BEYOND PASSING JUDGMENT
Hal Pepinsky, firstname.lastname@example.org, “peacemaking” at pepinsky.blogspot.com
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