Reakash Walters is a writer and criminal defence lawyer at Addario Law Group. Joshua Sealy-Harrington is an assistant professor at the Lincoln Alexander School of Law, a doctoral candidate at Columbia Law School and lawyer at Power Law.
Last week, three white men were found guilty of the murder of Ahmaud Arbery in Georgia almost two years ago. At an individual level, these convictions may provide some closure to Mr. Arbery’s loved ones. But the criminal punishment system produces profound harm for racialized people, both in the United States and Canada. And that wider perspective is necessary for demanding change not simply for Black individuals, but Black communities that are so often the victims – not victors – of criminal punishment.
Systemic racism in criminal punishment is not a uniquely American phenomenon. For example, a Black man in Toronto is almost 20 times more likely than a white person to be fatally shot by police. And Indigenous people are 30 per cent of Canada’s federal prison population, yet just 5 per cent of the general population. Criminal punishment is, fundamentally, a regime of racial social control.
Racial violence, too, is distinctly Canadian. Consider Dafonte Miller, a Black man who was blinded in Whitby, Ont., by Michael Theriault, a white off-duty Toronto police officer, with Mr. Theriault’s brother also present. And there is Gerald Stanley, who was acquitted by an all-white jury in the killing of Colten Boushie, an Indigenous man of the Cree Red Pheasant First Nation in Saskatchewan.
Canada and America differ in many ways. But themes of white fear of racialized people and how that fear translates into supposedly justified violence against Black and Indigenous communities emerge in both countries.
These comparisons help us examine the significance of events such as the conviction of Mr. Arbery’s killers. Some people consider such convictions a vindication of the justice system. But too often, these convictions are reached despite the system, not because of it.
In Mr. Arbery’s case, it was not “the system” that sought to prosecute his killers. The police officers who first arrived on the scene found Mr. Arbery alive but did not immediately tend to him, and showed little skepticism of his killers’ account. The police department delayed for months before even arresting Mr. Arbery’s killers. And district attorney Jackie Johnson, who was a prior colleague of one of the killers, has been indicted for allegedly preventing their arrest.
The prosecutor who took over the case, whose son had also been a colleague of one of the killers, claimed that the men who chased down the unarmed Mr. Arbery with their shotgun had been acting in “self defence.”
It was only when the video recording of Mr. Arbery’s lynching went viral online that the men were finally arrested. In other words, it was not the system, but the public, that demanded an investigation of this recorded killing.
The system in Canada also routinely resists meaningful investigation of violence against racialized communities. This was recently revealed in Mr. Miller’s case, in which Toronto police failed to notify the Special Investigations Unit about the off-duty officer who blinded Mr. Miller. (A unit, we add, that, by design, fails to provide meaningful oversight of policing regardless).
In any event, the idea that criminal punishment promotes substantive justice exists mostly in our imagination.
Ask any mother, any parent and they would tell you they would rather their child remain nameless and safe than a rallying cry for Black liberation. Mr. Arbery joins the ranks of Black folk who are famous and dead. Mr. Arbery became part of our public consciousness and the object of our symbolic rage two months after he was lynched, and his death was ignored and justified by the very systems that purport to protect us.
After initially neglecting to investigate and prosecute Mr. Arbery’s murderers, the state then spun the narrative to distract from its original apathy. The prosecution appeased collective resistance and suspicion from Black communities by staging a spectacle for the public to perform rage at white supremacist violence.
The trial of Mr. Arbery’s killers was a place where Black pain and white guilt could converge. We could all agree that the three defendants were Very Bad Men who must be punished, and the state suspended our disbelief for that much longer – convincing us that courtrooms are in fact where justice is doled out.
Civil rights lawyer Ben Crump spoke on behalf of Mr. Arbery’s family in the wake of the guilty verdicts, saying, “Today is not one for celebration; it is one for reflection.” Our feelings of relief after the conviction of three white men caught on camera lynching a Black man point to deep cynicism of the criminal legal system.
In The New York Times, Charles Blow described the verdict as a “shooting star that streaks across the night sky.” The bright, fleeting illumination reminds us how well our eyes have adjusted to the dark. Our delight at the bare minimum only indicates how low our expectations are of the criminal punishment system and how rarely it delivers any semblance of “justice.”
The same question emerges in the wake of the conviction of Mr. Arbery’s killers that loomed after Mr. Theriault’s conviction for his beating of Mr. Miller: Are Black folk any safer from white violence after criminal convictions are entered? The answer must be no. Criminalization and punishment do not make our communities safer. Canada’s own Supreme Court has its doubts about whether incarceration as punishment deters future, similar crimes.
More important, though, is how the resources poured into criminal punishment deplete what could otherwise be invested in Black communities to provide us with real, not imagined, safety. Indeed, the same indifference toward Black suffering that animated former district attorney Ms. Johnson’s decision not to prosecute Mr. Arbery’s killers animates government policy that marginalizes Black and Indigenous communities. Decisions to fund police in schools rather than robust art programs, to encourage the gentrification of low-income neighbourhoods or to invest billions into policing rather than affordable transit – these decisions cement systemic inequality and intergenerational poverty in Black, migrant and other marginalized communities.
We sincerely hope Mr. Arbery’s family finds relief, rest and the space to grieve after fighting for the life of their loved one to be recognized as sacred. But our work must be to transform our material conditions to ensure that Black and otherwise marginalized people are safe from white supremacist violence and set up to flourish. The reactive and unpredictable arm of the criminal punishment system can no longer satiate our desire for pro-active and substantive justice and freedom.
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