‘This is a once-in-a-lifetime opportunity for change’

by Erin Peterson
via the Harvard Bulletin

As a deadly global pandemic hit the U.S. early this year, disproportionately impacting marginalized groups and communities of color, and profound questions of racism, racial injustice, and abuse of power were again brought into sharp focus by the killing of George Floyd and other Black people across the nation, Harvard Law faculty saw more than just one of the most difficult seasons in American history. They saw the opportunity to step up and take action.

One of the major efforts that has come from this desire to do more is a trio of series led by Harvard Law faculty. The three series—“Racial Equality?,” “Policing in America,” and “COVID-19 and the Law”—launched in September and include colloquiums, student blogs, and an array of other resources. They will continue throughout the academic year.

For 300th Anniversary University Professor Martha Minow, a former dean of Harvard Law School who is co-organizing “COVID-19 and The Law” with Clinical Professor Emily Broad Leib ’08, these series represent exactly what the school should be doing right now. “At our best, we are always engaged in three levels of education: teaching students and preparing them for the world, developing research, and doing the hands-on service delivery that our clinics and research centers do,” Minow says.

She expects the series to be vital hubs for debate and knowledge exchange at a critical moment. “Everyone feels a sense of urgency and a sense of the importance of doing this work,” she says.

We asked the organizers of these series to share how these last months have influenced their work and thinking—and what might be next. Edited excerpts from longer conversations follow.

The criminal justice system is not hermetically sealed off from our democracy. It’s central to how we understand big issues of American identity: of race, of community, of poverty, and many aspects of American history itself.

Alexandra Natapoff

Policing in America

Professors Andrew Manuel Crespo ’08 and Alexandra Natapoff organized the “Policing in America” series. The discussions examine police practices, the possibilities for reforming the American penal system, and approaches to curbing abuses of state power.

Bulletin: George Floyd’s killing was a wake-up call for many. What should we make of the moment we’re in?

Crespo: This has the potential to be a historic moment of social reckoning. Sustained protests over policing have been one of the major defining features of the summer of 2020, which has a lot of competition for defining features. People who have studied or lived within the American penal system and experienced policing firsthand are aware of many of its deep problems. But twice in the past six years, these issues have erupted into a national conversation.

Natapoff: The criminal justice system is not hermetically sealed off from our democracy or other institutions within our democracy. It’s central to how we understand big issues of American identity: of race, of community, of poverty, and many aspects of American history itself.

You can’t understand courts without understanding prosecutors, and you can’t understand prosecutors without understanding police, and you can’t understand policing without understanding how policing practices intersect with other social organizations and social policies.

Crespo: One of the classes that I teach, Criminal Procedure, is about the law of policing. In part, it’s about how our law has, over a series of decades, not lived up to the task of regulating or constraining police behavior. It’s about how some of the problems that we see are predictable consequences of a long march in the constitutional law of policing. But the second major theme of the course is that we shouldn’t expect legal rules to be enough, in themselves, to address what are fundamentally deep societal issues and interconnected issues.

Bulletin: What happened in Ferguson and with George Floyd seems to suggest we deal with the same problems over and over. Are we making progress?

Crespo: Yes, some. To take one example, a small handful of prosecutors who have won political office in recent years are using their prosecutorial discretion—which drives so much of our penal system—in ways that are intended to be decarceral. They’re saying: There are certain behaviors that we will not treat as criminal matters, even if they might violate parts of the penal code. Instead, we’ll look for other solutions, rather than policing and prison, to deal with big social problems like poverty, mental illness, and drug addiction.

Natapoff: Fifteen years ago, people were still having arguments about whether mass incarceration was a good idea. Today, we aren’t arguing that prisons are the solution to public safety. People understand that mass incarceration carries with it a profoundly expensive, ineffectual and racist legacy.

How has that shaken out? We’ve seen a wave of decriminalization of marijuana offenses. We’re seeing bail reform all over the country, because people understand that locking people up because they can’t afford to pay is unjust. There’s been pushback against the use of fines and fees.

All of these incremental changes are cause for hope.

Credit: Anthony Russo

The pandemic has jump-started what had been a slow process of using digital tools in the judicial system and for legal services for low-income people.

Martha Minow

COVID-19 and The Law

This series covers a range of law and policy topics linked to COVID-19, including health law, election law, housing and food law, and access to justice and legal innovation. The topics are particularly focused on COVID-19’s impact on marginalized populations. The co-organizers are 300th Anniversary University Professor Martha Minow and Clinical Professor of Law Emily Broad Leib, founding director of the Harvard Law School Food Law and Policy Clinic.

Bulletin: How has COVID-19 had an impact on areas linked to your own research?

Minow: A long-term interest of mine is using digital technologies to close the gaps of access to justice. For example, if someone is facing eviction, does that person have to go into a court? Can the hearing be done online? Could there be available forms or even advice online? Could legal assistance be provided, by lawyers or others?

