Subjectivity and the Evaporation of "Equal Justice"

-- By AustenBrandford - 13 Feb 2012

The Cyclical Outcomes of Subjectivity

Which means there's little reason to start from it in your essay, which is not supposed to be naive. Why not begin by stating an idea of yours, rather than by rejecting a straw man?

This is particularly apparent in criminal proceedings, during which the subjective perspectives of the fact-finders become most apparent, leading to particularly negative outcomes for the poor and oppressed.

You think it's the "subjective perspectives of the fact-finders" that is the primary source of "negative outcomes" (I think you'd have to mean injustices, rather than negative outcomes) for "poor and oppressed" people? "Fact-finders" are juries and judges. Do you actually think that they are deciding in a socially-biased fashion most or even many of the tiny number of cases that reach them for trial, after being selected by a prosecutorial system professionalized to discard cases in which there is apparent reasonable doubt, perfectly capable of resolving cases about which they are uncertain by offering favorable pleas? Of all the places in the criminal justice system to look for the source of systemically socially-biased outcomes, these actors don't seem to me the place to start.

It was said in class in the context of Jerome Frank’s article that “justice is a human thing” and that “power is very certain that it is just.” In any criminal case, the facts are subjective and the rules are illogical, leaving them open to a wide range of human determinations that eventually lead to the outcome. This outcome may not be just, but it will likely be the most pleasing to those given the power to make the determination.

First, Jerome Frank's point about fact-finding is that it introduces uncertainty, not predictable social bias. In any criminal case, the facts are facts. The evidence is either subjective or objective, depending on whether it is testimony or circumstances. To say that the rules are illogical is a sweeping statement of uncertain relevance. Whether rules are "logical" doesn't say anything about whether they produce justice, without a further demonstration that justice requires "logical" rules.

Given the demographic history and construction of the United States, it seems natural that this process is cyclical, creating more frequently negative outcomes for people who don’t fall within the majority and continuing that trend through generations.

That's not even a clear sequence of ideas, let alone one that can be called "natural." Are Jews, Koreans, atheists, short people or Tejanos "suffering through generations" "the more frequently negative outcomes of people who don't fall within the majority"?

In the criminal context, minorities and poor people are more likely to be convicted of a crime, which perpetuates a cycle that was likely initiated centuries ago.

You sure? Any evidence available? Any evidence available that they do worse in front of "fact-finders" as opposed to suffering arrest more frequently, or being more frequently prosecuted on more serious charges? On what not-so-subjective facts are you actually depending here?

Subjectivity and the Treatment of the Young Black Male

“When a poor man steals bread, we know he’s a thief.” This quote from class stuck with me because it seems to be the way in which poor people are treated by the subjective findings of US courts.

What's "subjective" about that? What does the word "subjective" mean?

However, I believe that this principle of “knowing” someone’s guilty status based on a piece of demographic data has extended beyond poverty and entered the arena of race relations.

What's the demographic data? When a poor man steals bread he is a thief, isn't he? Unless we're going to say that his social status excuses his action, his class has nothing to do with his guilt. It's people like me, who think that his social status is a justification for his action who are acting "subjectively," isn't that right?

Consider, for example, the young African American male. As a group, young black men in the United States are convicted of crimes and serve time behind bars at a percentage far beyond any other demographic in the country. Further, criminal behavior of young black men has been portrayed to countless consumers of music, film, television, and a variety of other media. It has gotten to the point that some may even argue that many young black men embrace this perception, which in turn leads them to more frequently engage in criminal behavior and relish in some level of pride by having spent time incarcerated.

Why resort to the shiftiness of "some may even argue"? If it's a conclusion you agree with, show why. If it's one you disagree with, you need not repeat it, because refuting it is not a necessary step in your argument.

Where did this begin and what effect does it have on the criminal justice system? I’d like to assert that this all began with the subjective fact-finding and determinations of people in power in the past and continues to affect fact-finders of today.

This now uses "fact-finding" in a new sense. Used strictly, as you were using it above, the assertion is facially implausible.

History and Contemporary Effects

Why start an important paragraph with such a jejune proposition? Isn't there a more salient idea you could put in this rhetorically important spot?

Along with the Emancipation Proclamation came the unfortunate realization for many ex-slaves that they were living a life of extreme inequality.

You think enslaved people didn't know they were living a life of extreme inequality before 1863? Do you really want to refer to this as an "unfortunate realization"? What nuance is that supposed to communicate.

