As the recent demands to fund infrastructures of care instead of police make plain, Smith’s words were prescient. I am a public defender in Prince George’s County. Here and elsewhere in the United States, returning to business as usual for people accused of crimes — and for many of those who accuse them — would be a nightmare.
What, then, is “the box” of which Smith speaks? And how do we “think outside” of it?
The box is the myth that confining and degrading people is a just response to perceived transgressions. If this were true, incarcerated populations would represent a cross-section of society. But they don’t. In the United States, incarceration is reserved largely for people with below-average incomes and disproportionately for black people. Maryland, at more than 70 percent, leads the nation in the percentage of prisoners who are black.
To think outside of this box, as Columbia University professor Gayatri C. Spivak has suggested regarding human rights professionals, the criminal justice class — i.e., legislators, judges and lawyers — must disabuse itself of the notion that it is our manifest destiny to right wrongs within the communities we police and speak for but are infrequently of. If we seek human flourishing, rather than the proliferation of penal bureaucracies, the criminal justice class must learn what justice means to the people whose rights we purport to uphold.
How? One way is to ask. Maryland’s coronavirus-related court closure has given me time. With it, in some of my cases, I have sought to understand and enable the impacted parties’ visions of justice. With my clients’ permission, I have asked alleged victims what they might consider a just response to the family, friends or neighbors whom they accuse.
Each alleged victim I spoke with initially made the same pained declaration: “I don’t want incarceration, but I don’t know what else to do.”
Unburdened by my usual heavy caseload, I connected them with Melvis Asongwed, one of my office’s few social workers. Applying a skill set that lawyers rarely possess, she ably facilitated conversations about resolutions apart from incarceration. Resultantly, a quarreling mother and son agreed that substance abuse treatment for the latter was an appropriate remedy, and conflicted neighbors decided that, for one of them, mental health counseling would provide sufficient redress.
As Maryland’s courts reopen, the State’s Attorney’s Office has the authority to compel these alleged victims to testify and, should it secure convictions, recommend terms of incarceration for my clients. But the state also has the discretion to honor the impacted parties’ articulations of justice, in these cases and others.
For many in the criminal justice class, there is anxiety associated with relinquishing control over the response to transgression. Exercising authority feels ennobling. Moreover, incarceration is entrenched and, as the alleged victims I spoke with expressed, it seems difficult to imagine alternatives.
But is it really so difficult?
For the criminal justice class, might we need only look to our own communities? Do we know many people who have been arrested, let alone incarcerated? If no, why not? Have the people we know transcended the drives to abuse substances and bodies, possess weapons, cheat and steal? If, upon reflection, it turns out that people in our communities regularly transgress but rarely suffer incarceration, then how do we hold our own to account? From my vantage point, we employ rehab, psychological counseling, social censure and tribunals internal to our private institutions.
As we emerge from the pandemic, what if the criminal justice class chooses not to return to business as usual? What if, instead of rushing to ramp up arrests and reschedule thousands of postponed prosecutions, we invite communities affected by incarceration to imagine non-carceral responses to transgression? We would learn that they, like us, know what else to do.