The pandemic has jump-started what had been a slow process of using digital tools in the judicial system and for legal services for low-income people. There’s much more openness to using these tools now and inventing new techniques. Still, major inequities remain.

Broad Leib: I focus on the food system, and there are many areas that have been affected. One is food security and food access. I’ve done a lot of work on school meals, and right now we have the complication of getting kids healthy meals when many schools are closed, and food insecurity has more than doubled. Cities and rural areas are doing their best to set up multiple pickup points, but these are all things that we worked on for years with individual school districts and state education departments. Almost overnight we had to rethink all the ways that they were procuring and distributing food.

But that’s just one thing. Food is a system, and you have to understand it from the seeds going into the ground all the way to the consumer. There’s also the challenges of supporting farmers and food producers, reducing food waste and getting food donated, and helping workers at every level of the food chain—agriculture workers, workers in meat and poultry processing, and grocery store workers, for example, who have suffered some of the highest infection rates. Every single aspect of that chain has been affected by COVID-19.

What could come out of this difficult time?

Broad Leib: Within my field, people have been sounding the alarm for years. It’s an overly consolidated system, it’s inequitable, and we waste up to 40% of the food we produce. But as a result of the pandemic, many things that used to be invisible to consumers are more visible.

I hope that this will bring attention to areas that need big overhauls. For example, I’ve been pushing for the United States to create a national food strategy: What do we want from our food system? Looking forward 10 or 20 years, how can we make it more sustainable, equitable and healthy?

We know that many national strategies in the United States come out of an emergency or disaster. This may be the catalyst we need to go back to the drawing board to invest in systems that meet the needs we have—and that is just within the food system. We know this crisis will also be a catalyst for change in many areas of law and policy, and our series aims to bring these topics up and into dialogue with one another.

Minow: In some ways, all assumptions are up for grabs.

For example, there has been resistance for years to having online applications for food stamps, and those restrictions were gone almost immediately. Could there be a thoughtful approach for debt forgiveness? Could we have some permanent adjustments of student loans or small-business loans?

Our speakers are rightly giving particular attention to problems and strategies related to the pandemic’s disproportionate impact on marginalized groups. This is a once-in-a-lifetime opportunity for change if we take advantage of it.

Credit: Anthony Russo

Martin Luther King Jr. said that he’d been to the mountaintop and seen the promised land. What does it look like? … How will we know that we have reached the promised land of racial equality?

Randall Kennedy

Racial Equality?

This series examines debates over the possibility of attaining racial equality and conceptions of equality over the course of American history. It is organized by HLS Professors Randall Kennedy and Annette Gordon-Reed ’84, who is also a professor of history at Harvard University.

Bulletin: Can you tell me about that question mark in the title?

Kennedy: Everybody says they’re in favor of racial equality. But what does that mean? Martin Luther King Jr. said that he’d been to the mountaintop and seen the promised land. What does it look like? What is its topography and what are its boundaries? Are we getting closer to it? How will we know that we have reached the promised land of racial equality? What are competing conceptions of racial equality? These are some of the topics that are being addressed in this lecture series.

Gordon-Reed: We also know that there are differing definitions of racial equality. We wanted to have a series that gave students a chance to see a range of opinions about what racial equality means and how we will know when it has been achieved, if indeed it will be. 

How has George Floyd’s killing influenced the way that people think about racial equality?

Kennedy: Widespread protests against racist policing and other forms of racial injustice have put the matter of racial equality into the center of national discussion. A year ago, we would not be hearing the commissioner of the National Football League proclaiming that Black Lives Matter. A year ago we would not be witnessing Amazon and Bloomingdale’s embracing that slogan. But now they are, propelled in large part by the torrent of energy unleashed by dissidents committed to focusing public attention on the way that so many problems, from bad policing, to bad provision of medical care, to bad employment and housing policies, have an especially burdensome adverse effect upon historically oppressed racial minorities.

Gordon-Reed: His killing galvanized the world in a way that was surprising. I don’t know whether it was because so many people were sequestered at home because of the pandemic, and people had the chance to really look at what had happened. There have been videos of police killing Black people before, but this was deeply affecting people all over the world.

Does this increase in attentiveness to racial matters make you feel optimistic?

Kennedy: I’d put myself in the optimistic camp, but not with the confidence that I once had. I am an African American born in South Carolina in 1954, the year of Brown v. Board of Education. I saw the reforms of the Second Reconstruction pry open opportunities denied to my forebears. I thought that there were certain fundamental tenets of anti-racism that had been established and were beyond disputation. I thought that the country would never again be headed by an overtly racist president. I obviously erred and feel tremendously unsettled by my misjudgment. My angst and curiosity have fueled my desire to join with Professor Annette Gordon-Reed in organizing this series of lectures.

Gordon-Reed: Well, I prefer to be optimistic. This is a crazy time, a particularly crazy year, but seeing people all over the world marching under “Black Lives Matter” banners suggests that a critical mass of people have decided that things should change. That’s a critical first step—to get people to pay attention and begin to talk about the importance of confirming Black citizenship in the United States.