How can we solve the moral problem of indigenous deaths in custody? - ABC Religion & Ethics

Australia Broadcast Center

2 days ago

There is near universal agreement that the deaths in custody of Aboriginal and Torres Strait Islander people are a shocking outrage. But repeated expressions of shock and outrage are of little use if people keep dying.
I want to offer a philosophical diagnosis that makes clear why these failures are systemic. They cannot be fixed by cultural sensitivity training for individuals working in the justice system. Some individuals are at fault, but they aren't the real problem. The system is at fault, especially when it promulgates 'tough on crime' crackdowns on crime waves. In a broken system, even good people doing their best can find beneficent intentions come to nothing — or even make things worse.
Philosophy has a long tradition of thought experiments that place individuals in morally terrible circumstances. One famous example was advanced in a 1965 paper by the Australian philosopher H.J. McCloskey. It was published at the height of the civil rights debates in the United States and involves an imagined sheriff in a Southern town who must decide whether to frame an innocent black man in order to prevent mob violence or social unrest.
The following thought experiment updates this approach to expose how even well-intentioned individuals may be powerless, or even complicit, in an unjust system. This deliberately inverted scenario draws on the stereotype of the racist cop — not to trivialise injustice, but to make visible how systems entangle even those who aim to rectify injustice.
The reverse-racist cop
Frank is the moral mirror image of the stereotypically racist cop. He is committed to correcting historical harms suffered by First Nations peoples. To balance the scales of justice, Frank decides to be especially tough on crime committed by wealthy people of European descent.
Determined to redress what he sees as a long history of disproportionately punishing indigenous people for minor infractions, Frank targets white-collar offences like corporate tax evasion. He petitions his superiors for drone technology to track expensive cars exceeding the speed limit. Once suspects are detained, he resolves to make no effort to accommodate their emotional or cultural needs.
His colleagues caution him that two wrongs don't make a right. Frank understands that many of those he arrests have legitimate grievances. But he replies that even the best judicial systems sometimes treat individuals unfairly. His dominant concern is fairness between peoples , not fairness to individuals .
However, Frank's new approach coincides with politicians' announcement of a law-and-order crackdown. During such crackdowns, police don't simply pursue justice. They go where politicians and voters want them. The people Frank wishes to target have taken the hint and avoid the areas now labelled as 'crime ridden'. Frank would love to report that there is no crime to pursue. But his is a reported high-crime area during a politically designated crime wave.
Needing arrests to prove he's doing his job, Frank finds himself, despite his intentions, arresting the usual suspects for the usual kinds of crimes.
I don't mean to morally endorse Frank's policy. It is simply wrong to consign to solitary confinement a Porsche driver for wilfully travelling at 60 in a 50 zone. The thought experiment shows that the system has a biased view about which kinds of crimes to punish and which to tolerate. Its purpose is to illuminate how even those determined to correct historical harms can be thwarted by flawed systems.
The thought experiment isn't meant to be an empirically accurate description of policing in Australia. But that shouldn't matter. Consider Judith Jarvis Thomson's famous story about an individual hooked up to a sick violinist for nine months. Her scenario carried a moral lesson that paid little regard to the biological specifics of pregnancy or abortion.
Populist politicians understand that identifying specific individuals who have committed terrible crimes can swing an election. Police forces cracking down on crime can apprehend many such individuals. There is a crude-but-effective electoral logic in presenting immigrants as inclined to crime. So long as you can find some actual examples, such claims are not straightforwardly falsified.
There is, in contrast, little emotional gratification in blaming the system. Isn't the system just the system?
Who should we blame for the system?
If we need individuals to blame for the justice system's current failures, we can find them? Today's morally malfunctioning policies and laws were enacted by individuals in the past, most of whom are now dead. Aboriginal peoples have at least 65,000 years of continuous occupation of Australia. But it was the ancestors of settlers who made most of the laws — laws that may have made sense in their own time. We live in another.
If we are going to respect the views of the dead, we must not omit the views of indigenous Australians who had insufficient input into our nation's laws. Suppose you could talk to those ancestors and update them on the fact that Australia is now a rich multicultural nation. They are unlikely to suggest logging onto social media to hashtag #CancelThePolice. What might they say about indigenous deaths in custody? What recommendations might they make? Fortunately, we can do better than idle speculation. We can ask their descendants. The Voice to Parliament would have offered a format for that advice to be given on a regular basis.
I have avoided the easy trope of the racist cop. Most people in law enforcement are decent individuals doing their best. But, as Hannah Arendt and others have shown, even good people can be slowly reshaped by bad systems. Just turning up to work each day can require moral adaptation. Over time, a kind of moral dulling sets in, required by those who continue to work within the system. For those who want to advance in the system, the path may demand more than compliance. It may demand vocal endorsement of policies they privately know are unjust. We don't need to wait for history to judge the system. We are the system. And we must change it.
Nicholas Agar is Professor of Ethics at the University of Waikato in Aotearoa New Zealand. He is the author of How to be Human in the Digital Economy and Dialogues on Human Enhancement, and co-author (with Stuart Whatley and Dan Weijers) of How to Think about Progress: A Skeptic's Guide to Technology.