Recently, there was a piece in The New Yorker which called attention to a capital case from Caddo Parish in Louisiana. There are many things to like about Louisiana; there are many good people there, many fine foods, and many a fine beverage. In many ways, Louisiana contains a veritable tableau of the legacy of the Old South. The remnants of the best of the legacy shine through in Louisiana, and the worst portions of that legacy are also present.
The worst thing about this case is not that a portrait of a famous Confederate hangs on the wall, or the memorial of the flag of the Ghost of Confederates Past at the courthouse. These are emblems, to be sure, of the lionization of our ancestors who fought to maintain slavery as a benefit of the sovereignty of the states. That said, the emblems are not the problem; they are merely emblematic of the problem.
The deeper problem we find in the article is a devastating confirmation bias, an unyielding belief that whatever the evidence, it must be the case that the black man is guilty. This is no longer a matter of overt racism; the prosecutor isn’t proposing that he committed a crime because he is black. The prosecutor is willing to listen to the evidence that suggests the more likely explanation for the death of the child was illness, but not to swerve from his belief that the defendant is guilty. It helps to keep in mind that the job of a prosecutor is to get a conviction, and he would be failing to do his job if he did not try his utmost to accomplish that outcome.
His professional success hinges on putting a black man in jail for the death of the child, so he has a strong motivation to find a reason to believe in his guilt quite apart from any latent racism. While latent racism may be a factor, we do not need it to explain the prosecutor’s insistence on the defendant’s guilt any more than we need the defendant’s lack of steady employment to explain the death of the child.
That said, it is fairly clear from all the evidence I have reviewed that black folks in particular are far more likely to be convicted of crimes than white folks in the same circumstances. This is more like to be due to the fact that we often have a lower degree of empathy for those who look very different from us. To be clear, this is not a complete lack of empathy, but rather empathy to a lesser degree. Most folks feel some level of empathy and sympathy for those who look different from them, so it’s not as if we can claim that pure hatred is the likely cause of systemic injustice.
On average, we humans just don’t feel as sorry for people who don’t look like us. Unsurprisingly, this impacts the outcomes of jury trials because (for better or worse) juries often treat sympathetic defendants differently than they do those they do not view sympathetically. Looking back at slavery, it is easy to see that many white folks simply did not have the same level of empathy for their brothers and sisters with darker skin. After all, would not the same level of empathy have prevented the amount of oppression applied to the Africans brought over for their free labor and the amount of oppression applied for generations to their descendants?
Part of the value of a legal system such as we have is that it has adversarial structures and rules of evidence in place to mitigate the effects of our confirmation bias and lack of empathy. But ultimately, we human beings are administering the system, and our flaws pervade the legal system, resulting in injustice far too often. The biggest flaw, which is the lack of equal empathy, is the legacy of Confederates (and many of their Northern counterparts) visiting us in the present.
The Ghost of Confederates Present is haunting us now as a lawyer who believes that we ought to kill more often regardless of the evidence. Will we listen to him and learn from his mistakes? Or will we pretend that callous indifference is not the new hate, a somewhat lighter shade of injustice?