“Both sides are us”: Stuntz and Kennedy unpack the spirituality of criminal justice reform

By Alan Bean

In 2010, Michelle Alexander’s The New Jim Crow: Mass Incarceration in an Age of Colorblindness, rocked the civil rights community back on its heels.  Alexander accused the criminal justice reform movement of seeking legal solutions to a moral problem, of fighting for affirmative action while abandoning the victims of a brutal and counter-productive drug war, of telling pretty stories about wrongfully convicted poster-boys while ignoring the social nightmares unfolding in poor communities of color.

 If the way we pursue reforms does not contribute to the building of a movement to dismantle the system of mass incarceration, and if our advocacy does not upset the prevailing public consensus that supports the new caste system, none of the reforms, even if won, will successfully disrupt the nation’s racial equilibrium.  Challenges to the system will be easily absorbed or deflected, and the accommodations made will serve primarily to legitimate the system, not undermine it.  We run the risk of winning isolated battles but losing the larger war.

In 2011, two books by white males revealed that Michelle Alexander is not the only American scholar in search of a new moral consensus for ending mass incarceration.   The Collapse of American Criminal Justice by William J. Stuntz, and Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America by David M. Kennedy are not books written in response to Alexander’s The New Jim Crow.  Stuntz and Kennedy are white male academics who see mass incarceration and the war on drugs as unmitigated disasters.  These authors tackle America’s racial history head on.  Most importantly, they agree with Alexander that a movement to end mass incarceration must begin with a new moral consensus.   

William J. Stuntz: The Collapse of American Criminal Justice

William J. Stuntz

William Stuntz (Bill to his friends and colleagues) died in March of 2011.  Stuntz was a rarity, an evangelical Christian on the faculty of Harvard Law School.  He didn’t wear his spirituality on his sleeve; but he argued like a man with one foot solidly planted on both sides of the culture war divide.  The Collapse of American Criminal Justice attempts to build a non-partisan foundation for criminal justice reform.  But Stuntz wasn’t interested in middle-of-the-road comprise—dying men have no reason to pull their punches.

For the last decade of his life, Stuntz lived with intense back pain that swung back and forth between barely tolerable and excruciating.  Then he was diagnosed with a particularly aggressive and deadly form of cancer.  The Collapse of American Criminal Justice is the work of a man who has suffered deeply, knows he is dying, and has something terribly important to say.

The Collapse is a book about the roots and consequences of violence.

In 1950, northern cities’ murder rates were barely higher than the murder rate for the nation as a whole.  By 1970, that had ceased to be true, and it remains false today.  Large portions of major cities are war zones.  Other large portions of those same cities, along with most of the rest of the country, are reasonably safe . . . Americans live in two strikingly different nations.  That truth goes some distance toward defining our strange politics of crime, as voters in safe places elect the officials who shape criminal justice in dangerous ones.

Following Randolph Roth’s thesis inAmerican Homicide, Stuntz interpreted spikes in violence as symptoms of profound social isolation.  The Irish Potato Famine created a surge of emigration to America between 1845 and 1852, and the result, for cities like Boston and New York, was extreme levels of violence.  The American legal system was profoundly influenced by the great Irish migration, Stuntz believed: The first police forces were created in response to the migration and the office of district attorney became an elected position during the same period.

When the black ghettos of the Northeast and Midwest were created by the northern migration of black sharecroppers in the mid twentieth-century, Stuntz said, the result was a second surge in urban violence.

In America, the subject of violence is ideologically charged.  If liberals address violence at all, they usually attribute it to poverty, latent racism or insufficient gun control.  Conservative political rhetoric views inner-city violence as a symptom of liberal paternalism and argues for a return to individual responsibility.  Stuntz didn’t stand on either side of this cultural divide, or, more accurately, he stood on both sides at once.  Violence, he noted, is segregated by neighborhood and also by race.  Racism contributes to the violence, he allowed, but the violence has also contributed to the brand of racism at work in American politics in the last half of the twentieth century.

Irish neighborhoods were able to rein in the violence, Stuntz believed, because Irish criminals were arrested by Irish police officers, prosecuted by elected Irish district attorneys, convicted or acquitted by Irish juries and sentenced by Irish judges.

Cops, crime victims, criminals, and the jurors who judged them—these were not wholly distinct communities; they overlapped, and the overlaps could be large.  Rage at the depredations of criminals was tempered by empathy for defendants charged with crime: one hesitates before sending a neighbor’s sons to the state penitentiary.

