Imagining the Presence of Justice

A new project from The Atlantic focuses on efforts across the United States to move beyond the age of mass incarceration.

Over the past several decades, America has seen a startling divergence between crime and punishment. While crime rates dropped steadily from the dramatic peaks of the 1990s, the nation’s incarceration rates continued just as steadily to grow. And so, despite containing only 5 percent of the world’s population, the United States came to hold a quarter of the world’s prisoners.

We’ve covered this divergence extensively in the print and digital pages of The Atlantic, from Ta-Nehisi Coates’s landmark story on the rise of the carceral state and the devastation it wreaked on black families to Inimai Chettiar’s exploration of the many causes of the decline in crime. Among the findings that emerge most clearly from this robust, sad literature is that the factors driving both aspects of the divergence—the fall in crime, the increasing spread of punishment—are highly complex. Despite dawning awareness of the deep social and economic costs of mass incarceration, no one-size-fits-all solution exists to change this picture. Rolling back mass incarceration while protecting public safety will require a legion of efforts in thousands of prosecutors’ offices, police departments, parole boards, and legislative chambers. "What we have is not a system at all,” as Fordham University’s John Pfaff told The Atlantic's Matt Ford, "but a patchwork of competing bureaucracies with different constituencies, different incentives, who oftentimes might have similar political ideologies, but very different goals and very different pressures on them.”

“The Presence of Justice,” a new project from The Atlantic, is our effort to cover the evolution of criminal justice in America with a heightened focus on the different systems and approaches developing all over the nation. In collaboration with reporters across the country, we’ll highlight local initiatives that merit national attention, and talk with experts about where and how lessons from states and municipalities can be applied more broadly. We’ll look at where the carceral state has spread beyond merely responding to crime, examine the time people spend behind bars without having been convicted, and explore how cities can depend on police to collect fines and fees from their poorest residents to make up for too little tax revenue.

The title of the project comes from Martin Luther King Jr., who included the phrase in his famous letter from Birmingham jail. That context is worth understanding for the challenge the letter poses to us today, as America struggles to reconcile the need for public safety with the moral imperative of justice.

In the letter, King was responding to a group of Birmingham clergymen. They’d argued that law and order were under threat from black citizens who insisted on doing things like sitting at restaurant counters and kneeling in white churches, in defiance of signs telling them they couldn’t. To the clergymen, the protesters’ insistence on confrontation and their unwillingness to parley with the powers-that-be for the right to buy lunch, however “technically peaceful," constituted an abrogation of law and order. "When rights are consistently denied,” the clergymen wrote, "a cause should be pressed in the courts and in negotiations among local leaders, and not in the streets.”

The powers-that-be had sought and won a court injunction to forbid the troublemakers from kneeling and sitting and walking, and yet the troublemakers kneeled and sat and walked. Some of them, including King, got thrown in jail. From his cell, King wrote the famous letter that would cleave the nation’s understanding of “law and order” right in half, arguing that the observance of an unjust law violates the moral order. "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law,” he wrote. He castigated "the white moderate, who is more devoted to ‘order' than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice."

The divergence of the past two decades could be seen as a prime example of order triumphing while justice fails. The relatively low crime rates America has experienced over the past few years, seen against the backdrop of the sprawling carceral state and the constant tally of traumatic and often fatal encounters with police, constitute at best a negative peace. The challenge before us is imagining how, bit by bit, jurisdictions across the country can achieve something positive and precious in its stead: the presence of justice.

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