I listen to a lot of true crime podcasts, and it is common for hosts to talk about our “broken” justice system. In fact, the phrase is ubiquitous in discussions of the US legal system. A quick search using “broken justice system” will yield a trove of articles and discussions with similar titles. For example, under the heading, “America’s broken legal system,” New York University’s website posts a podcast discussion in 2021 by a senior US district judge and a lawyer at the Brennan Center for Justice, with an introduction that states: “Too often, the U.S. criminal justice system compels innocent people to plead guilty. It disproportionately incarcerates Black and brown Americans, often for relatively minor offenses. Meanwhile, high-level executives are rarely prosecuted or held accountable for much more serious crimes.”
This is certainly a powerfully succinct summation of how things really are. Underneath the veneer of fairness, there are clear class and racial double standards in the choices made by police, prosecutors, and judges both in terms of what laws they choose to enforce and against whom they choose to enforce them—as well as in what are considered crimes, and how seriously those crimes are punished. Two recent cases illustrate this: A white former Chicago wealth manager at Citibank got 30 months in prison for stealing almost $1.5 million from elderly clients, while an African-American man was sentenced to 15 years for burglarizing a home in a Chicago suburb, his second burglary offense.
Racial disparities are rife throughout the justice system. Blacks, for example, are arrested at a rate more than 2 times that of whites. While African Americans are 13 percent of the population, but 37 percent of people in prison or jail are Black, as are 30 percent of people on probation or parole. Forty-eight percent of people serving life sentences are Black (Prison Policy Institute). A recent ABC-7 investigation into Chicago police traffic stops concluded that of the 2 million traffic stops since 2016, 60 percent were Black drivers (African Americans make up 27 percent of Chicago’s population), while white drivers (whites are 32 percent of Chicago’s population) made up only 13 percent of traffic stops. Blacks are more than 2.5 times more likely to be fatally shot by police than whites.
There are clear disparities in arrest and prosecution rates based on income level or whether or not the accused is able to afford a good lawyer. The wealthier and whiter you are, the better your chances of avoiding arrest, prosecution, and prison time. Everyone has the “right to an attorney,” but that legal right says nothing about the quality of the defense. According to Equal Justice, “upfront costs for a competent criminal defense lawyer can start at $25,000 or more.” The result is that the vast majority of defendants—who are poor, indigent, and working class white people and people of color—are forced to rely on overworked and underpaid court-appointed public defenders if their case goes to trial. But what usually happens is that these cases, in assembly-line fashion, end up in plea deals after the accused is convinced (by “their” lawyer) that they have no way to effectively fight the charges against them in court. “Poor defendants sentenced to die have been represented by lawyers who were drunk, asleep, or later disbarred,” notes Equal justice. “Others have been represented by collections or tax attorneys or lawyers fresh out of school. Some court-appointed lawyers can be so overworked or indifferent that they don’t even bother to defend their clients at all.”
The class bias of the system begins with who the police target: police are far less likely to arrest higher-income people for committing the same crimes as poor people, and far more likely to charge a poor person than a well-off person for the same offense. Swat teams aren’t barging into wealthy neighborhoods and arresting teenagers holding drug-addled parties while their parents are on vacation at the second home in Cabo. And price gouging companies that prevent the poor from having access to life-saving drugs they sell never spend a day in jail.
Hundreds of thousands languish in jail—sometimes for years—awaiting trial simply because they cannot afford bail. Donna Leiberman, writing for the New York Civil Liberties Union, writes:
The majority of people locked up in local city and county jails… are presumed innocent but nonetheless punished with months and even years of incarceration while awaiting trial. Unable to work or pay rent, they lose their jobs, homes, and families.…But sometimes the accused lose their lives. In 2010, Kalief Browder maintained that he was innocent of stealing a backpack when, at the age of 16, he was sent to New York’s notorious Rikers Island to await trial. His mother could not afford the $3,000 bail, and his case was delayed over and over. By the time the district attorney admitted that the government had no case, Browder had been locked up for 1,000 days, nearly 800 in solitary confinement. Scarred and traumatized, he hanged himself after his release.
