BEYOND PASSING
JUDGMENT
July 8, 2015
In his interview on NPR’s “Fresh
Air” July 6, Temple University law professor Adam Benforado outlined the
manifold biases that permeate criminal justice decision-making, from authority
given to confessions and eyewitness descriptions and identification, through
jurors’ reaction to witness physical attractiveness, to parole board members
denying parole more consistently as their working days pass, as presented in
his book Unfair (http://www.npr.org/2015/07/06/418585084/the-new-science-behind-our-unfair-criminal-justice-system). His case for the unfairness of criminal justice
decision-making is strong.
Mr. Benforado, as educator,
argues that the more aware we become of how these biases apply to people like
ourselves, in our positions, the more we can recognize and learn to discount
them, the more we can correct for them; on this, I agree. But he implies that when biases are stripped
away, what remains is objective, without bias; and on this, I disagree.
Like Mr. Benforado, I have long
held the conviction that the very operating definitions criminologists use to
study “crime,” let alone “criminality,” are biased. For me, the conviction was rooted in my
dissertation study of police decisions to report offenses in a “high-crime”
area of Minneapolis (findings published in Journal
of Research in Crime and Delinquency 13 (Jan. 1976): 33-47; pdf available
on request). There I found that if the
dispatcher told patrol officers to check a crime, and the officers found a
complainant who alleged any offense, they reported an offense. If not, with marginal exceptions, they did
not, regardless of whether a complainant reported what constituted an
offense. Beyond what police did and did
not report, there remained the biases that students of white-collar and state
crime have described, which lead to the structural stereotype that underclass
young people (men in particular, today in white societies young men of color)
are more likely to commit crime than the rest of us.
In Stigma I1963), Erving Goffman gave voice to what I perceive to be
crucial to our sense of social security, of acceptance and appreciation,
controlling what he termed “status identification,” especially so in an individualistic
order in which status can be gained and lost in so many ways. On one hand, we depend on maintaining status,
and in which so many of us are driven by “growing”—by achieving recognition for
climbing still higher, as in “staying ahead of the economy” (which Max Weber
labeled The Protestant Ethic).
Having a sense of controlling one’s identity is crucial to one’s sense
of personal and social safety and acceptance.
As Goffman proposes, control becomes a burden, a source of fear and
anxiety, when one feels one has to pretend to something other than what one
feels one is, lest one fall from social grace.
In a safe world, as we are discovering with acceptance of same-sex
marriage, one enjoys the freedom to define oneself as one feels and aspires to become
openly, without stigma—to feel honest and true to oneself in one’s
relations. Basically, we derive our
sense of social security from being known by the identities we are permitted to
construct for ourselves.
In his seminal publication,
Harold Gafinkel had defined the problem of having one’s identity adversely
defined by others “status degradation rituals” (a foundation for his
“ethnomethodology”; American Journal of
Sociology 61 (Mar. 1956: 420-424).
Edwin Lemert later called the process of creating “secondary deviation”
“labeling.” My home fields of
criminology and criminal justice center of what makes and prevents people from
being degraded to the status of “offender.”
We intersect closely with the study and prevention of what makes people
turn out to be “mentally ill or deficient.”
What a person has done or might do defines what the person essentially
is. It implies that the person needs
removal, supervision, treatment, or punishment.
In Alice Miller’s terms, degradation implies personal failure which
demands the need to do things to lesser beings For Your Own Good if “rehabilitative” or “therapeutic,” and if
necessary—as Scandinavians put it, to deprive someone of liberty, if not life
itself. One’s record, one’s diagnosis,
one’s low grade or score, becomes the central definition of one’s identity, by
imposition rather than by choice. In
war, it becomes a matter of identifying and defeating one’s enemies. Altogether, it amounts passing judgment on
one another--the basis of the conviction that some of us are entitled to exert
power over others. It is one thing to
enjoy the satisfaction of holding or attaining a position in a social
structure; it is another to be hurt, diminished, excluded or confined by a
status that is imposed. From wealth inequality
to punishment of wrongdoers and failing schoolchildren, to assault and
homicide, to all parallel personal and structural forms of what Garfinkel calls
status degradation, with thanks to Johan Galtung, I apply the label “violence.”
My mother and father made
conscious decisions as doctoral students in psychology to learn and apply
knowledge of normality rather than “deviation” or mental illness. Although licensed, they identified themselves
as “counseling” rather than “clinical” psychologists. And so my mother, whose early research
focused on identifying conditions under which groups embraced “non-conforming”
contributions to group tasks as “productive,” bemoaned my decision to become a
criminologist, a student of deviance in “that desolate field.” My response has been to focus on the problem
of not of how to defeat or erase violence, but of how the stigmatized parts of
ourselves become transcended by appreciation and acceptance of other parts, in
relationships of mutual trust, honesty and appreciation, where the label ceases
to define one’s being. In Nils
Christie’s terms (in Limits to Pain,
1981), it is a condition of being or becoming known in many respects, rather
than as one kind of person or group member.
I question Mr. Benforado’s proposition that
awareness and compensation for our biases implies bias-free decisions. The very idea that an entire person should be
differentially treated as an “offender,” an enemy, a form of inferior being, is
a leap in logic, a fundamental bias in itself.
The bias cannot be eliminated, but it can be transcended by changing the
focus of conversation, as I attempted to do as a victim-offender mediator by
laying down a cardinal rule against name-calling, versus describing what one
had done, felt and suffered, and discussing responses until everyone in the
room had said what s/he felt needed to be said.
As a teacher, it became my challenge to “grade by not grading” students
for the quality of the substance of what they wrote about addressing problems
of violence, but addressing course material substantially and in a timely
matter in writing (finding that grammar, spelling, and clarity of expression
spontaneously improved as I responded to substance rather than evaluating how
well it was said). With (ex-)prisoners,
it has been about mutual learning and sharing based on where we are here and
now, rather than on “their offenses.”
With children, it has become a matter of learning from what they see,
feel and want as much as I seek to convey my own “wisdom” and wants to
them. All in all, I enter conflict and
differences with a bias that my job is to learn from others as I might have
them learn from me, to discover what I will do as I discover what they will
do. In myself as I find it in others, I
analogize this process of allowing redefinition of one another to the joy and
security I find in singing to harmonize with others. As a fellow mediator put it to me, building
trust and social security in the face of violence entails “trusting the
process” of letting go of one’s attachment to a definition of who’s who or
what’s what, in Roger Fisher’s terms in Getting
to Yes, from establishing positions to learning and accommodating to one
another’s interests in what comes next.
It is a process where giving and receiving empathy—understanding others
in their terms rather as one seeks to be understood in one’s own—supplants conviction
that others are essentially wrongheaded. I call that response to difference and
conflict “peacemaking.” As a response to
conflict and difference, peacemaking is an inherently subjective frame of
reference, as is defining how we respond to conflict and difference by
categorizing what we and others are. As
my mentor Les Wilkins put said of his home fields of criminology and criminal
justice and mine, we are largely stuck in the bias of defining the problem
presented by “crime” as the problem of “the criminal.” To borrow Mr. Benforado’s term, I find that
bias to be inherently unfair. Love and
peace, hal
