Criminally Unjust: A Tale of Two Justice Systems

Sometime past three o’clock, on a warm July afternoon, Eric Garner stood in front of a Staten Island beauty supply store allegedly selling what are commonly referred to as “loosies” – untaxed cigarettes usually sold for between ten cents and a quarter.  Hulking, black, with a broad chest, the 43-year-old grandfather was often described by friends as the “neighborhood peacemaker”; an amiable giant endowed with a generous, congenial attitude.  With his back arched against the store’s window, he is swiftly circled by a band of NYPD officers. At first the interaction remains unremarkable; one officer, as the video reveals, can be seen indifferently chewing gum as Garner explains the predicament to the small congregation of cops. Ardently waving his arms, a frustrated Garner tells the officers, “every time you see me, you want to mess with me. I’m tired of it. Everyone standing here will tell you I didn’t do nothing.” To be clear, this story of dogged police harassment is one shared by many black men. Garner himself was arrested 31 times since 1980 – with only two charges yielding convictions. If his past history was any indicator, he indeed likely “didn’t do nothing.”

Yet, the exchange takes a hasty, tragic turn; what begins as a relatively peaceful discourse devolves into an Orwellian display of brutality. As Garner continues to complain, officers from both sides of the ring suddenly grab his shoulders, attempting to arrest him — notably without evidence of the so-called “loosies” they were originally seeking. He flinches in surprise, attempting to evade the officers’ forceful grasp. Yet rather than de-escalating the conflict – or giving the visibly shaken Garner a chance to regain composure – Officer Daniel Pantaleo’s muscular arms lock his neck in a chokehold.  Pantaleo constricts him with the authoritarian zeal of Judge Dredd, despite his desperate pleas for air. “I can’t breathe…I can’t breathe,” Garner begs, his consciousness slipping as the officer ceases to relent. For another 23 tortuous seconds, even after Garner falls to the ground, the officer continues to clench his neck, squeezing the life out of a man who two minutes prior was quietly idling in front of a store. When the officer finally subdues his boa-like constraint, the severity of Garner’s condition becomes evident: he lays lifeless on the sidewalk, prolonged oxygen deprivation having caused a massive heart attack.

The events of the now infamous video have evolved to become a symbol of police brutality; a rallying cry for those disaffected with our justice system.  Garner’s last words: “I can’t breathe,” have been adopted as the mantra of recent demonstrations. More importantly, unlike the shooting death of Michael Brown, whose case was enshrouded in a fog of conflicting witnesses and forensic reports, Garner’s death serves as an irrefutable, visceral testament to the violent excesses of law enforcement. Although the Grand Jury investigating Pantaleo’s conduct ultimately acquitted him of wrongdoing, much to the chagrin of civil rights activists, most who watched the video agree, at best, his behavior was an incompetent display of force. For others, the chokehold was a malicious tool of murder, driven by a more sinister undercurrent of racism. Even conservative commentator, Charles Krauthammer — not particularly known for his civil rights bona fides — noted that the grand jury’s decision was “totally incomprehensible.”

For most, Garner’s death has become a lesson in police brutality. Or the need to weed out bad cops. As   New York Police Commissioner, Bill Bratton, said in response to widespread demonstrations, we must remove officers who are “poisoning the well.” Body cameras, demilitarization, and increased regulations are all similar conclusions that have arisen from recent demonstrations and events. But largely absent from the outcry of protesters and public officials, has been the broader context; “the big picture.”  In a frenzy to vilify police officers, we have forgotten that they are not the enemy. Rather, we must acknowledge that bad systems make bad officers.

While it is quite possible that Pantaleo’s chokehold was the product of some sort of primordial sense of racism, it is equally, if not more likely, that his lethal use of force was the result of greater broken systems and broken policies.  We must treat Garner’s death not as the disease, but as a symptom of a broader justice system which increasingly equates poverty with crime.

One must understand that as our nation’s economic inequalities grow, so do the inequalities in our justice system: increasingly, race and class are determinants, not just of one’s income, but of one’s judicial treatment. On the surface America maintains the hallmarks of a healthy democracy: the right to vote, the right to a jury, and the right to an attorney. But underneath this glimmering sheen of equitable justice lies a dark labyrinth of policies and bureaucracies which ensure that we live in a nation of two justice systems: one for the rich and one for the poor.

To understand the magnitude of our increasingly fractured justice system, one does not need to prod particularly hard into the nuances of police behavior and government policy. In fact, many of the most egregious disparities between the treatment of the wealthy and poor are codified directly into our laws; a self-evident reality of our own legal existence.

On one end of the spectrum are crimes linked to poverty. These offenses such as drug possession, jumping turnstiles, loitering, and petty theft are non-violent misdemeanors primarily committed by those in poverty.  Often, these are crimes perpetrated out of necessity and generally have minor, if not negative impact on society.

Take drug possession – by far the most common source of non-violent crime.  In many disadvantaged neighborhoods, the selling and purchasing of drugs is a casual source of employment, where economic and educational opportunity otherwise remains low. Since many low-income households have little access to treatment programs and family support, rates of addiction also remain much higher. Therefore, it would seem that impoverished communities do not have a problem with crime, but rather with social and economic dysfunction. Yet in our near-dystopian penal code, drugs, as well as other non-violent crimes, are not viewed as a multidimensional symptom of entrenched poverty, but rather a scourge of society which must be “cracked down.” Confirming this, the United States Sentencing Commission released a report stating that “in 2012, the average federal prison sentence for a drug offender was almost 6 years.” Perhaps more disturbingly, there are over 2.8 million individuals convicted of non-violent crimes currently incarcerated, heavily skewed towards the poor and minorities.

