By Justin Jennings, author of Finding Fairness: From Pleistocene Foragers to Contemporary Capitalists

This book is available at a discount price and free shipping through February 1, 2021. Order here and use code CHUA21 at checkout.

George Floyd, Eric Garner, Michael Brown, and Breonna Taylor—just some of the Black lives lost in recent police encounters. Regrettably, my city of Toronto has its own entries to this list, including when Regis Korchinski-Paquet fell from a balcony in May of 2020. As with many of these deaths, the details of the encounters were hotly contested. The investigative report released that August absolved the police of criminal responsibility, but nonetheless shined light on inadequacies in Canada’s criminal justice system. The calls for reform continued, as they did across the world: “No justice, no peace.”

Deaths like those of Korchinski-Paquet have made me think more about the police brutality, systemic racism, and mass incarceration that have shaped the Black experience in North America. At their core, movements like Black Lives Matter are about equity, suggesting that roadblocks to Black success are baked into contemporary institutions. Criminal justice is among those institutions, and is sometimes seen as so fatally flawed that justice cannot be served. Trust has eroded to such a degree that one’s view of what happened to someone like Korchinski-Paquet can become a matter of belief. Do the police tell you the truth?

I have spent the last few years investigating fairness in the archaeological record in the hope of understanding one of life’s terrible paradoxes. Humans, unlike any other animal, appear to be hard-wired for equity. In study after study, we are eager to reward people for their work and are hurt when our work is not properly compensated. Physiologically, we even feel good when giving to others. This universal desire for fairness, however, can be hard to jibe with many of the societies that have emerged over the last 20,000 years of history. All too often, groups of people within these societies are marginalized, looked down upon, and saddled with such burdens that it becomes impossible to thrive. Although unique in its details, the Black experience in North America can be therefore related to what has happened before. From these general patterns, we can better understand how a deeply flawed criminal justice system could emerge and the possible ways that it might be effectively reformed.

In the limited space that remains, I want to focus on a human universal, homophily, and how it relates to current criminal justice concerns. Homophily is the tendency of individuals to associate with those who share similar traits. It’s the old adage that “birds of a feather flock together,” and indeed many animals exhibit some degree of homophily. Humans are strongly homophilic, tending to seek out people like themselves to complete tasks and trusting that they will do so in a manner beneficial to the group. Importantly, people are quite flexible in these decisions on likeness—it can be based on faith, occupation, or the shared love of a sports team—but race and ethnicity is a common distinction made. This research thus suggests that while it’s difficult for people to be truly “color-blind,” it’s certainly possible to make lasting associations based on other criteria.

Homophily relates to fairness because expectations for fairness are far stronger within groups. There is an expectation that group members will take care of their own, and, often, a desire to take advantage of outsiders. Soon after the end of the last Ice Age, we see people investing in rock art, burials, and houses to, at least in part, distinguish insiders from outsiders. As societies grew larger and more complex, sub-classes of people were introduced that were often marked as different through clothing, tattoos, and other mechanisms. These sub-classes were categorized as the “Other,” distinct groups who did not need to be treated fairly by those in power. By making them outsiders, the group could be exploited.

The origins of police forces in North America can be traced to the laws in the United States that required those who escaped from slavery to be returned to their former “masters.” The criminal justice system is therefore rooted in a radical Othering of Black bodies—recall the Dred Scott decision that determined that enslaved persons would count as 3/5ths of a person for the purposes of representation and taxation—that has continued to shape aspects of this system more than 150 years after the Civil War. If the trajectories of past societies can serve as a guide, there is nonetheless hope for reform. One of the challenges will be how to make changes in a way that effectively extends group boundaries beyond racial and ethnic divisions. Justice for George Floyd, Eric Garner, Michael Brown, Breonna Taylor, and Regis Korchinski-Paquet is very much about reforms specific to federal, state, and provincial criminal justice systems. Yet the appetite to make these reforms will come by channeling our innate desire for within-group equity and trust towards these efforts.

Justin Jennings is senior curator of Latin American archaeology at the Royal Ontario Museum, as well as associate professor of anthropology at the University of Toronto. His many books include Finding Fairness: From Pleistocene Foragers to Contemporary Capitalists, Quilcapampa: A Wari Enclave in Southern Peru, and Drink, Power, and Society in the Andes.

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