Had the same measure of self-rule applied in poor black neighborhoods in the second half of the twentieth century, Stuntz argued, inner-city violence, and the politics of racial resentment it inspired, would eventually have faded.

Unfortunately, for a variety of reasons, that didn’t happen.  Young black offenders are arrested, prosecuted, convicted and sentenced by people from outside their neighborhoods.  The suburban control of the criminal justice machinery, stoked the alienation at the heart of urban violence, creating a vicious downward spiral that continues three decades after Ronald Reagan came to power.

Stuntz saw mass incarceration as a bi-partisan creation.

The rise in punishment came from the left’s response to the right’s rhetoric.  That response soon bred its own response.  Once liberal politicians like Johnson and Kennedy embraced punitive politics, the right’s bluff had been called.  Conservative politicians had two choices: they could back down, cede the crime issue to their liberal opponents, and admit that their tough rhetoric was cheap talk.  Or they could follow suit and ramp up punishment still more . . . The conservative politics of crime remained symbolic at its core—but the symbolism worked only if conservatives were seen as tougher than liberals.  What began as a political bluff had become a bidding war.

Stuntz pointed out that “the two reigning theories of criminal punishment taught in American law schools today” view mass incarceration as a virtue.

One holds that punishment for crime is a moral good because crime is a moral wrong.  The other theory looks not to moral rights and wrongs but to social costs and benefits: crime is socially costly, and socially costly behavior is best reduced by raising the price paid by those who engage in such behavior.  Notice that both theories—retribution and deterrence, the moral and economic justifications for imprisonment—lead to the same bottom line: the more often crime is punished, the better.

When bulging prisons are viewed as a precondition for public safety, Stuntz said, concern for due process evaporates.

For the past generation, America’s justice system has emphasized the quantity of criminal punishment and not its quality.  Reversing that pattern may yield a criminal justice nirvana: less punishment coupled with more effective crime control.

A fair and effective justice system, Stuntz argued, is dependent on local control.  The Collapse contrasts two styles of criminal justice: a southern system in which “some neighborhoods govern others” and a system driven by the ideal of local democracy that took root in the northeast during the Gilded Age (roughly 1875-1893).  Stuntz realized that this much-maligned era was riddled with corruption and social inequity; but it produced a rough-and-ready style of justice that was fairer, simpler and cheaper than the southern-style system we have today.  Stuntz didn’t expect the criminal justice system to morph into the kingdom of God; he just wanted some semblance of equal justice under law.

The rise of southern justice across America was driven by two profound shifts, one demographic, the other judicial.  During the 1950s and 60s, white people, white money, and white business abandoned the inner city neighborhoods across the Northeast and Midwest just as the legal system was abandoning the principle of local control.  Stuntz pointed out that effective police officers, prosecutors, judges and jurors have always understood that “condemnation and punishment are essential but also dangerous”.  Public safety is non-negotiable, he said, but the primary actors in the legal system must reckon with the humanity of criminal defendants.

Stuntz believed in community-based juries.  The right balance between justice and mercy “comes most naturally to those whose lives most resemble the lives of the criminal defendants who are subject to the justice system’s justice,” he says.  A more democratic style of justice would force prosecutors to work harder to gain a conviction, but Stuntz viewed that as a healthy development. “If a prosecutor cannot convince a dozen residents of a high-crime neighborhood that one of their neighbors should be punished,” he said, “punishment is probably unwise and could well be unjust.”

Stuntz rejected the notion that American justice is riddled with conscious, intentional white racism.  Young black males may not use and sell drugs at a higher rate than young white males, he admitted, but they are six times more likely to kill or be killed.  Still, he deplored “the state’s seemingly insatiable desire to punish young black men.”

In the end, he didn’t think the motivation driving the system mattered much to the young black males who languish in the American prison system.  Racist or not, American criminal justice has been a disaster for young black males.

Taken together, age, sex and skin color function like Hester Prynne’s scarlet letter.  This demography-based suspicion is among the key social facts that define American life in the late twentieth and early twenty-first centuries.  The suspicion may be more rational than racist.  But to those on whom suspicion falls, it certainly looks racist.

The Collapse of American Criminal Justice is a prolonged and brutal assault on the legal reforms of the Warren Court.  Reform was desperately needed, Stuntz said, but Warren-style reform made a bad situation much worse.  Brown v. Board of Education, the Supreme Court decision that ended the “separate but equal” justification for a segregated school system, was rooted in the equal justice logic of the Fourteenth Amendment.  The Warren Court focused on the procedural protections of the Bill of Rights not because it was radical, but because it was far too conservative.