Obviously, these are problems not often faced by the wealthy. As Jeffrey Reiman writes in The Poor Get Prison,
The weeding out of the wealthy starts at the very entrance to the criminal justice system: The decision about whom to investigate, arrest, or charge is not made simply on the basis of the offense committed or the danger posed. It is a decision distorted by a systematic bias that works to the disadvantage of the poor.
This economic bias is a two-edged sword. Not only are the poor arrested and charged out of proportion to their numbers for the kinds of crimes poor people generally commit—burglary, robbery, assault, and so forth—but when we reach the kinds of crimes poor people almost never have the opportunity to commit, such as antitrust violations, industrial safety violations, embezzlement, and serious tax evasion, the criminal justice system shows an increasing benign and merciful lace. The more likely that a crime is the type committed by middle- and upper-class people, the less likely that it will be treated as a criminal offense.
At the root of the concept of a broken justice system is the belief that there is some ideal system that the current one is meant to be like—presumably, a system that treats all citizens equally and fairly regardless of income, class status, race, gender, sexual preference or country of origin. When we say the system is broken, the implication is that it can be fixed to be closer to this ideal.
The problem is that the ideal purposely masks the social function of the law. Take the “war on drugs.” It’s alleged goal advertises itself in the phrase. We presume it must be a war to stop the flow, and use, of drugs that are declared to be illegal. Alec Karakatsanis in his book Usual Cruelty notes that if we take the phrase at face value, it has been a colossal failure. At a cost of “more than a trillion dollars, tens of millions of arrests, hundreds of millions of police stops, tens of millions of years in prison, tens of millions of lost jobs and education and homes, millions of square acres of poisoned forests, tens of millions of voting rights…and massive militarization and surveillance by local police of every American city and town,” all of which has failed to stop either the traffic in, or use of, illegal drugs. “Only idiots,” he concludes
would pursue strategies that are so counterproductive and destructive for so long—and our legal system’s bureaucrats are sophisticated, not idiotic. The “war on drugs” is about something else…. [T]he punishment bureaucrats who created the contemporary “criminal justice system” are broadly comfortable with the way that our society looks. They market a crime problem in need of “law enforcement” in order to keep our society looking the way that it does. They do not want to solve the “crime” problem if that means a society that looks much different—say, more equal and with less private profit. Hence they both construct and respond to “crime” with strategies that increase inequality and control, but do little to stop the same problems they purport to care about—and that often make those problems worse, thereby justifying a circular call for more (selective) punishment.
Another lofty ideal of the justice system is that its purpose is not only punishment of “offenders,” but rehabilitation and the reduction of crime. It is routinely noted that neither of these things actually occur. In 1973, well before the explosion of the US prison population, the National Advisory Committee on Criminal Justice Standards and Goals concluded that “the prison, the reformatory and the jail had achieved only a shocking record of failure. There is overwhelming evidence that these institutions create crime rather than prevent it. Their very nature insures failure.”
When looking back at the slavery era in the US, it is quite easy to see that the laws were crafted to reinforce the slave system. The 1850 Fugitive Slave Act, for example, made it a federal crime to assist anyone trying to escape slavery anywhere in the U.S. We no longer have that system, but it remains true that the laws continue to reflect the dominant interests in society, and exist, despite the rhetoric of impartiality, to maintain that dominance. What hasn’t changed over the centuries is that the appearance of equality under the law has always masked its deeply unequal application, both in terms of what is determined to be a “crime” and who those in power decide to punish, and with what degree of severity, for such crimes.
The French writer Anatole France once wrote, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The supreme court is about to decide on an Oregon case that might legalize what is already happening in many cities across the country: the criminalization of homelessness, i.e., of poverty. Laws against vagrancy, sleeping outdoors, setting up tents in unauthorized locations, panhandling—these are all laws aimed not at solving homelessness, which would require affordable housing, decently paid jobs, more medical and mental health assistance, and so on—but making the homeless disappear.
