A Beacon of Light

. May 17, 2019.

James Bell speaks about systemic racism in our criminal justice system

James Bell is a legal justice advocate who has spent decades as an attorney and activist. He is set to be the keynote speaker at the 2019 Access to Justice Awards Dinner, where he’ll talk about the way the legal system is structured, and how inequities can be addressed by our communities to reduce mass incarceration. During our interview with Bell, he discussed how we shouldn’t turn a blind eye to injustice just because we’d rather not know what’s going on. His research of courts all over the world, along with his experience in the U.S., has taught him that there are other ways of addressing the implicit biases embedded in our society and judicial system, particularly when it comes to the incarceration of young people.

Since 1978 you’ve worked all over the world helping incarcerated youth. What brought you to this cause? Or rather, what were your earliest realizations that not everyone receives the same treatment when it comes to criminal justice?

The earliest was the situation that essentially sent me to think about law school; a friend of mine from high school was really unfairly treated by the justice system. It’s just instinct because when you’re young you don’t know. When I went to college and started learning more— and clearly there wasn’t as much information then as there is now— I thought that when I went to law school I could make a difference. It was just observations of the treatment of friends of mine in high school, differences in treatment when the police were called at parties. Things like that.

You’ve done a lot of traveling in your work— to Kenya, South Africa, France, and many other countries. What contrasts do you see between the incarceration of youth in these places versus what we have in the U.S.?

I started looking at these systems when I got my first job and I actually got a paycheck. I said, “I’m actually going to go on a vacation.” It was my first vacation during my first job out of law school. The offices I worked for didn’t do any international work, but I found that it was extremely easy to meet with judges and lawyers who were more than happy to meet with someone who did what they did in another country. So it became a thing: every place where I went on vacation, I took half a day to meet with someone who does this kind of work. That’s how that started. It evolved to getting invited to conferences.

What I’ve found that’s much different is the inquisitorial system versus the adversarial system, wherein so many countries in Europe that have been influenced by the European courts. It’s an inquisitorial system, where you are not having to go through the adversarial system like we have here. It’s also a notion that children aren’t as culpable in the same way we feel like children are as culpable.

I was just at the House of Lords a year and a half ago speaking there, and I’ve been doing work in Holland, and I went to Norway to visit their prisons. I would say that the largest distinction about these countries is that none of those places have 300 million guns. Just our sense of safety is very different when you have teenagers and weapons. That’s a mix that, if those countries had teenagers with access to weapons the way we do, it might be different. The notions of safety are just different; therefore, the notion of children’s culpability is different.

We know that if you are 13 to 17 years old, no matter where you are in the world, you’re probably doing the same thing. It’s just the access to lethality that is different in these places.

Would you say that in some ways in the U.S. we are driven by fear because of that?

Totally. I would say that we are more driven by fear than what we know about adolescent development and adolescent neuroscience. The fear has taken over science.

Can you explain what you mean by adversarial versus inquisitorial?

Essentially, if you were to look at the United States, we would lead the world in due process. Suppression of evidence, the fourth amendment, in terms of searches and seizures….we have volumes of case law about the procedure. The reason we have so much about due process is that we have significant punishment. Our punishment is harsher than a lot of other places as well. We would be seen as a beacon for all the trial procedures. There are these protections on paper.

We incarcerate for longer periods of time, so we have all this due process before we do that. Other countries don’t have the adversarial system because they’re not incarcerating for as long a period of time, and they have other things that they do. Essentially, in the inquisitorial system, there will be three fact-finders that will basically ask you questions about what happened, but also about your life and what’s going on at home. The bottom line is, it isn’t about whether you did it or not, it’s that we need to do something about you anyway. Clearly, there’s something going on that needs attention. So with the inquisitorial system, it’s not so much about punishment, but what should we do that this won’t happen again. In our adversarial system, the only way we’re going to make sure it doesn’t happen again is we’re going to lock you up and hope that when you get out something about being locked up fixes you.

When I was in Norway, the reason they say their prisons aren’t punitive like ours is because it doesn’t work. They want these people to not re-offend, and putting them in what is a typical U.S. prison setting, congregate care, where you’re putting a bunch of people in one place that have done crimes— the data shows and evidence shows that it just doesn’t work. But, if you have a society that feels like yes, but I’m getting my just desserts – they did something to me and I’m going to put them in there to punish them…it might make you feel like you got some kind of retribution but everything we know about criminal justice shows that when they get out, rarely are they better. Our assumption is that the time in jail will fix you, or if it doesn’t, we’ll feel better because we made you suffer.

In these inquisitorial countries, they know this doesn’t work. What can we do with you to make sure you don’t do this again?

Once again, those countries don’t have as many people with guns walking on the street, and the kind of mental health issues we have here. When you add all that together as a society, this is the system we’ve constructed in order to feel safe. Although, when you poll people, it’s not like they feel much safer. They don’t trust the system a lot, but we haven’t envisioned another one. And that’s what I talk about. How do we make a system that keeps us safe and not in such a punitive way?

If your child misbehaves, you have a range of things you could pull out of your tool kit to try to discipline them; you don’t just sit them in a closet.

If I just label you as a criminal, all of those complexities just go out the window because who you are as a person has just been taken away. You are now defined by what you did. Unless, in our country, you’re very rich or very famous and society has a very good impression of you. No one is going to identify Martha Stewart as a criminal. They’re going to see her as a whole person, and she broke the law. We feel we know her in a way, so she’s not defined by that act. She made a mistake— she’s not “that criminal.” Most people would become defined by that act. In the other systems, just because you committed that crime, it doesn’t make your complexities as a person go away.

I read a quote of yours where you said, “Kids of color are swooped into it [the system], and white kids are bounced out, where there is Velcro sticking to us, and Teflon is letting them go. We want to see where those points are.” Where do you think those points are— the break between what happens to incarcerated juveniles based on race?

We measure the decision points. We can’t measure who the citizens are that are calling the law enforcement on kids. Where we can start is the point of arrest because that’s where the bureaucracy begins to collect data.

If you want to go before that point of arrest, you can look at schools in the United States. They’re highly segregated, even 60 years after Brown versus Board of Education. Where we live in America and where we send our kids to school are as segregated as they’ve ever been in this country after Brown.

In schools, suspensions and expulsions are disproportionately given to kids of color for the same behavior. In every decision point that brings a kid closer to incarceration, what happens to kids of color is disproportionate. Once arrested, they go to a youth center, and that’s another place where white kids get bounced out. Research has shown that people often think white kids are more innocent and less likely to have committed these crimes than blacks, Native Americans, or brown kids. At each point, white kids are given more of a pass.

What I hasten to say when people hear this is that this is not because the people making decisions are overtly racist. Many are people of color. My position is that they’re stuck in a structure in the United States that makes those decisions seem correct because of the structural racism of the society at large.

All your experiences— what you know and what you see — are in your proximity. If you don’t live near people that you’re making decisions about every day and you don’t know much about their lives, then it’s in the air you breath. We may sit in the break room and talk, but do our kids play together? Do they come to birthday parties? Do we go to church together? Do we know each other? The answer in most instances is absolutely not. We pass each other, but we don’t know each other; therefore, we make assumptions. We tell stories about people because we don’t know enough that is based in reality about them.

You can hear James Bell’s keynote address at 6pm on Tuesday, May 21 at The Pinnacle (1772 Indian Wood Circle, Maumee). For more event information, visit ablelaw.org.