The Racial Subjectivity of Law

Since the formation of modern government, there has always been an unequal distribution of power. Throughout the beginning stages, government and the idea of democracy were seen as something that benefitted the people, but also as something that was of the people. However, who are the "people" that are continuously referred to in written theories and ideas about law, and whom the government protects? In this paper, I hope to research this very question in hopes of understanding the nature of law and whom it truly protects.

Can laws be applied objectively, or will there always be some bias or prejudice? Through this question, we can explore and learn about the bias and, consequently, subjectivity that has been present in law and the criminal justice system, primarily in the United States. The bias that I will be exploring will be based on the premise of race in America.

Law cannot be applied objectively because it was created with subjective reasoning to benefit those who created it, and to maintain power for similar people. This issue is essential to explore because politicians are using law and the criminal justice system to hinder the lives and say of minorities to implement their biased laws. This bias in law creates a cyclical effect in government, which hinders the abilities and potential success of one group (minorities such as members of most Black and Latino communities) to continuously promote and maintain power for another (white men). Moreover, this problem needs to be acknowledged due to racism's ever-changing nature over time. This has been shown when people were once effortlessly racist in their actions; however, that is now not acceptable which drives people to act in ways that do not seem racist yet inherently are. Hence, racism (primarily in law) has never left, just disguised in a way that makes it unrecognizable to the average person.

This subjectivity in law started in the United States when the country was founded. A starting point is John Locke's The Second Treatise of Government, particularly chapter 9, which discusses the primary functions and purposes of a government. It also talks about the natural bias of man and that he will work to benefit himself. "Well, it is plain and intelligible to all reasonable creatures; but men are biased by self-interest, as well as ignorant about the law of nature because they don't study it; and so they aren't apt to accept it as a law that will bind them if it is applied to their particular cases" (Locke, 38). This quote highlights the nature of law with two important aspects: recognition of the fact that people are flawed based on their natural bias, which Locke attributes to a lack of research, thus ignorance creating this bias. Another point that can be taken from this quote is the fact that it never discusses who is apt to run government, besides the recurring use of the word 'man'. This provokes questions about who can participate in, and who is protected by, this government which appears to only refer to 'man'. This usage excludes women at the outset, but what about other groups of people? This is where we must consider who wrote it and when it was written. John Locke was a white, educated man, far from poor, and he was speaking primarily to others like him. This writing seems to extend governmental protection only to those in similar positions to Locke, reflecting societal views at his time.

The purpose of government and the formation of a democracy in a society, according to Locke, is to protect liberties and the common good while also taking away some of the freedoms that are experienced in the “state of nature.” However, this protection of the common good only applies to those represented in government and valued members of society (i.e., white, property-owning, educated men). The reading repeatedly states the purpose of protection of property, establishing a clear distinction between the 'haves' and 'have nots.' Why is this relevant to the US government now? These are the foundations of our government in the United States. Ideas from John Locke and other philosophers were implemented into important documents such as the Constitution. This inherent bias in the foundational principles sets up a government for future bias and subjectivity.

An ongoing and still prevalent demonstration of the subjective nature of laws is the War on Drugs. Originating with President Richard Nixon in 1971 after the drug hysteria predominantly fueled by the youth in the 60s, the Nixon campaign and White House showed clear signs of racial prejudice throughout his tenure. Predictably, based on his previous statements and actions, Nixon declared a war on drugs to establish laws and punishments that disproportionately affected certain communities. Through these laws, he initiated a form of racism now known as “colorblind racism” (Alexander, 99). This subtle method of discrimination presents a seemingly non-racial issue in a manner that is inherently racist. An example of this is the term “tough on crime,” often used by politicians (primarily the Republican Party).

“Tough on crime” gives the impression of a policy beneficial to everyone. In reality, though, it's a coded way to discuss mass incarceration that disproportionately impacts minorities in the country. With similar drug use rates amongst Black and White users in this country, the incarceration statistics tell a different story: “Although the majority of illegal drug users and dealers nationwide are white, three-fourths of all people imprisoned for drug offenses have been black or Latino” (Alexander, 96-97). Politicians use the cover of colorblind racism to manipulate the criminal justice system to incarcerate minorities at higher rates. The introduction and enforcement of the war on drugs reflected colorblind racism, with harsher penalties assigned to drugs commonly used in Black and Latino communities, such as crack cocaine, compared to the less severely penalized powder cocaine often used in white communities (Alexander, 102). This is how the War on Drugs affected thousands of Americans in unfair and unjust manners. Through the use of political power, wealthy white Americans created a criminal justice system that disproportionately targeted certain communities based on the whims of a select few. This is a prime example of the subjective nature of United States laws.

Through laws and actions taken by the government, whole communities can be affected and torn apart for unjust reasons. Not only is incarceration a problem, but the issues that arise from the trials and arrests alone are also significant. People of color are imprisoned at disproportionate rates, which means they are also being arrested at disproportionate rates. Such circumstances can be just as harmful because an arrest often leads to the loss of work hours, job security, custody of children, housing, etc. Additionally, the accused might be advised to take plea deals and plead guilty, even if not, to minimize the repercussions and return to life quicker. However, this minimization often accompanies fines, fees, and parole which hinders a person economically (Alexander, 95-96). All these aspects underline the biased nature of laws. If power was not predominantly held by the white community, laws that disproportionately benefit them may not be passed.

To mitigate or eliminate the use of colorblind racism in law, it is crucial to examine its future trajectory. Technology is an ever-evolving societal entity and will continue its progression. The criminal justice system, a major component of the government, evolves and reflects societal changes at a similar rate. Jackie Wang envisions a future where the policing subset of the criminal justice system transitions from an entity that responds to crime to one that anticipates and prevents it (Wang, 42). This future policing model depends on the utilization of technology and algorithms to predict potential “threat” areas. It will use past police data and crime statistics to predict areas that are at higher risk for crime. Nonetheless, this system is not without its flaws.

In theory, technology, specifically Predpol, is seen as the unbiased solution to law enforcement and criminal justice. However, it doesn't negate the fact that people must program this technology. This is where the flaw lies: in people. As Locke stated, individuals tend to introduce bias into their work. Those programming the Predpol system can, and likely will, incorporate their biases, thus perpetuating the problem rather than solving it. Lastly, the use of past police data in the programming process falls short due to the inherent biases within past statistics. Relying on data that is the product of biased policing in certain areas will simply sustain the bias. Therefore, it does not counteract the discriminatory over-policing and incarcerations in minority areas.

To stop this form of racism in our legislative and criminal justice system, we must look to the past to see the ideas that present the problem, the present to see the implications of the problem, and the future to see how the problem can develop. With this, we can work to address and potentially fix the problem that is the subjective nature of law in the United States. The problem of laws in the United States being made by white wealthy men, for white wealthy men, has been in existence since the beginning of the country and spans every political, social, and economic topic. This issue of mass incarceration, in particular, is a problem that can be solved or at least controlled by diversity and more representative government.

With a variety of biases, it will help sway and prevent leaning towards one particular group. This can be done with the restoration of voting rights to people who have been arrested, especially on drug charges. This will help increase diversity and influence in politics because through this, we can restore the voices of Black and Latino communities that were lost due to unjust legislation, particularly during the War on Drugs. This breaks the cycle of white wealthy male representation only in government and starts a new cycle which includes the voices of more than just one type of citizen. From this solution, while the results will take a while, it does have the potential to be a more permanent resolution of the problem so that future generations could possibly live in a country with less racially biased laws.

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