Not only were they (for the most part) poor and uneducated, but also the more powerful, white members of society were holding them down with legislative and judicial measures. Even in the 20th century, black Americans were convicted of crimes as menial and undeserving

These words do not say what you mean.

as looking at a white woman, and potentially even sentenced to death for such an “offense.”

You don't mean "potentially," you mean "occasionally." You should edit your word choices more carefully in future drafts.

They were painted as criminals, treated as such, and forced to understand that this was the position that they were to occupy in society.

This appears to mean that the social treatment you describe was the only social activity defining the social roles of Black people. That's clearly false, and you want to find another way to say precisely what you mean, which is that this happened to the great mass of Black people, but (tellingly, because white supremacy is actually a functioning social system, not a comic-book villain) not all of them. Slave systems produce mostly degradation, hopelessness and pervasive brutalization, but also Epictetus, Diocletian, Frederick Douglass, Harriet Tubman.

This treatment, paired with the general disadvantages that the group has faced, has arguably led to internalizations of these sentiments and an increase in criminal behavior amongst young black men.

"Arguably" is a weasel word here. Your specific proposition here is that "general disadvantages" produce "internalization" of hostile social prejudices, leading to an increase in criminally deviant behavior. If you think that's true, give us some of your reason to believe. There are, after all, no shortage of social psychology and sociology sources to draw upon. If you don't think you can show this relationship, how can you later depend upon it?

However, as things like The Innocence Project and post-conviction DNA testing have gone to show, many of these perceived criminals are still wrongly accused and convicted of committing horrible crimes. This continuing tendency begins to prove that fact-finders over the years have created somewhat of a subjective bias against young African American men.

There's no logical connection between the statement "false convictions occur," which is the meaning of your first sentence, and the conclusion drawn by your second. Where is the evidence for the intermediate propositions, that false convictions more often occur in the cases of young black men, and that those convictions result from errors by "fact-finders"? When a jury is given the undisputed but inaccurate testimony of a crime lab technician, believes the evidence presented on the basis of a botched or incompetent investigation which is not challenged, and convicts on the absence of reasonable doubt, would you actually score that as "fact-finder bias" if the defendant is a young black man? How would you score it if the defendant is not a young black man? Your editorial review of your outline was insufficient here.

The cycle that began centuries ago with the criminal treatment and portrayal of African Americans has led not only to higher crime and poverty rates today, but also to an inclination for many to assume that an African American man on trial for a crime is definitely guilty.

You haven't given any basis for any of the assertions in this conclusion. The last assertion has no basis in any facts I know anything about, unless "many" means "a few people I don't actually know." That any proportion of the people serving on juries in our criminal courts feel this way is unestablished, so far as I know. Voir dire is designed and conducted to exclude people unwilling to hear and determine on the basis of evidence, and I believe it is somewhat effective for that purpose, on the basis of my own experience in courtrooms, and the data we get from post-trial interviews from jurors willing to talk. Jury deliberation functions pretty effectively, so far as we have studied it by interviewing jurors post-trial and impaneling mock juries, to mediate away the first inclinations of people who are inclined to vote automatically for one or another result.

But I'm more concerned, as a reader, with the general tenor of the argument than the evidence on any single point. So much is claimed here, and so little is demonstrated, or even specified, in support of what is claimed, that the reader is unlikely to take the conclusions seriously.

Conclusion and Solution (or lack thereof)

If the connections that I’ve drawn are accepted as true,

This is in effect a concession that there is no support given for your assertions. Either we accept them as true merely because you've stated them, or there's no here here.

then this could serve as a prime example of one of the many ways in which the unavoidable subjectivity of the legal system works against equal justice.

But this an assertion of an example, which is supposed to be a demonstration of a complex proposition? How could a compound conclusion like "the unavoidable subjectivity of the legal system works against equal justice" be demonstrated by an example, no matter how prime? We don't have a definition of "subjectivity," or a reason why its avoidable, or a definition of "equal justice" that would allow us to grasp why "subjectivity" works against it. A system in which accusation of any offense was immediately followed by decapitation would presumably much reduce "subjectivity" however you are defining it. But surely it would work against equal justice despite being completely equal? Recourse to social processes rather than supernatural ordeals or cleromancy to determine facts may produce "subjectivity," but how does casting lots or trial by battle increase equal justice?

The simple application of rules to facts does not explain why outcomes vary so widely.

How do you know? Facts are as diverse as outcomes, and rules are complex and uncertain. Do outcomes vary more widely than the diversity of factual settings multiplied by the uncertainty of the rules? How did you come to that conclusion?

Many things come into play, including the ways in which particular people are perceived by those making the decisions. It is for this reason that equal justice in our current system is simply impossible. As humans, we don’t have the capacity to remove years of formative experiences and associations from decisions that we make.

