Black Lives Matter Means Decarceration


It’s easy to reach for quick solutions. The scale of the protests and the horror of the police response makes the need feel immediate. And it is immediate.

But only systemic overhauls will actually unwind the injustice in the system. In this frame, let’s talk about decarceration.

One of the reasons the police wield so much power is because they are essentially the gatekeepers to the criminal system. And the criminal system currently has the power to schedule a massive, and sometimes indefinite, hold on your life.

Derek Chauvin, and the three other MPD officers, are staring up at this prospect right now. Second-degree intentional murder carries a presumptive sentence of 306 months, or 25 1/2 years. I know many of you want to bury him under the prison, but this massive number matters.

Chauvin is 44. A presumptive sentence, if he is convicted, means that he could be released in his 60s. Many people might point out that this seems hardly fair given the sentences handed out for other crimes. The disparity is obvious, and I won’t dwell on it too much. But here are some examples.

Joshua Williams, one of the Ferguson organizers, got eight years for stealing a bag of chips and lighting a trash can on fire in 2014. He’s still in prison.

Three strikes laws, still in place in many states, usually result in functional life sentences. They can be imposed for crimes such as stealing a sandwich, as in the case of Larry Dayries (who got 70 years). These laws are constitutional.

A common knee-jerk reaction is that if this is the state of criminal justice, Chauvin should be getting much worse. But focusing on that alone, rather then questioning the state of criminal justice itself, actually subverts the message of Black Lives Matter.

The whole damn system is guilty as hell, but it matters how and why.

As of 2010, there were roughly 5x as many white Americans as Black Americans, and yet the prison population was plurality-Black. This is not a system where Black lives matter. Asking for Chauvin and the other officers to receive a punishment that is consistent with this system does not solve the underlying problem. It instead props up an institution that itself needs to be overhauled, if not abolished outright.

What do long sentences actually do, anyway? First-year law school students learn that there are four theories of punishment: rehabilitation, deterrence, retribution, and incapacitation.

As it turns out, the justifications for long sentences are generally a load of crap.

We usually concede now that prisons don’t actually rehabilitate, at least by design. We’re still cutting things out of prisons that could change that. I think regularly about the line-item vetoes for educational resources in deep-blue New York.

And long sentences have been shown to have virtually no statistical correlation to deterrence, either. Deterrence is more closely linked to the likelihood of being caught than the severity of the sentence.

Retribution is, in simplified form, you do an X-level bad thing, you get an X-level bad punishment. Put another way, retributive thinking about punishment is more concerned about the relative magnitude of punishment than their absolute magnitude.

That leaves incapacitation. Lengthy prison sentences are very good at this.

But the term itself signifies that these are lives we’re throwing away. And not just any lives, but disproportionately Black lives.

And I do mean throwing away. 1 in 7 inmates is serving a life sentence. For Black inmates, that number is 1 in 5. These folks have virtually no chance (or literally no chance) to redeem themselves.

We’ve said, in no uncertain terms: You don’t matter.

So what do we do about this? Sentencing reforms are starting to take hold, and prison populations have plateaued, but there is so much more that can be done. And while we work on that, we have to work on our own ingrained biases about the criminal system too.

So yes, let’s start talking about not only abolishing the death penalty but capping sentences at 20-25 years, with only rare exceptions for public safety. Let’s talk about putting the burden on the government at parole hearings. Let’s talk about not only abolishing mandatory minimums but expanding drug treatment diversion programs to include non-drug offenses that were tied to an addiction. Let’s talk about lowering statutory maximums drastically.

But we also need to talk about the rhetoric we use along the way. And this is tough. I want Breonna Taylor’s murderers to be charged. But I don’t believe anybody should have the criminal system tell them that their life is basically over.

But here’s why I think this is important: the more we allow ourselves to use these carceral narratives, the more authority we give to the folks who wield the power of the carceral state. As I mentioned earlier, this means the police.

As an example, I think we can all agree that people who preach compliance as a way to not get shot by the police are missing the point or arguing in bad faith. But propping up disproportionately harsh sentences for other things lets people off the hook for doing so here.

In truth, I really don’t think we’ve internalized the relative magnitude of the problem of police killings. 22 death sentences were carried out by states in 2019, while 1098 people were killed by police.

Put another way, police carried out 98% of death sentences in 2019.

Honestly, we’re so far from a criminal system that focuses properly on abuses of power and seeks to understand crimes of desperation. I’ve thought about it, and I don’t honestly know what an appropriate sentence for Derek Chauvin looks like.

But whether it’s higher or lower than what I expected, I know I’ll lose way less sleep over it than over a prison sentence of any length, let alone 70 years, for somebody who steals a sandwich.

We all need mercy, we all need justice, and, perhaps, we all need some measure of unmerited grace.

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