As movements to defund and abolish police have become more prominent in national discussions, several UC Berkeley experts said they want to see changes in the criminal justice system.
From police departments in local jurisdictions to criminal courts and the carceral system at the state and federal levels, the Black Lives Matter, or BLM, movement has started a public conversation about criminal justice reconstruction. While many protests throughout the nation have focused on police departments, the power dynamics among these systems continue to threaten Black lives and livelihoods.
Beyond systemic racism, members of institutions, such as police officers and prosecutors, often have their own implicit racial biases that affect the decisions they make every day.
Bias and police violence
Implicit bias is a stereotype or prejudice that is unconscious and can be “activated automatically” despite conscious efforts to override it, said Jack Glaser, campus public policy professor and policing expert, in an email.
People tend to implement racial stereotypes or other implicit biases when they are in stressful, time-sensitive or exhausting situations, Glaser said in the email. He noted that this is, in part, why there are racial disparities in whom police choose to stop.
“Officers, like the rest of us, are influenced by our prior conceptions about groups when trying to make a judgment of an individual,” Glaser said in the email.
Campus social welfare assistant professor Erin Kerrison added that bias is caused by prioritizing one group’s comfort over another. According to Kerrison, in the United States, white people and their comfort, by extension, are valued more than Black people and their safety.
Kerrison said the national conversation should include reconstructing perspectives of danger, as Black people are being threatened by police.
“Racism is everywhere, and racism is inherently violent and lethal,” Kerrison said. “There are too many people that have been clamoring about this for centuries.”
Being Black in the United States means one is assumed to be threatening, Kerrison said, which makes some Black people second-guess any situation that could signal threat.
Kerrison noted, for example, that wearing masks in public amid the coronavirus pandemic could be perceived as threatening, and some Black people may choose not to wear one in the interest of their personal safety.
Police, Glaser added, may feel more threatened by a young man of color wearing a mask than of a young white woman wearing a mask due to their implicit racial biases.
“To look or do anything to signal threat gives people a path or green light to discriminate,” Kerrison said. “The implication is that you can’t move or do anything.”
Implicit biases that associate Black people with criminality, according to Glaser, are what caused police officers to more readily shoot armed Black men than armed white men in research simulations.
Glaser also noted that data indicates that police officers may respond more passively to white anti-government protesters than Black protesters due to racial preferences.
Recent BLM protests in Oakland amid the coronavirus pandemic led Berkeley City Council to temporarily ban chemical crowd-dispersal agents, including pepper spray and smoke, and permanently ban tear gas over concerns of their relative safety.
Burns are possible when protesters are exposed to chemical crowd-dispersal agents, along with cuts or blunt force trauma when hit with canisters. Beyond the physical effects of being injured, protesters can also experience anxiety for months after exposure.
Immediate death caused by chemical burns to a protester’s lungs or throat is also possible.
Rohini Haar, an emergency room physician and research fellow at UC Berkeley School of Law’s Human Rights Center, supports Berkeley’s moratorium on chemical crowd-dispersal agents.
“I’ve seen tear gas and pepper spray throughout my career,” Haar said. “When people come in (to the emergency room) with pepper spray, they say it is incredibly uncomfortable.”
Haar said, however, that banning chemical crowd-dispersal agents is not enough to deal with larger issues.
According to Kerrison, police exist to control groups that are not “in step” with white patriarchal capitalists. She added that structural issues in modern policing exist and go beyond some officers being “bad apples.”
“Get rid of (police departments),” Kerrison said. “That’s the reform. An institution cannot produce violence if it doesn’t exist.”
The history of policing
The modern policing system in the United States has a long history of racism, said Jonathan Simon, campus criminal justice law professor, in a press release for the Berkeley Faculty Association.
“We tend to believe our own myths of crime and punishment,” Simon said. “This will make it very hard to change this system.”