As Stuntz demonstrated in a lengthy review of a depressing patch of legal history, the Fourteenth Amendment was a product of the Reconstruction-era and was quickly rendered irrelevant by the Supreme Court’s Cruikshank ruling.  The justice department had convicted several men for their involvement in the massacre of between 80 and 150 black Republicans in Colfax, Louisiana in 1873.  The Supreme Court drove a stake through the heart of Reconstruction by declaring that the equal justice protections of the Fourteenth Amendment apply to government officials, not to private individuals.  Since mobs and the Ku Klux Klan were responsible for most of the political violence in the South, the Fourteenth Amendment became a dead letter.

Stuntz argued that meaningful criminal justice reform must be grounded in claims based on a resurrection of the Fourteenth Amendment and its principle of equal justice under law.   Unfortunately, the reforms handed down by the Warren Court were rooted in the Bill of Rights: “the Fourth Amendment’s ban on ‘unreasonable searches and seizures,’ the Fifth Amendment’s prohibition of compelled self-incrimination, and the Sixth Amendment’s guarantees of ‘the assistance of counsel’ and the right to confront opposing witnesses.”

Poor, inner-city defendants rarely benefit from these reforms, Stuntz asserted, especially in an age when less than five percent of criminal cases go to trial.  The offenders who typically take advantage of Warren era reforms, Stuntz suggested, are career criminals who know the ropes and white collar criminals who can afford expensive attorneys.  This encouraged the common perception that a liberal Supreme Court was coddling the bad guys just as violent crime rates were beginning to soar.

Warren-era reforms, Stuntz believed, have created a legal system that is long on procedural litigation (did the police, judges and prosecutors do their jobs properly?) and short on the kind of investigation that gets at the issue of guilt and innocence.  When the defendant is indigent, the case is commonly settled by plea bargain before either side has examined the facts.  “The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit,” Stuntz asserted.  Worse still, “often, the best deals go to defendants who have the most information to sell—meaning those defendants with the most extensive histories of criminal conduct.  A fairer and more functional justice system might send more powerful deterrent signals while punishing fewer defendants, by targeting the right offenders for the right reasons.”

Believing that Warren Court reforms had placed prosecutors at a tactical disadvantage, Stuntz argued, legislators created thousands of new laws designed to give prosecutors more options.  In the golden era of Gilded Age jurisprudence, laws were intentionally vague so that judges and jurors could inject their own moral intuitions into the legal process.  Today, by charging defendants with a variety of virtually identical crimes, prosecutors can ensure a conviction at trial even when the fact issues are in dispute.  If enough charges are filed, defendants are almost certain to be convicted of something.  Discretion now lies in the hands of prosecutors while the hands of judges and jurors are increasingly tied.

Stuntz was drawn to solutions that transcend the culture war divide.  He believed America is incarcerating far too many people, largely because poor neighborhoods are underserved by law enforcement.  By the canons of Stuntzian logic, more officers on the beat equal less street crime and fewer prison inmates.  This is especially true, he believes, when police officers respect the humanity of criminal suspects and employ “community policing” strategies.

Given today’s crowded dockets, Stuntz said, neither prosecutors nor defense attorneys have the time or resources to adequately investigate criminal cases.  The modern preference for plea bargains over trials is a necessity not a luxury; the only way an over-taxed system can cope with a tidal wave of criminal cases.  A more just and democratic system would feature fewer defendants and more of everything else: prosecutors, defense attorneys, judges and courtrooms.

These arguments will not be popular to reformers who argue that American justice is too expensive for our cash-strapped society.  If Bill Stuntz’s suggestions were implemented, the cost of criminal justice would expand across the board.

The only potential source of savings in Stuntz’s system would stem from reduced prison populations.  We are arresting too many people for too many crimes and sentencing them to ridiculously long sentences.  Stuntz saw the war drugs as a proxy war on violent crime.  Why else, he asked, would non-violent drug defendants be sentenced more harshly than those convicted of rape and assault?  Violent crimes require extensive investigation and the use of eye witnesses.  Therefore, defendants suspected of violent offenses are commonly prosecuted on drug charges which can be prosecuted quickly and on the cheap—almost always via plea bargain.  The system, in Stuntz’s view, pays far too much attention to drugs and not enough attention to violence.  Non-violent drug dealers are sentenced far more harshly than their crimes deserve, he believed, and everyone knows it.

