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Subjectivity and the Evaporation of "Equal Justice"

-- By AustenBrandford - 13 Feb 2012

The Cyclical Outcomes of Subjectivity

The assumption that our system of law consistently leads to the “true” and “just” outcome is very naïve. 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.

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.

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. 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.

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. 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.

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. 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.

History and Contemporary Effects

Oppression of African Americans is nothing new. Along with the Emancipation Proclamation came the unfortunate realization for many ex-slaves that they were living a life of extreme inequality. 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 as looking at a white woman, and potentially even sentenced to death for such an “offense.” 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 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. 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. 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.

Conclusion and Solution (or lack thereof)

If the connections that I’ve drawn are accepted as true, 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. The simple application of rules to facts does not explain why outcomes vary so widely. 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. 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.