Bad Apples and Poisoned Trees, by Cailin Osborne

“There are just a few bad apples.” At the university hate crime forum last week, this is instantaneous the response I received when I asked the law enforcement representatives how they were working to be more accessible to marginalized communities who have historically-rooted reasons to distrust the police, providing the example of police brutality. The response was dismissive of the histories I was referring to, as well as the possibility of any bigger, systemic issues that could be called into question. By shifting blame to a few problematic individuals, they were absolving the criminal legal system as a whole of any accountability. This, to me, was representative of the issue with hate crime laws in general: Beyond our clear inability to enact criminal justice on behalf of minority communities, these laws cover up larger systemic issues and therefore offer a solution to falsely-framed problems. I felt soberingly unsurprised by this reply. While I do enjoy playing the contrarian, and felt myself hardening from anger with every word that was uttered by our boys in blue, upon reflecting on this event I have decided to pose the challenge to myself to tap into a sense of heightened humility. I know all too well the eagerness with which those intimately wrapped up in an oppressive system try to distance themselves from the problem, and try to make it feel small, or manageable. I know because I am constantly dealing with this myself- trying to reconcile my involvement, consciously or not, with institutions that produce injustice. To simply exist as a U.S. citizen is to be complicit in a government housed on stolen land and built by slaves after a brief detour of genocidal rampage, and then celebrate it over turkey and cute little pilgrim hats. Everything we do carries the weight of the horrendous history that has paved the way for opportunities we possess today. How, then, do we go about critiquing, reforming, our even eradicating these systems while our day to day existences typically serves to maintain them? While the police officers at the forum did not seem to fully open to the conversation about institutional corruption or personal responsibility to critique those systems when involved, they did advocate for programs that would seemingly shift the role of law enforcement. While our criminal legal system was developed to serve functions such as forcing assimilation and dictating norms, these officers were suggesting community outreach programs, and other means of building relationships with people in order to more effectively serve them. As with every form of oppression, this example displays the constant tension between ideology and practical application that exists in attempting to address injustice in our criminal legal system. From an ideological standpoint, I believe that this system was founded to maintain hierarchy and breeds corruption, requiring complete abolishment and replacement with a new system. However, there are very real material constraints preventing us mischievous radicals from achieving this goal in a timely manner, if at all. Knowing this and moving forward with a sense of pragmatic optimism and fine-tuned dark humor, I believe we must acknowledge our own limitations to more effectively inform change and combat the hypocrisy that runs so deep in many of our efforts toward justice. 

Although it is treated as a secret, a lie, a misinformed opinion, our criminal legal system was developed to oppress those who stray from norms set by the most dominant group. Can you guess who? None other than your average straight, white, cisgendered, would-have-worn-a-make-america-great-again-hat-if-they-were-a-think, men. In fact, the concept of criminality in general is founded on the idea of social deviance, or the notion that there are certain norms rooted in skewed understandings of what is “natural” that dictate how people ought to behave. As if shame and social pressure toward conformity were not enough to preserve these precious ideals, I guess it also sounded like a good idea to come up with an entire system to punish people who strayed, and scare those you wanted to into submission. Why respect agency when you can scare everyone into complacency? Author Donald Hall reflects on this in “Queer Theories” relaying a Foucauldian understanding of this barbaric concept: “Mental illness and criminality are historically contingent and changing concepts, used to cords off groups of people in such a way that evolving economic and political interests are protected and advanced.” In other words, the intense pursuit of large-scale criminal punishment in this country is not rooted in nostalgia, desire for comfort, or even necessarily fear of difference. It is to maintain power and hierarchy. Shifting definitions of criminality are tailored to the shifting cultures of historically marginalized groups, but always work to deter deviance. As is graphically depicted in the movie “Two Spirits” an insightful documentary on the life and death of Fred Martinez, a young, queer, Native American, native persons who displayed behavior outside the bounds of rigid Western gender and sexual norms were thrown into pits and ravaged by war dogs. The construction of norms, and therefore deviance relative to these definitions, was used as a tool for colonialism, thus enforcing the hierarchies we know all too well today on a global scale. This tool was not used exclusively against Native Americans. In fact, some of the OG lunatic colonizers made sure to put Africans in their place, too. That is, they constructed a fictional narrative about African deviance during their time there in order to justify slavery, and other violence. As Joey Mogul articulates in “Queer Injustice,” “European audiences thought that Africans had deviant sexual practices and searched for physiological differences, such as enlarged penises and malformed female genitalia, as indications of deviant sexuality.” Thus, the guiding ideal in the format of our criminal legal system was to establish white, patriarchal, hetero and cis-normative values as natural, superior, and “normal” in order to justify caging everyone else. 

Mogul rattles off a list in this same book of the multitude of ways in which the LGBTQ+ community is criminalized, and how our criminal legal system perpetuates queer injustice. Queer individuals are criminalized simply on the basis of their gender and sexual identities. Anti-sodomy laws, sumptuary laws, and the current legality of conversion therapy are just a few examples of this. While hate crime laws and the legalization of same-sex marriage have been considered a big win by many, when put in conversation with larger systemic failures for LGBTQ community, these reforms appear to operate as a band-aid solution. Or, perhaps more accurately, a band-aid being given to a person dying of cancer. Even with these laws in place, queer folks who are victims of crime and violence are often dismissed by law enforcement, who, as Mogul indicates, utilize a “self-infliction of injury” theory, further cementing the inferior status of LGBTQ+ individuals and denying them the right to legal protection. Once in prison, the atrocities persist. Queer inmates are systematically denied access to sufficient healthcare, expression of identity, and are exposed to disproportionate sexual violence. This is why more radical solutions must be proposed and strived for if we want all communities to not only survive, but thrive. Allowing for the development community-based protection programs tailored to the unique needs of individual communities and opting for a transition toward restorative justice approach and away from our current punitive system are just a couple of proposed ways to accomplish this. However, knowing that this sort of change is a painstakingly slow process, many members and allies of the queer community propose mixed solutions, offering ideas for reform with an eye toward subversion. For example, blogger Christina Bilbert of the Coalition for Juvenile Justice urges readers to “Encourage policymakers and advocates to promote fair and equitable treatment for all individuals in the juvenile and criminal justice systems, through promoting and supporting training and technical assistance regarding this population, increasing alternatives to detention, and supporting passage of legislation such as the long overdue reauthorization of the Juvenile Justice and Delinquency Prevention Act.” By pushing for secured access to legal protection now and paving the way for alternative systems to thrive, we could ideally grow into a new understanding of crime with more progressive systems to follow. 

When it comes to critiquing the criminal legal system for criminalizing queer bodies, fact is on our side. However, particularly in the time of media excess and “fake news” that we are bound by, fact is not always enough. Narratives are powerful, particularly when posed by those already possessing power. To shift the state of affairs, we need to shift the narrative in a big way. We need the truths of queer persons to be heard. We need to understand that when it comes to these colossal failures, it is not one bad apple, but rather a poisoned tree that needs to be extracted by the roots. For now, though, we must reap what we so and be stuck with the fruits of our soiled seeds Reform is the medicine we begrudgingly ingest to deter impending illness- we need it until we find a new way to sustain ourselves, until we get over the fear of getting down in the dirt and rip that shit up. In the long run, there is no other option.