Bill Stuntz didn’t die a confident man.  Not only would he not get to the Promised Land he sketched out in the concluding chapters of The Collapse, he feared that America wouldn’t get there either.  It is here that his vision for reform draws close to the spirit of Michelle Alexander’s The New Jim Crow.  Alexander speaks of a flawed national consensus on race and crime and emphasizes the need for genuine caring across racial and economic lines.  Stuntz issues a similar call.  Reform demands that white-dominated counties relinquish legal and democratic control of poor black neighborhoods.  Stuntz knows that’s a stretch:

 The disaster that is contemporary American criminal justice does not look so disastrous in most places, which is why there has been no sustained political demand for large-scale reform of the justice system.  Major changes in the system’s structure . . . require a critical mass of voters (also legislators and appellate judges) to support a program that carries little benefit for them.

Michelle Alexander put it this way to an audience at New York’s Riverside Church:

When I’m talking about love, I’m not just talking about love for people who have committed crimes like we may have committed, crimes that we think are not so bad; I’m talking about the kind of care and love that keeps on loving no matter who you are or what you have done. It’s that kind of love that is needed to build this movement.

Stuntz closes his book with a similar appeal:

The criminals we incarcerate are not some alien enemy.  Nor, for that matter, are the police officers and prosecutors who seek to fight crime in those criminals’ neighborhoods.  Neither side of this divide is ‘them.’  Both sides are us.

This both-sides-are-us principle must become the heartbeat of the criminal justice reform movement.  So long as the police and prosecutors are lionized by conservatives and demonized by civil libertarians, meaningful reform is dead on arrival.  Middle ground must be found, but split-the-difference political compromise will get us nowhere.  Conservatives and liberals can only come together around the truth, the whole truth, and nothing but the truth.  That’s where David Kennedy comes in.

David M. Kennedy: Don’t Shoot: The End of Violence in Inner-City America

David M. Kennedy

David Kennedy directs the Center for Crime Prevention and Control and teaches criminal justice at New York’s John Jay College of Criminal Justice.  He is bright, intense, and haunted by the horrors he has witnessed on the streets of inner-city America. Unlike Bill Stuntz, Kennedy doesn’t place his hope in the conversion of white suburbanites; his focus is on a perception gap that keeps police officers and residents of high-crime neighborhoods from really seeing one another.

Kennedy isn’t dreaming of a drug-free utopia; he just wants children to be able to walk to school without encountering open air drug markets; he isn’t trying to build crime-free communities, he just wants the killing to stop.  “The killing’s wrong,” he says.  “The killing’s terrible, it’s got to stop.  Even the street guys, almost all of them, think that.”

In Kennedy’s plan, those who think the killing is okay go to prison; everybody else gets a second chance.  His first big revelation, when he started working on violence reduction in the mid-1990s, was that street thugs are rational.  Deliver the right information in a consistent and convincing manner, back words with action, and even violent drug dealers will do the smart thing.

Everything we think we know about drug dealers is wrong, Kennedy says.  Most street dealers work for less than minimum wage; that’s why most of them are easily mistaken for homeless people.  Most of the money they make goes for drugs, running shoes, beer and rims.  They generally live with mothers or grandmothers.  With few exceptions, they hate the violence that swirls around them but feel powerless to stop it.  Most of them never shoot anyone, and when they do it is almost about petty beefs, reputation maintenance and boy-girl stuff.

Moreover, the violence is restricted to a small number of people, Kennedy reports.  Most of the killing in a typical city is confined to a few “hot” neighborhoods, and even in these communities the violence is restricted to a handful of gangs or street crews.  Within these groups, only a tiny minority fits the “cold killer” stereotype.  Most gangs don’t kill anyone in any given year, Kennedy explains, and some gangs don’t kill anyone ever.  He estimates that most of the violence is being driven by three-tenths of a percent of the population.

To stop street violence, he argues, you must first understand the world these kids live in.

A world in which young men stand against a powerful, malevolent world and say to themselves and to each other, Prison’s no big thing; I’m going to be dead by the time I’m twenty-five, so nothing really matters; if a man is disrespected, he has to return violence or he’s not a man; the enemy of my friend is my enemy; I’m a victim, so I’m justified in what I do . . . It is a world that believes that it acts with righteousness.  It is a world that believes the community around it does not care, or is complicit, or is supportive.  It is a world that believes that the police hate it and are motivated by racism and personal animosity.

Street kids don’t think, speak or act as individuals, Kennedy insists, but as members of a group.  Unfortunately, the criminal justice system isn’t set up to address group dynamics; it only deals with isolated individuals.

