If you were a politically conscious American in the late 1980s, you'll remember the moment the American Left "lost" the argument over criminal justice policy. All it took was George H.W. Bush greenlighting his campaign team's use of Willie Horton, a black convict from Massachusetts, to scare Americans into concluding, once and for all, that Democrats were "soft on crime." Democrats, for their part, seemed only too happy to concede the point, if only because they'd been losing votes over criminal justice issues for so long that any excuse to drop them from the party platform was little less than a godsend.
The American criminal justice system is one of the largest and most expensive such civic mechanisms in the world, and catches in its massive net millions of Americans every year -- some as defendants, some as witnesses, some as victims, some as family members of any of the foregoing -- so how is it that one of the nation's two major parties came to roll over on it so completely? The answer is simple: Anecdotes.
What Republicans realized in the late 1980s is that upsetting anecdotes make for draconian public policy, as there's literally no end to the sort of anecdotes you can find in a nation of more than 300 million. Therefore (the thinking went) all one needs is a good research team to "win" the criminal justice debate. That's how Fox News has operated since its founding in 1996; if you make the mistake of watching that particular media outlet, you'll find that what its anchors and pundits largely do is draw out idiosyncratic threads from the fabric of American life and sell them as commonplace. Is Christmas under attack by heathens? Just ask this Walmart shopper in Decatur, Georgia! Does affirmative action hurt white kids everywhere when it comes time for them to apply to college? Just ask this middling Texas high school student! Is the Obama Administration corrupt from top to bottom? Just look at what this IRS agent in Cincinnati did! In short, the key to Republican victory on nearly every issue -- but particularly as to criminal justice issues -- is to misstate the exceptional as the ordinary, to explicitly use local phenomena to make universal claims no other manner of intellectual inquiry would support.
Meanwhile, feckless Democrats fall back on their "data" and their "longitudinal studies" and their "research" to observe that, in fact, what the GOP says is everyday occurrence is almost impossible to find anywhere. For every one case of a child being wrongly kept from exercising his First Amendment rights in school, there are hundreds or thousands of cases in which American children are forcibly exposed to what appears to them to be a state-sponsored religion -- I for one recall being a New England agnostic who was forced to say the Pledge of Allegiance ("... under God...") every day -- but you wouldn't know that from watching Fox News or listening to right-wing radio.
This is the backdrop against which the George Zimmerman trial occurred. It was an exceptional case for too many reasons to count, and we'll likely never fully understand the reasons it became even more exceptional over time, as surely only some of them had to do with race. How often does the criminal justice system encounter a cross-racial homicide in which the defendant has a nonviolent criminal record, was a neighborhood watch captain who wanted to be a police officer, was cooperative with police, wasn't charged for a month and a half after the incident, and was ultimately able to make bail and give interviews to Fox News? Well, basically never. But that doesn't stop online pundits from opining, in normally responsible media outlets, that this exceptional case tells us everything we need to know about our nation's laws. In doing so, these outlets and these pundits play right into the hands of conservatives, whose watchword for criminal justice debates has always been to ignore the systemic and emphasize the anecdotal.
The fact that the American Left, which is largely outraged by the Zimmerman verdict, has adopted wholesale the GOP playbook on criminal justice is a sign that the Republicans really have won the criminal justice debate. But that's not the same thing as saying they're correct. An analysis of the Zimmerman case from the standpoint of the system rather than the case's individual players and observers makes that clear. For instance, we could bemoan the exceptional volume of deliberation that preceded the decision to charge George Zimmerman with second-degree murder, or we could note that that very deliberation highlights how little deliberation we see pre-indictment in the typical criminal case. We could seek evidence of Zimmerman's exceptional status in his brown skin, white heritage, and black victim, or we could note how prosecutors used class, prior criminal record, idiosyncratic personal data, and the defendant's level of cooperation with law enforcement to determine whether charges were warranted in the first instance. What if, instead, a defendant caught up in the American criminal justice system could refuse to answer police officers' questions and still not be prosecuted for a crime -- because the charging decision was based on a lengthy and deliberate police investigation, not prosecutors' annoyance with the defendant's degree of malleability? What if it were easier to expunge wrongful arrests or even minor convictions from one's record, so that young black males couldn't have their prior criminal records -- often bolstered by over-aggressive policing and over-charged complaints and indictments in their home neighborhoods -- used against them with such alacrity? We're looking for what is exceptional in the Zimmerman verdict, when we should be looking for what's routine.
When the media was paying little attention to the Zimmerman case, State actors in Florida behaved, in general, abominably; as soon as media attention accrued, they continued acting abominably, merely in a different fashion: Overcharging their case and using the media to assist them in a nationwide rush to judgment (trying a complicated homicide case in the media being an injustice no matter who it happens to). This, too, is sadly routine, and therefore deserves our attention. When those without resources are caught up in the criminal justice system, every decision is made more heedlessly than it would have been if someone had been watching; nevertheless, most jurisdictions have shut down the citizen-complaint review boards that once allowed the People to keep watch on their elected officials' lapdogs (prosecutors and police officers, who largely have to push forward with policies and principles they didn't themselves enact into law). We spin our wheels madly over the Zimmerman verdict, but we'd learn far more about the criminal justice system -- and how to fix it -- by doing careful research on the sorts of cases that are routine in the system and therefore never make headlines. If you want to know how irresponsibly such cases are usually handled, look at how things proceeded in the Zimmerman case before it received any media attention.
