Criminal Justice Inequities

The United States has one of the highest incarceration rates in the world. At the end of 2015, around 6.7 million individuals were under the supervision of U.S. adult correctional systems. While this number is lower than past years, prisoners in the United States still make up around 22 percent of the world’s prisoners, despite the country making up only 5 percent of the world’s population.

Why the big difference? One reason is that private prisons are big business in the United States. Although the Department of Justice has recently been in favor of reducing or eliminating dependence on prison contractors, private prisons continue to win new contracts due to the increased emphasis on incarceration that comes from initiatives like the war on drugs or the recent crackdown on undocumented immigration.

This increased emphasis on incarceration in the criminal justice system targets poor and non-white populations, creating a kind of social class structure where certain population groups are much more likely to be incarcerated. Let’s call this process “Social Stratification.”

What Is Social Stratification?

Social stratification exists in every society to some degree or another. Simply put, social stratification is the arrangement of different population groups into social tiers that create dominant and sub-dominant groups within a society. “Its basis consists of an unequal distribution of rights and privileges, duties and responsibilities, social values, social power and influences among the members of society,” according to Sociology Guide.

Within a stratified society, dominant social groups share increased advantages and privileges that sub-dominant social groups do not. This often means that sub-dominant groups experience hardship and inequality that more dominant groups do not because of their higher status on the social ladder.

Income Insecurity and Social Mobility

According to the Stanford Center on Poverty & Inequality, income inequality both contributes to and results from social inequality in many different ways.

  • CEOs were paid 185 times more money than the average production worker in 2009, a disparity that has grown more pronounced over time.
  • More than 750,000 Americans are homeless. African-Americans, people with disabilities and veterans make up a disproportionately high percentage of this number.
  • Women earn about 80 percent of what men earn for the same job, and many of the highest-paying jobs in the United States go primarily to men.
  • As of 2007, 73.1 percent of the wealth in the United States was concentrated among the top 10 percent of the population, and the bottom 60 percent held only 4.2 percent of the nation’s wealth.

These stark contrasts have increased over time, making it much more difficult for disadvantaged groups to gain ground. In 1980, the top-earning 1 percent of the U.S. population earned, on average, $428,000 per year; in 2016, that number was closer to $1.3 million. The poorest 50 percent of the population earned, on average, $16,000 per year in 1980; this hasn’t changed since then.

When combined with the cost of living, the growing economic inequality reinforces social stratification and makes increasing social and economic status extremely difficult for disadvantaged people. According to a study by the Economic Policy Institute, the average working family needs an annual income of $48,778 to meet its budget, which primarily consists of basic living expenses like housing, food, child care, transportation, healthcare and so on. Around 30 percent of families do not earn enough money to be above the average budget line. Of these families, the majority are made up of “young families, larger families, urban families, families headed by a non-college-educated person, and minority families,” the study found. More than 50 percent of African-American and Hispanic families fall below the budget line.

The Criminal Justice System and Social Stratification

This is where the American Criminal Justice System gets dicey. Because certain populations are forced into positions of social inequality, crime becomes more common within those populations. “Most inmates are minority men under age 40 ‘whose economic opportunities have suffered the most over the last 30 or 40 years. Incarceration in the United States is socially concentrated among very disadvantaged people,’” says U.S. News & World Report. In the United States, the people most likely to commit crimes are “people without education, jobs, housing, or hope,” U.S. News explains. This is further complicated by the fact that people from disadvantaged populations are frequently given harsher sentences than those from dominant populations for the same crimes.

Think about this: Retainers for felony crime cases start around $5,000-$10,000 but can be $25,000 or more for serious cases. Private criminal legal representation is literally out of reach and unattainable for most who fall into an average working family category or below. Because of the high cost of securing “better” or “best” legal representation in such cases, public defense is most often the only option.

Public defense is not in itself necessarily bad or of poor quality. But many who serve in this capacity are just beginning a criminal defense career or are assigned a certain percentage of indigent cases they are required to work. The volume of cases and low public defense budgets obviously water down capabilities of providing “better” or “best” defense for those charged who lack sufficient financial resources to obtain private representation.

Current examples are what occurred in Washington in the Mueller investigation of Russian collusion during the 2016 election. Former National Security Advisor Michael Flynn was literally forced to plead guilty to one federal charge against him because he could not afford continually mounting legal bills to continue his defense. His legal costs? Estimated $500,000.

Former Deputy FBI Director Andrew McCabe although not charged in the case used a GoFundMe campaign to raise funds for his almost-certain criminal defense if/when he is charged. By no means is McCabe poor are indigent. But estimates for his defense are from $500,000 to $750,000.

These are unusual examples of political and very public criminal cases either underway or pending and are not typical of what everyday Americans face in the criminal justice system. But it is not uncommon for a criminal case in which a defendant who has a criminal record and who is subsequently charged with one or more felonies to face a $100,000 defense bill if able to retain a private criminal attorney. There is very little hope for a person of average or below income to find defense other than through public defender representation.

Multiple offenders — no matter the seriousness of previous crimes — suffer disproportionately in the criminal justice system, simply because of their past brushes with the Law. Inmates and ex-convicts are themselves, a disadvantaged population. Once a person has a criminal record, it’s easy for potential employers to access that information on the internet and deny jobs because of it. This makes it difficult for those who have criminal records to find jobs that pay enough.