Kennedy likes to pare things down to their essential elements.  “America has four inextricably linked problems that converge in its most troubled communities,” he says.  “There’s the violence that terrorizes many of its . . . black and minority communities.  There’s the chaos that comes with . . . public drug markets.  There’s the devastation being wrought on . . . troubled black and minority communities by our criminal justice response to the first two problems.  And there’s the worsening racial divide that’s causing.  We can’t deal with any of them without dealing with all of them.  We deal with them, it’s a different country.”

Kennedy’s solution can be laid out in a ten-minute talk.   “The first step is to focus on groups that are violent right now.” You don’t worry about kids that might grow up to be violent, or about wannabees throwing gang signs on the corner.  Instead, you single out the most violent gang, focus on their most violent behavior and insist that it stop.  You don’t go to individuals, you go to groups; and you approach groups members as if they were rational human beings.

When you have the attention of the most violent gang in the neighborhood, you “spell out the new sanctioned environment that had been created for them.”  The message is simple: We love you and we want the best for you, but the killing has to stop.  The next time anybody in this crew shoots somebody, we’re coming after all of you.  To make this happen, you have to “organize law enforcement so it can provide a clear, crisp, predictable strategic response, particularly to the groups and collectives at the center of the action.”

It isn’t hard to follow through on these threats, Kennedy says, because members of the most violent gangs almost always have a rap sheet a foot long.  Follow through is essential, however.  Come down hard on one gang and the streets go quiet.  Empty threats accomplish nothing.  Street hustlers are used to being lied to.  That’s what they expect.

Finally, Kennedy says, you must “offer a way out for those that want it.”  While he believes in offering educational and vocational help to the most motivated gang members, Kennedy’s method doesn’t hinge on the success of this step.  “Not everybody has to get a job for the killing to stop,” he says.  Even when help is offered, “not many street guys come forward, not that many can stick with the social-service programs designed to help them, not many can make it even when they really try.  They’re heavily compromised in awful ways: They have appalling criminal records, street attitudes that are hard to shake, they’re shocky, they have terrible work habits.  Jobs are hard to get even for people without all these problems . . . But you don’t need a job not to shoot people.  You don’t even need to live a straight life not to shoot people.  You just need not to shoot people.”

After a few years working on violence reduction, Kennedy turned his attention to drug markets.  Not drugs; drug markets.  You tell the street dealers to stop dealing on the corner.  Initially, nothing changes.  Then you secretly videotape a week of drug deals and invite the central players to a public meeting with the promise that “you will not be arrested.”  In the course of this meeting you roll the film and tell the dealers to raise their hands when they see themselves committing a felony.  But you only prosecute the dealers with a history of violence.  Everybody else gets a second chance.  If they screw up, they will be prosecuted.

Legitimacy is the key.  You must do precisely what you promise to do.  False promises are deadly.

When pressed, criminal justice reformers will admit that prosecutors and police officers have a legitimate place in society, but we rarely say so.  These people are central to the success of Kennedy’s system; he just wants them to stop shooting themselves in the foot.

It can’t be about getting drugs off the street, Kennedy insists; it’s about making the streets safe for old folks and little children.  Nor is it about crime.  “Framing this as crime is deeply, profoundly unfair to the most dangerous neighborhoods.”  Crime in poor neighborhoods isn’t that much worse than crime in affluent neighborhoods, Kennedy insists, it’s just out in the open, and that’s the problem. “We see two choices: the killing continues, or all the thugs turn their lives around and become middle-class taxpayers.  That’s not how it works, even in a lot of good neighborhoods.”

The goal, he says, is to stop the violence and end the chaos on the streets.  If the goal was to eliminate all crime, overt and covert, he says, you would see paramilitary tactics used in the suburbs.

We could saturate the white high schools and colleges with undercover officers, arrest lots of white kids.  We could follow the weed dealers back home, make sure they get in the house, kick in their doors, twist-tie their parents, shoot their dogs, seize their houses, get them and their families evicted from their apartments, make them homeless.  Tap their phones, find their suppliers, get everybody on RICO charges, threaten them with federal prison, drop hints about anal rape, flip them on their friends.  Easy.  If this were really about crime, we’d be doing it.

This is precisely the kind of drug interdiction that unfolds in poor neighborhoods every day.  It’s stupid, Kennedy says, it doesn’t work, it’s dehumanizing, and it’s wrong.

