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Making Policy with the Moral Amendment: Assessing the Defund Campaign

Disclaimer: Posts are solely the views of the author and do not represent the views of Brandeis University or The Institute on Assets and Social Policy.

The killing of George Floyd and Breonna Taylor has precipitated a sequence of events that many people are still trying to rationally explain. The persistence of protests and social agitation continues to confront the nation’s conscience in almost every arena of life. From sports to the halls of congress, concern for the moral legitimacy of our democracy has never been more evident. While we witness the coronavirus claim the lives of citizens, friends, family, and human beings all over the globe, we also are witnessing the effects of racism and the bloodshed left in its shadow. However, the virus infecting our bodies and the virus infecting our society do share one key factor, they are both invisible. It is their invisibility that challenges our aptitude to address them adequately.

How might we adequately address this racially significant moment with policy?

            Trained physicians help us address the invisibility of the coronavirus with masks, social distancing, and regular handwashing. But we find ourselves struggling to identify individuals and practices to help us collectively address the invisibility of racism. All leaders and concerned citizens are currently confronting this dilemma. How might we adequately address this racially significant moment with policy? What social statistics would be useful? What books should we read or recommend? Should we make implicit bias training required? Should we hire more diversity inclined individuals? Should we reconsider hiring processes? Should we set quotas? Or should we just do the absolute minimum and hope things eventually settle down?

            Questions like these animate discussions everywhere in our society. While these questions are useful, they seem limited in their reading of the social situation. Society is not merely the collection of individuals, but there is a moral fabric that supports our collective conscience. Our policies and perspectives on key issues concerning race and society are not the only changes that must be reconsidered. The changes we must address represents something more substantial. We are witnessing an amendment to our moral constitution. In our moral amendment, we emphatically declare that black lives matter. The question for leaders, politicians, bureaucrats, and citizens is exactly how must we make decisions in light of this moral amendment?

            The temptation of racial incrementalism will be great. This method of policymaking will consist of small changes with close attention payed to racial reactions. The potential institutional backlash unleashed by individuals uninspired by the new racialized changes will be of key concern for the leadership. The inability to anticipate racial effects rightly concerns individuals responsible for institutional outcomes. Furthermore, American history is filled with examples of unanticipated racial effects compromising institutional stability.[i] Nevertheless, this approach fails to pass the moral legitimacy test. It fails because it offers no moral reason for its validity. It merely reaches for the previous moral constitution without the black lives matter amendment.

We must decide whether police misconduct is a sign of institutional failure that can be reformed or a sign of moral poverty that must be transformed.

            We must resist the temptation of racial incrementalism and adopt a method of racial responsibility. To illustrate this methodological approach, I will offer an analysis of the “defund the police” policy movement. My usage of the term “defund” will be read through the lens of my thesis that the moral constitution has been amended to include black lives unequivocally. I do not speak for the movement at large nor is my interpretation definitive. Rather, I offer an interpretation of what I take to be the implicit moral claims of the movement. This approach suggests viewing the defund policy proposal at three levels. At the first level, we must assess the collective challenge of policing our ascriptive moral misfits. Our ascriptive moral misfits represent those in society who we deem as beyond our moral concerns because they appear to be unsalvageable. The book that best frames this analysis historically is Khalil Muhammad’s book “The Condemnation of Blackness.”

In this book, he demonstrates the racial logic informing the creation and interpretation of crime statistics and shows how those same statistics were then used to justify our punitive practices towards blacks.[ii] In this work, the moral challenge is being raised to us on the question of whether or not we want policies to make citizens or manage criminals. History suggests that when it comes to black individuals, the nation has been morally content with merely managing and housing criminals.[iii] And while this issue is heavily influenced by racial presuppositions, the moral implications of this problem transcends race.[iv] The defund the police campaign is foremost a moral charge for the state to invest in the creation of citizens and not merely settle for the management of our historically ascriptive criminals.