If that were the problem, why wouldn't requiring all crucial facts to be found by the unanimous decision of a large number of humans with different formative experiences and associations be a very useful curative mechanism?

Given the fact that this problem is based in the human condition, it will be very hard to resolve. Jerome Frank refers to the trial as somewhat of a ceremony, making it seem like an unnecessary song and dance that the courts do out of habit. However, getting rid of this process would also remove some of the perceived dignity attached to having your “day in court.” Maybe the subjective (and perhaps unintentional) prejudices will fade more with time, but chances are that new ones will develop. Perhaps equal justice is simply an unattainable goal.

Did we come all this way for some "maybes" and "perhapses" about which we are no wiser than we were at the outset? For this we were supposed to have accepted as true all the assertions made without substantiation in the course of getting here?

The most important step in improving this draft is to go back to the outline, and edit it unsparingly. What is the central idea you are contributing in the essay? How can it be stated clearly at the outset, illuminated and demonstrated in the body of the piece, and given to the reader in a final form that stimulates further intellectual effort by the reader in the conclusion? Each step in the argument that demonstrates the basis and the power of your idea should be an item in the outline. The connections linking the items, to their immediate predecessors and successors in sequence and to the argument as a whole, should be completely clear and specific. When the outline edit is complete, each sentence of the next draft should have been anticipated: each sentence's purpose is known; the A from which it starts, and the B to which it gets by way of the idea which is its content, should be clear to you. Then it's a matter of choosing the correct words, and as few as possible, to do the job each sentence has been given. Getting that process to work for you will not only make this a fine essay; it will pay you dividends in every piece of writing you do for the rest of your life.

*Draft 2* (I'd like to keep editing after another round of comments):

Dignity Through Defiance

The cul-de-sac on which my childhood home is situated has eight houses around its perimeter and a very wide variety of residents: one pastor, three interracial families, a single woman, two Jewish families, and a gay couple. Given the diversity and friendliness, my darker skin tone never led to feelings of inferiority or subordination. However, these feelings and the subsequent urge to lash out against everything that caused them could be found just a few minutes away.

Madison Park is a neighborhood in which some of the world’s wealthiest people reside. In the middle of the neighborhood on an enormous piece of lakeside property is the Seattle Tennis Club—a country club that was a summer hot spot for teenagers because we could lay poolside and charge drinks to their parents’ accounts. I went there once when I was 17 and I refuse to ever go back.

Almost every employee at the Seattle Tennis Club is black. Every single member of the club is white. Noticing this immediately rubbed me the wrong way and I felt like I should trade in my swimsuit and towel for a uniform and platter of hors d'oeuvres. What really got to me, however, was the way that the members looked at me. You have to be friends with a current member in order to get a spot on the club’s extensive waiting list. This is a very effective way for the club to explain the complete lack of diversity, as well as a very effective way to maintain it. When I walked by tables of people eating nicoise salads in my shorts and a tank top, they would realize that I was there to enjoy the club and not to work there. While some didn’t seem very bothered, others displayed facial expressions ranging from confusion to disgust.

I wasn’t going to just stand back and take that treatment. Instead, realizing that 1) these people already saw me as a low-life and 2) I would never be a member of the club anyway, I glared back at these people with my very best non-verbal “fuck you.” Then I started to disrespect the club’s rules, taking a glass into the pool, “horseplaying,” and eventually being told that if I did anything else out of line I would be asked to leave. I removed myself from the club soon after.

I’ll never go back because I hate what that environment did to me. Not only did I reaffirm what these people expected from someone “like me,” but also I acted in a way of defiance and disrespect that is completely out of character. I generally respect rules and order, but feeling like a disrespected, worthless outsider who would never be welcomed into their ranks made me truly not give a damn about their rules and customs. It was a way for me to try to protect my dignity, but it backfired and I walked out feeling like I deserved to be mistreated. Luckily, I can simply avoid places like that. They belong to the very upper crust and elitist portion of society, which is a small (albeit powerful) group.

This experience made me realize that I have been very fortunate and extremely sheltered. There are many people in this country with a similar skin tone to mine who feel this way every day. They feel like institutions like education and the legal system work against them. They push back in ways that others may see as defiance, but they are really just trying to maintain some pride in systems that they think screwed them over from the start. The effects of this, like lower education and higher crime rates, are obviously harmful and perpetuate the problem. However, while I could just get in my car and drive back to the safety of my cul-de-sac, many more people are stuck in a cycle that goes far beyond the confines of a waterfront country club.