So, if the strategy is so simple, why does David Kennedy have that haunted look in his eye?  The hard part, he admits, is to get everyone involved in the system (the cops, the prosecutors, the parole and probation officers, the social workers, the local preachers and the “influentials” within the local community, to buy into the same message and a common strategy.

Turns out, it ain’t easy.  In fact, it’s so hard that Kennedy once suffered a complete emotional and physical collapse that sidelined his active work for a full year.  His willingness to share the painful side of his personal story lends an unusual poignancy and authenticity to Don’t Shoot.  Kennedy spares no one from his withering critique, least of all himself.

Here’s what makes it so hard to implement the reforms Kennedy champions.  “All sides—the neighborhoods, the streets, law enforcement—tell stories about each other that are at their heart deeply mistaken and deeply destructive.  But all sides are in deep ways rational, whatever may be appearances to the contrary, and all sides are willing to shift to a new place, if they can see it and find their way there.  Everybody, in a very real way, is keeping everybody else going.  Everybody can stop.”

Everybody is rational, he says, and everybody is wrong.  The police “thought the community was completely corrupt, from top to bottom,” while “the community thought the police were predators deliberately doing them horrendous harm.”  In short, “the relationship between the police and community was being poisoned by toxic racial narratives.”

Police officers abuse the residents of inner city neighborhoods and cut legal corners because, in their jaded and cynical eyes, every young man they see is a drug dealer and the community either endorses or tolerates their activities.  Kennedy loves police culture and enjoys being with cops, but he deplores “the kind of policing that makes citizens in these neighborhoods think, at best, that the police are not on their side, and at worst that they are a race enemy.”  If the police are viewed in this way, “there can be no rightful place for the law . . . When standing against guns and drugs and violence means standing with a race enemy, not many will stand.  When doing something means putting your own sons and grandsons and neighbors in prison, not many will do something.”

Moreover, Kennedy says, both police officers and community members must change their understanding of “street dealers and gang members.”  These kids aren’t getting rich and almost none of them are “superpredators”. “They don’t work steadily, they get robbed, they get arrested and can’t sell, they’re addicted and that’s where all the money goes, it rains and nobody’s out buying drugs, the cops are all over and nobody’s out, their connection gets busted and things dry up.”

Most importantly, “They’re getting hurt and killed at astronomical rates.  They’ve got real enemies after them, trying to hurt and kill them.  They get pushed into hurting, killing other people, because that’s what the street code says and their friends are watching.  They’re cycling endlessly through jail and prison.  They’re on probation and parole and can’t do what they want, have to piss in a cup.  The police roust them all the time.  They’re scared for their moms, wives, girlfriends, little brothers and sisters, sons and daughters.  Their fathers are absent or locked up, their brothers are dead or lucked up or paralyzed.  They’re saturated with PTSD.  Life is like a video game, it keeps on getting harder, they don’t know if they can take it much longer.”

Give these kids half a chance, Kennedy tells people, and they will jump at any credible alternative.  They’re desperate, and they’re scared to death.

Getting the street crews on board is the easy part, Kennedy discovered.  “The bad guys are not a problem.  I don’t know how to handle the good guys.”

The good guys are police chiefs, prosecutors, DEA and ATF agents, mayors, city officials, and the entire panoply or officialdom that must buy in before the operation can work.  Getting the police chief on board is the biggest step, Kennedy says.

When the good guys are sold on the project, the enormous gulf separating cops from community members must be confronted.  “If you want real, lasting change, if you want the cops and the neighborhoods and the streets to really see each other, hear each other, trust each other, you have to face how where we are now is infused with racial history, racial understandings, racial misunderstandings.”

That means confronting the toxic racial narratives that operate on both sides of the cop-community divide.  Neither conservative nor liberal perceptions are particularly helpful in this regard, Kennedy says.  Conservatives keep hoping that locking up more and more street kids will somehow solve the problem; liberals substitute sophistry for reality.  Kennedy is tired of academic bull-shit. “The smug notion that there is no problem here, or that this is all a moral panic, or that the problem with high-crime communities is the institutional racism of the criminal justice system, is a crock.”

Kennedy has spent hundreds of hours riding and working with police officers and says he has never heard a single racist remark.  What he sees, over and over, is insensitivity, illegality and a cynical disregard for civil rights.  This behavior, viewed against the backdrop of America’s tragic racial history, looks like racism even when it isn’t   The idea, common currency in these neighborhoods, that the government is running a carefully organized racial conspiracy against black America is not as crazy as it sounds,” he says at community meetings.  “Up until the late 1960s, when the civil rights movement finally won out, America was a carefully organized racial conspiracy against black America.”