According to Simon, the eugenics era, a time period in the 1900s that saw a rise in racist ideology, promoted punitive institutions such as probation, juvenile courts and parole. Simon added that eugenicists supported immigration restriction, racial segregation and mass sterilization to prevent crime.
Simon noted in the press release that eugenicists claimed most crime was perpetrated by a “degenerate minority of persistent criminals,” which included people of color.
Police were not originally in charge of eugenic social control but soon adopted enforcement strategies to align with this myth, Simon said. He added in the press release that modern police structures that especially target Black communities, including “anti-gang units” and “crime suppression teams,” came directly from the eugenics movement.
“There are racial disparities kind of built into the legal and judicial system in the U.S.,” said Keith Feldman, campus comparative ethnic studies associate professor. “This has been true since the founding of the U.S. in the 18th century and has persisted through decades and centuries of reforms.”
Simon explained how the idea that increased instances of minor crime and “disorder” lead to neighborhoods with high crime rates, dubbed the “broken windows” theory, took shape toward the end of the 1900s.
Glaser said the broken windows theory inspired policies in New York City. He noted that the theory’s central policy, stop and frisk, was often regarded as successful because crime rates in the city dropped when it was implemented.
“This (broken windows) myth institutionalized around expanding the police and mass incarceration,” Simon said in the press release. “All forms of ‘community policing’ are variations on this myth.”
At its peak in 2011, New York City’s stop-and-frisk laws led to more than 685,000 stops; 53% of these were Black residents while 9% were white residents.
Glaser said despite stop and frisk’s virtual elimination in New York City, crime rates continued to decrease throughout the municipality. He noted that experts are still unsure of what reduces crime, although underlying social factors such as well-being, stress and belongingness play a part.
“If (police) are directed to go into a neighborhood to surveil certain subjects, that is what they do,” Kerrison said. “There is still crime in cul-de-sacs and suburbs. If you look for trouble, you will find it.”
Beyond stops that disproportionately affected Black and Latinx people, there were psychological effects that changed how these communities navigated their neighborhoods.
The 1968 U.S. Supreme Court decision for Terry v. Ohio allowed New York City to implement stop-and-frisk policies and made movements perceived as suspicious, such as darting eyes, grounds for stopping an individual. These movements, however, are exhibited by some Black people as instinctual protective measures against police officers, Kerrison added.
Kerrison noted that stop-and-frisk encounters caused psychological harm in communities of color from “unwarranted” harassment and the belief that officers treat suspects as “guilty until proven innocent.”
“If you support Black lives and recognize this history of anti-Blackness, then it is integral to reduce the interactions of police and communities,” Simon said. “Reduce the amount of armed police that are coming in contact with Black lives.”
Racial bias in California courts
The modern judicial system also has systemic racism.
According to a research paper published in June, campus clinical professor of law and practicing defense attorney Elisabeth Semel and her students found that California courts systematically exclude Black and Latinx people from serving on juries. Black and Latinx defendants have, on average, more frequent convictions with longer sentences due to racist jury exclusion, according to the paper.
“Jury selection is just one part of the racist system which has plagued our nation,” said recent Berkeley Law alumna Emma Tolman.
Semel added that prosecutors can challenge a juror’s place on the bench and claim any one of a list of reasons that were previously ruled as nonracially motivated for juror exclusion.
Having dreadlocks, wearing large earrings, distrusting law enforcement and expressing the belief that the legal system is racially biased are all considered valid grounds for excusing a juror in California.
According to Semel, prosecutors also often exclude jurors who have an incarcerated family member, even if the juror says they could remain impartial during the trial.
“If the jury deciding your fate was (picked) in a process that’s discriminatory, then you did not have due process,” Semel said. “Whether the jury represents the community at large is part of the due process story as a whole.”
Semel and her students found that, in comparison to California courts, the federal courts were more likely to uphold the Supreme Court decisions that help prevent racially motivated jury exclusion.