Whenever criminal justice reform advocates point us toward systemic research, what we find is startling. The death penalty has no deterrent effect. Crime isn't higher in jurisdictions that pay their public defenders well. Mandatory minimum sentences don't reduce crime. Rehabilitation works. Community policing is effective, particularly when it isn't just a euphemism for ignoring the civil rights of local residents. Citizen-complaint review boards matter. Uniformed police officers' everyday policing techniques can be changed for the better if the policies that inform their training (and the political currents that sway police administrators) are changed. Blacks are arrested, prosecuted, convicted, and jailed at a higher rate than whites for the same crimes. Too many of those sitting in prison are nonviolent offenders. We spend more money on criminal justice than most other nations and have less to show for it. Gun bans do lead to a diminishing and even an elimination of gun violence. Gay marriage and bans on sodomy laws have absolutely no negative effect whatsoever on civil societies. And so on.
Every time a case like Zimmerman's comes into the public view, I cringe. As a progressive, I cringe. I cringe because I know the case is a trap that tens of thousands of fellow progressives will immediately fall into, stealing a page from the GOP playbook by telling everyone who'll listen that this case -- this case, my friends! -- is the one we can look at to teach us everything we need to know about the criminal justice system. Except that it's not, and this is precisely why progressives and Democrats have lost the criminal justice debate in America. But we can turn the tide, if only we wish it.
When we search for the routine in criminal prosecutions, for the systemic, we learn what needs to be fixed, and why, and by whom. It takes longer, yes, but it yields more. Far more. If you've followed the Zimmerman case avidly and right now feel outraged because, due to a few hours of television-watching, you've self-deputized yourself as an expert on the criminal justice system, realize that you're doing exactly what your political enemies want you to do. They salivate at your rush to judgment, your demonization of juries and defense attorneys, your slandering of important constitutional principles like the burden of proof (which is always and entirely on the government, and should be), your casual scorn for everything about our system of justice that doesn't, in this one exceptional instance, produce the outcome you desire. What is scary about the Zimmerman case is not that it's common but that it's rare. More commonly, a young black defendant is railroaded by a prosecution with too little interest in civil rights or civil liberties, too little respect for the honorable work defense attorneys and juries do, and too little accountability to members of the community.
Conservatives salivate at progressives' response to the Zimmerman verdict because, at the end of it all, workaday progressives' criminal justice reform efforts are weakened, not strengthened by it; the public becomes even more misinformed about the criminal justice system than they already were, because of it; important principles like the in-court presumption of innocence become loci for debate rather than even more courageous enforcement; and everyone becomes convinced, on both the Left and the Right, that the only way to solve our broken criminal justice system is to make everybody stop being racist (or some other short-term impossibility). Which is exactly how conservatives have convinced progressives, for years, to underfund (say) public education: Why should we put money into public schools when the real problem (bad parenting) is one that public policy can't solve? Which, much like saying that individuals' racism is governing the criminal justice system without understanding what that means or looks like in a routine criminal case, is little more than a justification to do nothing. And nothing is precisely what the Zimmerman case will produce in terms of real-life criminal justice reforms, given the backwards way the case has been approached by both Left and Right media and both Left and Right Americans.
If you want to fix the criminal justice system, stop using anecdotes to advance your theories about what's wrong. Stop fetishizing individual actors in individual cases. Stop patronizing media outlets and pundits who use anecdotes to make observations about a system they've never actually researched and don't really understand other than anecdotally. Seek out those progressives who understand the system-as-system and who know, as progressives across the nation should long ago have learned, that bad cases make for draconian -- and ineffective -- criminal justice policy.
The truth is, the Left is right on crime. But the national debate on crime we have now would give you no indication whatsoever of that, and consequently it isn't worthy of a great nation. We progressives have to take the first step in doing more -- in doing better -- and unfortunately the media frenzy over the Zimmerman case is among our toughest obstacles in the long march back to political relevance on criminal justice issues. Not because of the Zimmerman verdict, but because of the destructive conversations we've allowed the case to promote.
A former public defender and a graduate of Dartmouth College, Harvard Law School, and the Iowa Writers' Workshop, Seth Abramson is the author of three collections of poetry: Thievery (University of Akron Press, forthcoming 2013), winner of the 2012 Akron Poetry Prize; Northerners (Western Michigan University Press, 2011), winner of the 2010 Green Rose Prize from New Issues Poetry & Prose; and The Suburban Ecstasies (Ghost Road Press, 2009). A contributing author to The Creative Writing MFA Handbook (Continuum, 2008), he is also Series Co-Editor for Best American Experimental Writing, whose first edition will be published by Omnidawn in 2014. Presently a doctoral candidate (ABD) in English Literature at the University of Wisconsin-Madison, he has published work in numerous magazines and anthologies, including Best New Poets (University of Virginia Press, 2008), Poetry of the Law (University of Iowa Press, 2010), Poetry, American Poetry Review, Boston Review, New American Writing, Harvard Review, AGNI, jubilat, and Colorado Review. In 2008, he was awarded the J. Howard and Barbara M.J. Wood Prize by Poetry.