Unless the full ugliness of this history is trotted out in public and denounced, Kennedy believes, there can be no way forward.  At public meetings, he talks about the Klan, COINTELPRO and all the rest.  “This was America, our America,” he says.  “Whites tend barely to know it, or to diminish it, or to set it aside as then against wherever it is that now begins, like hoop skirts and the Lone Ranger on the radio; interesting, in a quaint kind of way, but of no real significance.”

Then Kennedy talks about the triumph and aftermath of the civil rights movement.  “The decades after the civil-rights victories should have been a celebration,” he says, but things did not go as planned.

Racial segregation declined; the black middle class grew dramatically.  But both the absolute number of blacks living in poverty and their concentration in poor neighborhoods increased.  For these neighborhoods, those decades were a spiral of decline . . . White flight, in the face of desegregation, weakened the core cities.  Black flight, enabled by desegregation, took many of the better-off residents with it.  School desegregation, busing, and more white withdrawal weakened school systems and eroded tax bases.  The decline of manufacturing and the growth of outsourcing took away living-wage jobs.  The increasing education requirements of jobs in the new economy left the marginally schooled further and further behind.

Only then does the drug issue enter his discussion.  “Crack and crack markets and already desperate community conditions and our law enforcement response fed on one another, a positive feedback loop of destruction that turned the spiral of decline into an endless free fall.”

Then Kennedy turns his attention to the police officers in the room.  “In these neighborhoods, the historical experience of abuse under color of law continues.  It is a kind of arithmetic truth that the worst of this is in the most desperate neighborhoods, that the worst law enforcement, and the worst of law enforcement’s unintended consequences, gets focused on the already most damaged, most alienated, most suspicious communities where the police break the law all the time.  All the time.”

If the communities don’t believe you feel their agony, Kennedy says, they will not listen.  He quotes Edward Copeland, a black minister friend from Rockford Illinois.

I’m not a psychiatrist, but there is a phenomenon of vicarious trauma.  If it happened to your cousin, your nephew, your classmate or your fellow choir member, it might as well have happened to you, and you might be next.  When you add media coverage of incidents like Oscar Grant, Amadou Diallo, Sean Bell, and others, a communal anguish and anger occurs that is hard to define or express.”

These events, Kennedy says, reinforce “what everything else in the neighborhood—the lack of work, the useless schools, the decay, all of it—says every day: The outside world does not care, is dangerous, touches us only to do us harm.”  And “nothing says that more than sending the neighborhood to prison.”

Like Michelle Alexander, Kennedy eschews fine distinctions between innocent victims and guilty thugs.  For the sake of argument, he writes, “Let’s say that each crime is real, each arrest and prosecution well grounded, each sentence statutory.  That doesn’t make what’s going on okay.  It doesn’t undo the damage that’s being done.  The point is that no community can survive many, most, of its men having criminal records, surging back and forth between prison and home, damaged for life no matter what they want and do . . . Nothing else will work until we fix this.”

Then Kennedy addresses the common theory that the despair in poor black communities is the product of an intentional conspiracy.  “There is—today—no government conspiracy to destroy the black community,” he states flatly.  “The government is not bringing the drugs into the country and distributing them.  There are no shadowy kingpins pulling the strings and making all the money . . . This isn’t a conspiracy; it’s a train wreck.”

There may be no conspiracy to destroy black America, but, like William Stuntz, Kennedy admits that “if we were trying to play to the idea that there is, we could hardly do a better job.”

Kennedy understands the frustration police feel.  “They see middle-class blacks thriving while these communities languish . . . I came up from poverty, they’ll say.  My parents taught me right.  I finished school, I started out bagging groceries, did the right thing, and here I am.”

True, Kennedy says, “But when you decided to finish school and start bagging groceries, did you have a felony jacket that made all that completely pointless?”

When Kennedy talks about working with the community, most cops tell him “there’s no community to work with . . . Everybody . . . is living off drug money, nobody cares, there’s no community left.”   Police officers “don’t understand the anger, see only excuses and victimhood.”  Cops don’t dislike black people, Kennedy insists, and they haven’t written off black America.  Police officers, black and white alike, “have written off the neighborhoods, the communities.”

Call this racism, Kennedy asserts, and cops shut down.  It isn’t racism, as the word is normally defined, “But it’s all soaked in race, simmering every day in our real, toxic history of racism, in the racism that remains.”

Kennedy’s system works best if the police chief can stand up and apologize to the community.  Sometimes that happens, with amazing results.  At the very least, police representatives must signal a desire for a fresh start.