            The second level suggests that our policymaking on this issue must protect our moral legitimacy. While questions concerning the militarization of police are being reconsidered, this is not sufficient in light of the moral amendment. The institution of policing must be forced to address policing culture and the legacy of police brutality against blacks specifically.[v] Arguments about where funds should go is definitely an important conversation, but where resources “should” go is not the only moral issue at hand. The moral question of legitimacy must be engaged critically.

Assuredly, we must decide whether police misconduct is a sign of institutional failure that can be reformed or a sign of moral poverty that must be transformed.

The moral amendment takes seriously the moral legitimacy of the criminal justice system at large.[vi] Assuredly, we must decide whether police misconduct is a sign of institutional failure that can be reformed or a sign of moral poverty that must be transformed. If the policing institution is merely suffering from institutional failure, then reform is the solution that best fits this description of the problem. New policies on the use of police force, more diversity training, and diversifying the department all seem like plausible policy recommendations. But if the moral constitution has truly been amended, the entire policing practice must accept that its previous behavior constituted moral poverty in theory. This conclusion is reached simply because the previous moral constitution governing their policy did not include the black lives amendment. A genuine reconsideration of police unions, police misconduct, unarmed police killings, police brutality, collecting a national database on police crimes committed against citizens, public exposure of police records of misconduct, and qualified immunity must be required in light of the moral amendment.

The last level suggests that our policymaking must posit our best moral story. Ronald Dworkin prescribes an interpretive way forward that takes seriously our collective moral responsibilities.[vii] Emile Durkheim shares a similar insight into the way our essential elements of rational capacities emerge from our collective moral commitments and convictions.[viii] Without reconstructing their powerful arguments, I simply suggest that our best moral story must be created by visionaries who give great attention to the invisible moral thread tying us together. Rogers Smith’s work is helpful here because he is struggling with this moral challenge critically.[ix] Defunding the police is not a message of hate or retroactive aggression towards all police officers. Defunding the police is best interpreted as a moral challenge to reimagine citizenship in light of our moral constitution being amended.

By Rev. Jarvis F. Williams, MDiv., PhD Candidate

[i] Ogletree, C. J. (2004). All deliberate speed: Reflections on the first half century of Brown v. Board of Education. New York: WW Norton & Company.

[ii] Muhammad, K. G. (2019). The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, With a New Preface. Cambridge, MA: Harvard University Press.

[iii] See: Alexander, M. (2020). The new Jim Crow: Mass incarceration in the age of colorblindness. New York: The New Press.; Hinton, E. (2016). From the war on poverty to the war on crime: The making of mass incarceration in America. Cambridge, MA: Harvard University Press.; Murakawa, N. (2014). New York: Oxford University Press.; Tonry, M. (1995). Malign neglect: Race, crime, and punishment in America. New York: Oxford University Press.

[iv] Forman Jr, J. (2017). Locking up our own: Crime and punishment in Black America. New York: Farrar, Straus and Giroux.; Fortner, M. J. (2015). Black silent majority: The Rockefeller drug laws and the politics of punishment. Cambridge, MA: Harvard University Press.

[v] See: Alexander, M. (2020). The new Jim Crow: Mass incarceration in the age of colorblindness. New York: The New Press.; Balto, S. (2019). Occupied Territory: Policing Black Chicago from Red Summer to Black Power. Chapel Hill: UNC Press Books.; Cazenave, N. A. (2018). Killing African Americans: Police and vigilante violence as a racial control mechanism. New York: Routledge.; Epp, C. R., Maynard-Moody, S., & Haider-Markel, D. P. (2014). Pulled over: How police stops define race and citizenship. Chicago: University of Chicago Press.

[vi] See: Butler, P. (2015). The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform. Georgetown Law Journal, 104(6), 1419-1478.

[vii] See: Dworkin, R. (2011). Justice for hedgehogs. Cambridge, MA: Harvard University Press.

[viii] See: Nisbet, R. A. (1993). The sociological tradition. Transaction publishers.

[ix] See: Smith, R. M. (2003). Stories of peoplehood: The politics and morals of political membership. New York: Cambridge University Press.