by Steve Timmer

Aug 1, 2021, 11:00 AM

Stephen B. Young’s excellent adventure

Back when I was practicing, clients or friends would (not infrequently) ask if I could get them out of jury duty. It was flattering, I suppose, but I always said that first, I couldn’t get them out of it, and second, I wouldn’t if I could. Providing testimony when you are a witness and sitting on juries are burdens of citizenship that shouldn’t be shirked.

I was called to jury service a few times, but I was always “deselected.” Voir dire is really juror deselection, not selection. It’s a game of attrition, and lawyers are almost always deselected. Stephen B. Young (a lawyer by training) sat on a Ramsey County jury recently, though, and he wrote about it in the Strib. It confirmed his faith in the legal system.

In summary, the all-white jury that Young was on convicted a Hispanic defendant on only one of two counts of criminal sexual conduct! From this slender reed, Young wants us to infer – what does he want us to infer? – that:

In short, I saw my ordinary fellow citizens [and he goes out of the way to explain how ordinary they were, at least to him] strive to live up to the highest ideal of the rule of law, to deliver the kind of justice that lies at the heart of the American experiment [the American experiment?] in ordered liberty [that is, one liberty for the proles and another for the toffs], what Henry de Bracton called in Latin back at the dawn of the Common Law in England: Non sub homine sed sub deo et lege — “Not under persons but under God and the Law.”

There is a lot to unpack there. But his last two paragraphs telegraph what he’s got in mind:

We have heard insistently this past year from advocates of wokeness and critical race theory that objectivity and neutrality are impossibilities, just spurious “whiteness.”

In the example of my fellow Ramsey County jurors, our judge, prosecutor and defense attorney, I saw otherwise.

I like the jury system myself; it much better than the inquisitional system in civil law countries. (Well, not bright lights and rubber hoses inquisitional, but one in which the magistrate is an active participant in the investigation; the role of counsel is circumscribed, and there is no jury. If you are a defendant and have a crusading magistrate, it’s a problem.) Former Chief Judge of the U.S. District of Minnesota James Rosenbaum put it better than I could in an op-ed in the Strib recently.

But to me, claiming that a POC defendant batting .500 with an all-white jury is evidence that all is well with the criminal justice system is, well, baloney:

The United States criminal justice system is the largest in the world. At yearend 2015, over 6.7 million individuals were under some form of correctional control in the United States, including 2.2 million incarcerated in federal, state, or local prisons and jails. The U.S. is a world leader in its rate of incarceration, dwarfing the rate of nearly every other nation.

Such broad statistics mask the racial disparity that pervades the U.S. criminal justice system, and for African Americans in particular. African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences. African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely. As of 2001, one of every three black boys born in that year could expect to go to prison in his lifetime, as could one of every six Latinos—compared to one of every seventeen white boys. Racial and ethnic disparities among women are less substantial than among men but remain prevalent.

The source of such disparities is deeper and more systemic than explicit racial discrimination. [emphasis added] The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color. The wealthy can access a vigorous adversary system replete with constitutional protections for defendants. Yet the experiences of poor and minority defendants within the criminal justice system often differ substantially from that model due to a number of factors, each of which contributes to the overrepresentation of such individuals in the system. [emphasis added] As former Georgetown Law Professor David Cole states in his book No Equal Justice . . .

The quote is a great description of systemic racism.

The only person I know who is half as good as Young at taking an single questionable anecdote and turning it into Universal Truth is Katherine Kersten. In fact, I once called Stephen Young Katherine Kersten in drag. Turning a speck into an ideological mountain is a feature of a lot of conservative writing, well described by Richard Hofstader in his Harper’s article The Paranoid Style of American Politics (November, 1964).

When people such as Young or Kersten start waxing eloquent about western civilization, English common law (especially in Latin), the American experiment, or bemoan the fact that the dirty hippies in the ‘60s brought the ruination of the country upon us (see the first link in the paragraph above), it is time to set your bullshit detector to maximum sensitivity.

As the Sentencing Project quote above makes clear, bias and prejudice are baked systemically into the criminal justice system at every step. Judges, lawyers, and even some cops will admit that in a candid moment.

It took us since about 1619 to get us into this fix, and it is going to take a lot more than pretending we’re fine now and passing laws against the teaching of critical race theory to get us out.

– o O o –

Update: Young is clearly troubled that his pinnacle of Western Civilization, the United States, might be racist. In a piece in the Strib about a year ago, he said it was Calvinism, not racism on which the country was based, heaping lavish praise on the Plymouth Colony types. I wrote about that, too, in Stephen B. Young’s Magical History Tour.

It turns out that the colonists were not merely racist; they were genocidal, too!

Update 2: It’s not about law enforcement, but here’s a good article from The New Republic about how education was wired white-centric from the beginning and about recent panicked efforts around the country, including in Iowa, to prohibit the teaching of critical race theory.

American Education Is Founded on White Race Theory