Tolman researched prosecutor training manuals concerning the Supreme Court’s legal precedent. She found that prosecutors were often instructed to rely on their “gut instincts” when choosing jurors.
According to Tolman, relying on intuition instead of intellect leads to more decisions often guided by racially motivated implicit bias.
California prosecutors are also trained to keep middle-class, home-owning jurors, which Tolman believes is coded language for jurors who adhere to traditional views of law enforcement.
Upon completion of the study, recent Berkeley Law alumnus Dagen Downard played a major role in drafting a state law that will change the jury selection process if passed by the California State Senate.
“One of the most important things we can do is to be bold and to be concrete and, instead of talk, to act,” Semel said. “This will make a difference in a piece of the larger puzzle. If we just say the system is rotten and throw our hands up in the air, we won’t be able to make change.”
A prosecutor challenging a juror after April 1, 2021 would have to justify their decision, but several potential justifications would be presumptively invalid. A potential juror having a close relationship with incarcerated people, for example, will no longer be a valid reason to exclude a juror if the legislation is passed by the state senate.
If the law passes, a prosecutor will have to show “clear and convincing evidence” that the challenge was not motivated by a juror’s perceived race or other marginalized identity and that the reasons stated clearly impair the juror’s ability to remain impartial.
Semel said having a nondiscriminatory jury selection process makes more diverse, representative juries possible, adding that deliberations are more carefully and accurately reasoned when jurors have had different life experiences.
“It’s not about counting or percentages or (representation) in a numerical sense,” Semel said. “It’s about making sure those who are qualified to serve have an equal opportunity to serve and aren’t excluded because they are in a particular group.”
The history of mass incarceration
As a direct result of the modern carceral system, mass incarceration disproportionately affects people of color, according to Simon.
“Racial disparities persist and they manifest in particular ways in this kind of key expression of state power, in the capacity to hold people against their will,” Feldman said. “The U.S. is by far the largest incarcerator in the world.”
Simon defined mass incarceration as the large increase in the number of people who were put in jails or prisons. He also said police departments and courts play a role in the prison industrial complex, another term often used when discussing systemic racism in the U.S. criminal justice system.
The prison industrial complex is the theory that corporations and other financial interests profit off of incarcerated people using services such as phones and tablets.
“The long history of race in America has been one built around dehumanization and the prison industrial complex,” Feldman said. “The connection to the policing function of the state has been one key function of racialized dehumanization.”
According to Simon, lobbying groups, including police unions, are able to advocate for mass incarceration to support their own economic interests and claim that they represent the public’s interests.
Simon also said mass incarceration plays a role in police violence, as both have been ways to maintain urban racial order.
“Police violence has gone on much longer than mass incarceration, and it has been a way to maintain the racial order in cities,” Simon said. “Mass incarceration is in response to the destabilizing of the racial order.”
By the 1990s, Simon explained, community policing became more proactive and aggressive to arrest young male drug dealers, and it disproportionately targeted Black communities. This move was part of a larger picture of urban Black exclusion.
“Drug crimes keep young Black people in prison, so they get longer sentences,” Simon said. “The police have to go out and confront people they assume are dangerous and are, therefore, reactively dangerous.”
Following World War II, there was a mass restructuring of the urban economy, according to Simon. He noted that white people flocked to the suburbs, while cities became centers of entertainment, education and research, such as what happened in San Francisco.
While Black southerners moved to northern and western cities in droves during the postwar period, urban white people moved to the suburbs at more than twice the rate.
The United States continues to have segregated neighborhoods in cities and suburbs, which affects access to community resources for many people of color.
Fear of urban, low-level crime and Black people in cities came about while trying to make cities more “hospitable” for corporations, Simon said. These fears lead to aggressive removal and gentrification, which is the process that replaces people who have lived in historically marginalized neighborhoods with new middle-class residents.
Members of the public, Simon said in the press release, are encouraged to deeply accept the power myths and the effects of crime as if they are “common sense.”