As already noted, not all theft is treated equally before the law. Shoplifting from a grocery store, for example, is more harshly punished than stealing a million through non-payment of wages. In Chicago, the city estimates that workers are robbed of their wages by employers to the tune of $400 million per year. In Illinois, a conviction for wage theft can result in requiring the offending employer to pay unpaid back wages plus damages, and possibly fines—but no prison time. In Illinois, a first offense for shoplifting of items worth less than $300 is punishable by a year in prison and a fine of up to $2500. If the items stolen are worth more than that, the fine can go as high as $25,000 with up to three years in prison.
There are things that routinely perpetrated the U.S. criminal justice system that, if practiced by you or me, would be punished severely. Civil asset forfeiture (CAF) is essentially a fancy term for the police confiscating your possessions—property, cash—if they suspect you may have committed a crime, and then keeping them even if they determine you didn’t commit that crime. There are also criminal forfeitures, in which authorities can seize your property, and keep it if you are proven guilty in a court of law. According to a 2020 report by the Institute for Justice, since 2000 states and the federal government have collected at least $68 billion in forfeitures—a figure that vastly undercounts the true amount because many states do not provide full data. In 2018 alone, 22 states and the federal government collected $3 billion in forfeitures. The report notes that there is no evidence that these forfeitures reduce crime; but that begs the question: are civil forfeitures really about lowering crimes rates, or are they forms of organized theft? The vast majority of forfeitures are less than a few thousand dollars, and the targets are not the Bernie Madoffs of the world, but ordinary people, often, poor and people of color who cannot afford the costs of legally challenging them.
The famous lawyer Clarence Darrow, speaking in 1902 to Cook County prisoners, summed up succinctly the truth about the justice system:
See what the law is; when these men get control of things, they make the laws. They do not make the laws to protect anybody; courts are not instruments of justice; when your case gets into court it will make little difference whether you are guilty or innocent; but it’s better if you have a smart lawyer. And you cannot have a smart lawyer unless you have money. First and last it’s a question of money. Those men who own the earth make the laws to protect what they have. They fix up a sort of fence or pen around what they have, and they fix the law so the fellow on the outside cannot get in. The laws are really organized for the protection of the men who rule the world. They were never organized or enforced to do justice. We have no system for doing justice, not the slightest in the world.
The operation of the law cannot be “fixed” because the system’s purpose is to perpetuate inequality and oppression. That doesn’t mean reforms of the justice system are meaningless—cash bail should be eliminated, for example—but it does mean that fundamental changes in it would require a much more dramatic economic and social transformation. Let’s let Darrow have the last word on what the solution is:
It’s easy to see how to do away with what we call crime. It is not so easy to do it. I will tell you how to do it. It can be done by giving the people a chance to live — by destroying special privileges. So long as big criminals can get the coal fields, so long as the big criminals have control of the city council and get the public streets for street cars and gas rights, this is bound to send thousands of poor people to jail. So long as men are allowed to monopolize all the earth, and compel others to live on such terms as these men see fit to make, then you are bound to get into jail.
The only way in the world to abolish crime and criminals is to abolish the big ones and the little ones together. Make fair conditions of life. Give men a chance to live. Abolish the right of private ownership of land, abolish monopoly, make the world partners in production, partners in the good things of life. Nobody would steal if he could get something of his own some easier way. Nobody will commit burglary when he has a house full…. The only way to cure these conditions is by equality. There should be no jails. They do not accomplish what they pretend to accomplish. If you would wipe them out, there would be no more criminals than now. They terrorize nobody. They are a blot upon civilization, and a jail is an evidence of the lack of charity of the people on the outside who make the jails and fill them with the victims of their greed.
Paul D'Amato is the author of The Meaning of Marxism and was the editor of the International Socialist Review. He is the author of numerous articles on a wide array of topics.