Community buy-in is essential.  “Nobody can set standards for your community from the outside,” Kennedy tells his audience.  “If the only people saying, Don’t shoot, don’t sell drugs, are from the outside, in uniform, the streets won’t listen.  The cops have less than no standing.  If the guys on the corner don’t hear it from you, they think you don’t care, think you’re supporting them.”

The trick, Kennedy learned, was to enlist the support of “influentials” like mothers, grandmothers, pastors, teachers and pastors.  “Tell them their son is at a turning point; tell them they could be arrested now but we’re hoping to avoid that; tell them that they’ll be offered help, bring them, come with them.”

When street dealers know they will go to prison if they don’t make a change, Kennedy discovered, they will generally comply.  Most communities, he believes, operate on the basis of ‘informal social control’.  “Shame, conscience, guilt, what your friends think, what your mom thinks, what your community thinks—mean far more than ‘formal social control’: cops, courts, probation.  Most people do what they think is right, most of the time . . . People and communities, even rough ones, mostly control themselves.”

“If the community will step forward, make its voice heard,” Kennedy says in conclusion, “that means the cops can step back.  That’s as it should be.  We don’t occupy white neighborhoods, we don’t lead with law enforcement there.  The cops play cleanup and step in when the community can’t handle it.  As it should be.”

In other words, poor black inner-city neighborhoods and affluent white suburbs operate on the same social principles.  Like Bill Stuntz, David Kennedy is defending the principle of local, democratic control.  Communities, they believe, can solve most of their own problems if they are given a chance.


“Criminals, Michelle Alexander suggests, “are the one social group in America that nearly everyone—across political, racial, and class boundaries—feels free to hate.”  If Bill Stuntz and David Kennedy are anything to go by, that might be changing.  Kennedy insists that cops can address criminals like rational human beings.  Bill Stuntz, days before he entered hospice, expressed a cautious hope that “those who enforce the law and those most tempted to break it” have in recent years shown signs of turning, “if only slightly, toward each other—toward relationship rather than enmity.”

Still, to most Americans, bridging the cop-criminal divide is hardly a priority; in fact, few would see such a rapprochement as desirable or realistic.  This vision of radical reconciliation is essentially religious in the sense that it transcends normal human possibility.   It is similar to what Martin Luther King Jr. called “the beloved community.”  “The end is reconciliation,” King told his followers in 1957, when the ultimate triumph of the civil rights movement was less than obvious.  “The end is the creation of the beloved community. It is this type of spirit and this type of love that can transform opposers into friends.”

Michelle Alexander, Bill Stuntz and David Kennedy likely disagree on many things, but their common pursuit of a new and reconciling consensus is cause for great rejoicing.  Mass incarceration will not end until a new kind of spirituality flowers among us; a spirituality strong enough and broad enough to bridge the divides separating believer from unbeliever, conservative from liberal, cop from criminal.

So long as conservatives bash criminals, liberals bash prosecutors and police officers, and the folks in the middle are indifferent to the awfulness that surrounds them, mass incarceration will remain firmly in place.  Professor Stuntz’s parting words bear repeating:

The criminals we incarcerate are not some alien enemy.  Nor, for that matter, are the police officers and the prosecutors who seek to fight crime in those criminals’ neighborhoods.  Neither side is ‘them.’  Both sides are us.  Democracy and justice alike depend on getting that most basic principle of human relations right.


4 thoughts on ““Both sides are us”: Stuntz and Kennedy unpack the spirituality of criminal justice reform

  1. I just wanted to thank Friends of Justice for all the references to books I have read from here, especially Rev. Charles Kiker’s list and Ms Alexander’s book.


  2. Dear Alan,
    This is so incredibly powerful. I struggle all the time with how on earth we move this movement forward, and I do think that remembering your final Quote is a good place to start. It’s helpful to me to be reminded that just like so many situations, the problems in our criminal justice system are complex and nuanced. I live in a neighborhood that was subject, some time back, to a brutal gang war, and one of my neighbors said “if this was a white middle class neighborhood, with their children being killed every day, they would call in the national guard”.

    I like this emphasis on violence reduction very much, and I wonder how to get the country at large to recognize the holocaust (and having many holocaust victims in my family heritage I don’t use that word lightly) that is occurring in our inner city neighborhoods. I find the situation heartbreaking.

  3. Thanks, Laurel. Yes, I think it is necessary to link violence reduction to the drug policy message. Otherwise, you don’t get buy in from affected communities.


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