially important means of building trust. These dynamic exchanges can rearrange institutional relationships to develop new types of deliberative democratic forums. Philanthropy can advance these processes, with important effects on democracy for communities that are often left behind or even hurt by the institutions of criminal law.