CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 22, 2020

Fletcher on Race and Indigenous Political Theory

Matthew L. M. Fletcher (Michigan State University - College of Law) has posted Erasing the Thin Blue Line: An Indigenous Proposal on SSRN. Here is the abstract:
My novel claim is that there must be an accounting of how the judiciary has employed the theory of the social contract to dehumanize large swaths of poor persons and people of color. I argue that it is the judiciary, even more so than the legislatures, that has enabled and encouraged the police to engage in deep-seated injustices every single day. I will show that social contract talk is deeply embedded in judicial decisionmaking and policy articulation in the criminal justice realm.

The judiciary’s social contract talk is the language of inclusion and exclusion; either you are protected under the contract, or you are not. The judiciary’s deference to police discretion and immunization of the police from accountability has allowed the police to decide which persons are compliant or in breach of this metaphor, but with real-world, devastating consequences. On a minute-by-minute basis, instant-by-instant, the police decide who is protected and who is a threat.

Luckily, the time for judicial accountability seems right. Several state supreme courts – Alaska, California, Illinois, Maine, Massachusetts, New Jersey, Oregon, Rhode Island, Tennessee, and Washington, as well as several other individual justices of these courts and others – acknowledged their roles in facilitating racial injustice in the summer of 2020. These courts and judges seemingly stand ready to act, but they also need a roadmap for action.

The political theories of Indigenous nations could help fill the gap. Consider Anishinaabe political theory. Anishinaabe political theory is inclusive. One is “in” by default. Anishinaabe political theory is over-inclusive as well, in that everything we can perceive in the world is “in.” There is no “contract” talk. Anishinaabe political theory guarantees what social contract talk promises but fails to deliver. Moreover, the American judicial notion of a social contract unhelpfully assumes that chaos is the baseline condition because people are inherently violent and selfish. Anishinaabe political theory assumes that harmony is the baseline condition. Anishinaabe governance divides powers and responsibilities of tribal leaders. There is no winner-take-all, majority rule decisionmaking. Anishinaabe political philosophy rejects the police as mere warriors. Violence and internal security do not mix in Anishinaabe government.

Imagine a criminal justice system where a police officer conducting a well visit, who finds a person in need of assistance because of an addiction, and leads the government’s response in assisting that person, rather than criminalizing that person. Imagine a criminal justice system where the police officer who catches a thief in the act is charged with investigating the reasons behind the theft, and leads the government’s response in ensuring that the thief’s poverty is alleviated and the victim’s loss is compensated. Imagine a police department that heals as well as protects and serves.

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