Yet the draconian gavel of our justice system is not limited to drugs, either. For most poor offenders — whether it is three days or thirty years — their prison careers begin with the most minor offenses conceivable. Imagine being jailed for loitering? For stealing a two dollar can of beer? Or how about swearing in public? Recall Eric Garner: the infraction provoking his death was ultimately the selling of untaxed cigarettes to support himself financially. We must ask ourselves, in a fair and just society, should six children be left fatherless for what amounts to a minor, victimless offense? Can we tolerate a society in which the punishment is no longer reflective of the crime?

For many impoverished communities, the harsh penalties and enforcement of non-violent crime is only the beginning.  When an individual is convicted of a minor poverty-related crime, they are more likely to commit more severe crimes and less likely to find employment after imprisonment. In the violent, gang-ridden albatross that is our prison system, a minor drug offender may quickly become a hardened criminal. In other words, by aggressively prosecuting non-violent crimes, our justice system is effectively sanctioning a sort of vicious prison-poverty feedback loop: poverty leads to minor offenses which leads to imprisonment which in turn leads to greater level of poverty. In Daedelus, sociologists Bruce Western of Harvard and Becky Pettit of the University of Washington concluded that “once a person becomes incarcerated, the experience limits their earning power and their ability to climb out of poverty even decades after their release.” But the mass incarceration of poor, non-violent offenders also irreparably damages future generations.  Recent surveys indicate that “children of prisoners are more likely to live in poverty, to end up on welfare, and to suffer the sorts of serious emotional problems that tend to make holding down jobs more difficult.” In its zealous, authoritarian pursuit of minor crimes, our own justice system is keeping millions of destitute Americans in a state of perpetual suffering, destroying communities and bolstering social dysfunction; the criminalization of poverty.

On the other side of the equation, in the realm of the wealthy, the justice system fails to penalize crime, instead immunizing success and wealth.

At some level, we all implicitly understand that the wealthy will inexorably fare better in a court of law; with a vigorous legal defense team and other resources, one would assume that cases are naturally easier to win. Yet the inequities in our justice system are far more entrenched than merely the quality of legal counsel. As money increasingly dictates politics, the wealthy have built a layered bureaucracy and legal structure designed to insulate their harmful, yet massively profitable, financial practices from the rule of law.

The legal biases inoculating the wealthy are apparent in all stages of the criminal justice system; in arrest rates, convictions, and sentencing, the rich face a system entirely different than their poorer counterparts.  One now infamous Philadelphia study conducted in 2008, revealed that “of 3,475 juvenile delinquents…police referred lower class boys to juvenile court much more often than upper class boys, even for equally serious offenses with similar prior arrest records.”

With sentencing, the Dickensian inequities are equally alarming. Take, for example, the three crimes of robbery, larceny, and burglary; all three, in varying degrees of severity, involve illegally siphoning property from one person to another. Next, take fraud, embezzlement, and income tax evasion; again, all “white-collar” variations of theft. But despite their inherent similarities, one convicted of the former three offenses will, on average, receive twice the sentence of one convicted of the latter three offenses.

The most egregious example of our justice system, however, is in its handling of large corporations. Although it has become cliché, not a single executive of any Wall Street firm, has served or is serving time in connection with the 2008 financial meltdown. Many politicians, commentators, and President Obama himself have justified this by suggesting the offenses of corrupt corporations are merely ethical violations – minor missteps undeserving of prosecution.

But these so-called ethical and “minor missteps” are neither legal nor minor.  The crimes committed by large firms and their employees include concealment of financial transactions aiding terrorists, as was the case with HSBC, the blinding of criminal assets, deliberate tax evasion, large-scale fraud, and sub-prime mortgages, rivaling only the Great Depression in financial damage.  In the wake of the 2008 financial collapse, over 40% of the world’s wealth was lost, crippling the global economy and the American middle class.

Yet not a single prosecution.  A contingent of wanton, avarice-eyed executives single-handedly implode our economy and collectively receive a smaller punishment than a poor man stealing a can of beer.  If the purpose of our justice system is to “seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans,” as Attorney General Eric Holder himself wrote, then not only has it failed us, it has embarrassed the sanctity of justice itself.

The American psyche has long revered the justice system, at least symbolically, as a bastion of morality; an impartial arbiter of innocence and guilt. It was the justice system, after all, which desegregated our schools, ended interracial marriage laws, and protected freedom of speech. However, the harsh criminalization of poverty and the inoculation of the wealthy force us to reconsider this unwavering reverence. As impoverished teenagers serve draconian sentences for rolling a marijuana joint, wealthy bankers revel in a binge of unaccountability, demonstrating that the ideals of justice are often a facade for a system dictated by class. Tragically, our justice system has devolved into a virtual caste system where punishment no longer reflects the severity of the crime.

These dangerous trends can no longer be ignored. As the deplorable death of Eric Garner indicates, the stratification of our justice system is a national crisis for which blood is being shed. Garner’s daughter said in response to her father’s death, “justice, to me, is basically doing what’s right.”  With millions of Americans still protesting, and the inequities of our justice system increasingly evident, we must too ask ourselves: “Do we have the will to do what’s right?”

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