Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR MARK BRODIN
The Michael and Helen Lee Distinguished Scholar at Boston College, Brodin has written extensively on constitutional criminal procedure, civil procedure, and civil rights. Among his recent works are “The Boston Lawyers’ Committee for Civil Rights Under Law: The First Fifty Years” in Massachusetts Law Review, and “The Murder of Black Males in a World of Non-Accountability: The Surreal Trial of George Zimmermann for the Killing of Trayvon Martin” appears in the Wiley A. Branton Symposium Issue of the Howard Law Journal.
What has the coronavirus pandemic revealed about the strengths and weaknesses of our understanding of criminal justice and the system that supports it? The pandemic has put on the front pages a long recognized but largely ignored reality: mass incarceration at a rate and number unknown in the rest of the world. Years of “law and order” politics, dating at least to Richard Nixon (the second most law-breaking president in our history), has required being “tough on crime” as a qualification for holding office. This has been a bipartisan effort, with Democrat Bill Clinton leading the way.
Mass incarceration of minorities (often for non-violent offenses), dubbed “The New Jim Crow” in Michele Alexander’s masterwork, has decimated poor communities, destroyed families, and placed disproportionate numbers of people of color on the relentless school-to-prison pipeline. Race and class permeate every level of the criminal justice system, from arrest to sentencing.
What short- and long-term opportunities do you see arising from the pandemic for improving how we define and deliver justice? Rethinking knee-jerk imprisoning, for lengths of time unheard of elsewhere, without even the pretense of rehabilitation, job training, or preparation for reentry into society, must be at the top of the list. Provision of skilled and resourced public counsel is up there, too. As Stephen Bright, the inspirational defender of capital cases, puts it, “It’s far better to be rich and guilty than to be poor and innocent in our perverted system.”
3) What is your vision for a post-pandemic world: What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? The starting point is living up to the promise of democracy. The disastrous Citizens United decision must be overturned, gerrymandering controlled, and voter suppression ended. As Lyndon Johnson recognized when he signed the Voting Rights Act in 1965, the right to vote is the one all other rights flow from. The present Supreme Court is the most hostile to universal suffrage since the days of Dred Scott, gutting the 1965 act, upholding the most obscene forms of gerrymandering, and green-lighting any voter suppression trick that comes their way. This subversion must be stopped.
Universal health care, the rule in the rest of the modern world, must become a reality here. The lesson of Tom Wolfe’s Bonfire of the Vanities, that we are only as safe as our most vulnerable and least safe fellow citizens, must finally be learned here.
The spontaneous surge of protest over George Floyd’s horrific murder by “officers of the law” gives some hope that this 400-year hate-crime spree against African Americans, finally on the political radar screen, may someday end.
Read all faculty Vision Project interviews here.