The phrase ‘criminal justice system’ has to go
The pathway to justice does not pass through criminality
IT IS BECOMING increasingly clear that we, as a nation, have arrived at a crossroads. Between the coronavirus and the private and state-sanctioned lynchings of Ahmaud Arbery and George Floyd sandwiched around the white lives matter moment of Amy Cooper, we seem to be approaching a reckoning of sorts. That reckoning will be essential if we are to move forward from this place of pain and anguish.
And any such movement will certainly require deep and broad reflection and action. An essential aspect of our reckoning will be interrogating the language we use to describe the social forces we confront. For several years I have been advocating that we eliminate the term “criminal justice system” from our lexicon. It is a term fraught with powerful negative associations and one that corrupts the meaning of justice. It is difficult, if not impossible, to imagine a system that begins with “criminal” as a pathway to anything but criminalization.
As with breaking any habit, withdrawing from “criminal justice” can be painful. It is, after all, accepted as a term of trade. The phrase is used to capture a whole range of activities from policing to prosecution, from charging to conviction, from trial to sentencing and (mass) incarceration. On the front end it captures police, bail, prosecutors, defense attorneys, judges. On the back end, it describes all who function within prisons, parole, probation. This is not an exhaustive list, but it makes the point: however dysfunctional it may be, it certainly has enough components to look like a system. But, let’s call that system what it is: a law enforcement system.
“Criminal justice” is a useful shorthand, some say, but we must abandon such illusory devices whose familiarity makes them so comfortable. While the number of components may form a system and may even all work toward a particular end, is that end justice? It’s the inextricable link between criminal and justice that gets me, as if you can’t have one without the other. The most disturbing and dangerous problem with this lexical conjoining, however, is that it reinforces an association between race and criminality.
There is ample evidence—anecdotal, qualitiative, and quantitative—to suggest that we harbor strong, arguably impermeable, associations, often triggered without conscious awareness, between race and criminality. When we use the term criminal we activate this association; such that when we speak about “criminal justice” many listeners “see” people of color. Of course those of us who work in the field realize this system does focus on people of color; that it is designed to do so. Why then, do we continue to fall prey to the phrase? Why do we, who know better, continue to use it? If our goal is to alter (rather than merely reform) the “justice system” we should take special care not to reinforce these deleterious associations through our everyday word choice. We must insist on severing justice from criminality and all the associations it carries. Only after we have done so can we consider and define justice in our own terms.
As we begin to topple or remove monuments and rename streets, let us remove the language of oppression and subjugation as well. This is far more than political correctness. It has to do with creating new openings where there have been none. Serious conversation about defunding, even abolishing, police requires different terms. New ways of seeing will require changing the way we speak and may open our vision to more possibilities. If we can liberate justice from criminality, perhaps we can focus on justice itself.
Wherever we land, let’s create our own meaning of the word “justice.” I, for one, prefer to think of justice as being made whole. It is at once active and evolving; and has at its core a notion of restoration. It draws from and conjures both legal and public health uses, pointing to expenditures and repairs. It allows us to consider a specific action or proposal in terms of its ability to make an individual or community whole. On our website, we replace the term with what we call “Safety and Healing,” which connotes a form of justice anchored in community health and well-being.If we are going to succeed in the kind of radical change we seek, we have to confront the terms we have used so readily but uncritically and replace them with terms consistent with the kind of society we want to build. We must dismantle the language of racism as well as its monuments, toppling all remaining edifices, whether written in stone or hidden in the words we use.
David J. Harris is the managing director of the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School.