What Can We Do?

Correcting this social stratification effect in the criminal justice system is no easy task. Those without enough money to meet their basic needs are often likely to have inadequate healthcare, little access to quality education and limited access to jobs that pay well. Simply put, disadvantaged populations frequently don’t have access to the tools necessary to reduce or eliminate that disadvantage, and many of them become involved in the criminal justice system as a result.

Prior to President Lyndon Johnson’s term in the White House, “many federal programs had emphasized crime prevention,” according to U.S. News. Urban recreational centers, social workers and probation officers were all emphasized as ways to reduce crime. As these programs were gradually defunded, policy turned more toward incarceration, and profit-driven private prisons capitalized on that decision.

Many solutions have been proposed, and it’s possible that, with a concerted effort to correct the societal problems that contribute to social stratification, the United States can reduce its reliance on incarceration in the criminal justice system.

The “New” Crime Bill: A Good Start

Donald Trump in December of 2018 signed into law the First Step Act prison and sentencing reform bill with strong bipartisan support.

“The First Step Act will make communities SAFER and SAVE tremendous taxpayers dollars,” the president said in a statement. “It brings much-needed hope to many families during the holiday season.”

The result of coalition-building in a partisan political climate, First Step earned support from politicians as diverse as senators Kamala Harris and Ted Cruz, and from advocacy groups including the American Civil Liberties Union (ACLU) and the Fraternal Order of Police.

Trump’s strong support was largely seen as a result of the involvement of his son-in-law and top adviser Jared Kushner. At the signing ceremony, he thanked Kushner personally.

Of prisoners who could not advocate for themselves from behind bars, Kushner said: “We were their lobbyists.”

The act expands rehab opportunities, increases “good time”-served credits for most federal prisoners, reduces mandatory minimum sentences for a number of drug-related crimes and formally bans some correctional practices including the shackling of pregnant women.

“This bill could have died a dozen different deaths,” said Van Jones, co-founder of advocacy group #cut50, which was integral in the bill’s design. “But the broad coalition that came together to pass it refused to give up.”

Jones, a frequent outspoken critic of Trump on his CNN show, added: “Many have seen their loved ones sent to prison or were incarcerated themselves. For all of us, this fight was deeply personal.”

Early critics of the bill, such as New Jersey senator Corey Booker and the ACLU, who felt that the legislation did not go far enough, came around in large part due to major additions to the House version of the bill by the Senate, which added language on sentencing reform. The first House version only contained reforms on the way inmates are treated in prison.

In exchange, progressive reformers had to accept a number of changes to which prisoners will be eligible for benefits under the act, based on the crime for which they were convicted. The sentencing reforms were also mostly not made retroactive, meaning they do not apply to inmates already sentenced.

“The First Step Act is by no means perfect,” said Jesselyn McCurdy, deputy director of the Washington legislative office at the ACLU. “But we are in the midst of a mass incarceration crisis, and the time to act is now. We applaud the bipartisan group of senators who were willing to listen to advocates.”

Summary

On a personal note: My son was incarcerated twice in his late teens — not as one would suspect for drug offenses, but for making some crazy financial decisions. His second time, we refrained from retaining private representation for him, forcing him to use a public defender. The experience was horrifying. It almost goes without saying that his public defender had a case log that was far too large to allow effective and thorough representation for most of his clients. And most of those clients were charged with far more serious things than simple forgery as was our son.

I will never forget the day in court when my wife and I walked in for his sentencing. The judge was an old family friend and knew us and our son. We anxiously sat as several other convicted individuals stood for their sentencing. The case immediately before our son’s was that of a 3-time drug offender who had been caught with 2 pounds of heroin in his car. In Louisiana, there is a “3 strikes and your out” law that meant this convicted offender would receive a life sentence. To our surprise, the judge sentenced him to a $3000 fine and time served. (he had been in jail for 90 days) Our son who had to plead guilty to two counts of forgery (he had stolen my mother’s personal checks and cashed them with forged information on them) was sentenced to 3 years in prison! Why did the drug trafficker receive such a light sentence and our son the most severe? The drug offender was offered a deal: he would NOT serve time, this his 3rd felony would be expunged from his record if he would give investigators the names of all those who he worked for, who were REAL drug traffickers!

We feel that — certainly in Louisiana — the criminal justice system is broken.

The First Step Act is a good start on repairing a long-broken system: criminal justice. For far too long, social stratification explained above has devastated American families who are most prone to be targeted in the criminal justice system. This bill signed into law must be just the beginning. Those caught up in the “System” have for decades watched as they become victims of a process that is supposed to guarantee “equal justice under the law.” But it has been anything but that.

Where do we go next? Is there enough support to take on the fight to see The First Step Act as just the “first step” towards righting the ship of Equal Justice in America? Only time will answer those questions. But one thing is already clear: Donald Trump really is able to find consensus among opposing party members and achieve realistic objectives that really do make sense and are bi-partisan. Being able to do that in this highly charged partisan atmosphere in Washington is a miracle. But it needs to be nothing more than the “first step.” We’ll declare victory in the war on crime in the U.S. when we find ourselves researching The Tenth or Fifteenth Step Act.

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