The origins of criminal justice in the United States as conceived by John Locke, and later as reconceived by John Rawls, emphasize the concept of an “unbiased adjudicator”—a person or institution of deliberation without a stake in the outcome of a decision. This basic theory outlines the difficulties people sometimes have in conceptualizing “justice” as “political,” or part of some wider agenda with political ends in mind. The U.S. system is broadly founded on notions of fairness, or equity, that seem to preclude the idea that justice may be somehow twisted to the advantage of groups or individuals. Yet, the system of justice—as with any other system—is embedded in a political world with political ends and consequences.
In some ways, the justice system (police, investigators, judges, and the like) are those least seen as policy makers in the American system of government. These people, and the institutions in which they work, are generally viewed as passive receptacles for the policy-making decisions of others. If policy can be divided, broadly, into two arenas, they are usually thought to be policy creation (and the decision making that goes with it) and policy implementation. The criminal justice systems of the United States are generally thought be the latter; their role is in implementation, rather than in creation. Though this is certainly widely accepted, there are aspects of implementation that require policy creation at ground level as well. Politics has a role in criminal justice, and its effects on basic ethical issues are significant on two levels: the level of enforcement (investigation, the police, and law enforcement generally), and the level of decision making (chiefly the judiciary). Institutional effects that politics may have can result in outcomes of questionable ethical expectations as well.
Locke’s theory of justice was based on the idea that people could not act as their own judges, nor could they enforce rules on others that would not be inherently biased toward their own advantage. Rawls expanded on this by writing that true justice could only take place if the adjudicators were placed “behind a veil of ignorance,” where they would have to assume that they, themselves, would be the recipients of the worst outcomes of their decisions. None of this has more than theoretical application, however. In the United States, the judicial system allows for protocols of “recusal.” This occurs when judges or other officers of the court remove themselves, voluntarily (or, in some cases, by others) from cases where they could profit by the outcome of the case, or in cases where they would be prejudiced toward one side over the other. While there are such mechanisms, the assumption is that judges will hear cases fairly, that all laws apply to everyone equally, and that each person is under similar scrutiny for obeying the laws that frame society. In reality, it is to be expected that politics—the decisions surrounding who gets what, where, when, and how, according to Harold Lasswell—will intrude throughout the system.
Police Work and Political Interests
In the early years of the republic, the lowest level of the judiciary, law enforcement, was almost completely dominated by political interests. The system of “to the winner go the spoils,” or “patronage” was a perfectly legal—and accepted—system whereby elected officials almost completely dominated the employment prospects of police officers. These positions would be awarded by the political groups or individuals who won elective office. This gave these officials a powerful electoral base for re-election and an incentive for voters or poll workers to help them into office. While patronage has, for the most part, been associated with the big city “machines,” the system also applied in small county sheriffs’ offices, constabularies, and county government well into the current era. The inborn bias in systems such as these is blatant and clear. Patronage, as a system, held sway in most jurisdictions through the 1920s, when the Progressive “good government” movement and other reform movements began to chip away at it and install more objective requirements for these occupations.
As police work became more professionalized, policy makers began to apply pressure on police officers to engage in selective enforcement. The sheer number, type, and kind of statutes that fall under the purview of the police preclude their ability to apply enforcement equally to all. There is a clear understanding that a police officer should be more concerned with robbery, for example, than with ticketing people who spit on the sidewalk. The level of severity may not always be so clear, and guidance as to which crime or criminal activity should take precedence is often a political determination. When politicians decide, for example, to take up a particular problem, police, as implementers of policy, must often reorder their street-level priorities. Prostitution sweeps, “wars” on drugs, or task forces formed to fight organized crime may all lead to the primacy of one set of enforcement priorities over another.
Though patronage in its more blatant form is gone, in systems where the local head of government is responsible for appointing the person charged with law enforcement, bias arising from political concerns is still very much a concern. These configurations include police commissioners appointed by powerful mayors, oversight boards controlled by elected political figures, and the like.
As the general configuration of the institutions of law enforcement changed, the element of political bias—while never entirely removed—became far less open and less frequent. In the legal community, the changes have been at once far more extensive as well as far less effective in removing ethical problems related to bias and unfairness.
The Influence of the Constitution
The U.S. Constitution, in Article IV, offers very little guidance as to exactly how the judiciary of the United States was supposed to be constructed. Other than a few notes as to the fact that there will be a “Supreme Court,” and that judges should serve as long as they like (barring bad behavior— undefined), and that judges should be compensated, the founders give little vision as to what kind of system should come into being. The system at the state level was, if possible, even more confusing. For the original 13 states, a welter of old usages, common law, and statutory law enacted before the revolution obtained. As the nation progressed, so did the federal system and the state system, which existed below it. Both systems were institutionally created by legislatures—legislatures that were nonrepresentative because of the limited franchise that elected them. The inherent bias present in any legislature that did not allow for the representation of women, African Americans (in many circumstances), nonproperty owners, or other excluded groups must be assumed to create systems that might not be expected to serve these groups as well as the represented groups. It is not a coincidence that the widening of the franchise, in each case, was paired with a further and more definite refinement of due process as well.
Legislatures in slave states—and their “Jim Crow” successors—could not be expected to produce judicial rules and standards that would protect the rights of African Americans. The repression of African Americans at the state level following the Civil War has a long and twisted history, but it may be traced through the passage of statutory law that systematically deprived people of African heritage of basic rights under the law. African Americans could not testify in court against people of AngloSaxon heritage in several states into the 1950s; the deprivation of African Americans of basic property protections was a common occurrence under these regimes. The bias extended beyond the legislature, of course. If the county sheriff did not have to answer to African American voters at the polls, and served an inherently racist constituency, the likelihood of African Americans receiving “equal treatment under the law” was small.
At the federal level constitutional amendments were passed following the Civil War meant to alleviate the imbalances between African Americans and other citizens. These requirements were largely ignored by both the political and criminal justice elements in the former Confederacy until a show of political will in the 1950s and 1960s, accompanied by enabling legislation, forced change.
Nonviolent Crime
The structure and nature of the criminal justice system in the United States tends to serve more particularistic interests than the advance advertising would indicate. One measure of this is simply the degree or weight of resources directed against certain types of crimes. It is perhaps an obvious observation that violent crime is targeted more often than nonviolent crime, but the type and kind of violent crime is revealing. More law enforcement energy, personnel, and time are directed against violent crimes such as robbery, burglary, assault, and the like, that occur in middle- and upper-class neighborhoods than similar crimes that occur in poorer areas.
Nonviolent crime also reveals a peculiar class bias. Crimes such as prostitution, drug possession, and theft often are not only more aggressively pursued by law enforcement, but also carry higher penalties than do embezzlement, insider trading, or bank fraud. The most egregious cleavage is in the area of the drug laws and their enforcement, which tend to be more common in poorer areas, carry extremely high penalties in some cases, and pack a potent political punch. “Wars” on drugs, prostitution, and other vice crimes are often seen as lurid media-grabbing strategies that play well for politicians who wish to be seen as “tough on crime.” Only very rarely does one see similar “wars” waged on corporate crime, or crimes more likely to implicate those at a higher economic level. Again, the idea is not that bank fraud or insider trading (for example) are not crimes; it is that they are simply not pursued with the energy that other crimes tend to be pursued. Examining legislative guidance for priorities reveals that certain types of crimes that are far more common in poorer areas (crimes committed with guns, for example) and those perpetrated by poorer people on those in better economic circumstances (carjacking) carry much higher sentencing than do those more likely to be committed by people in a higher economic brackets (tax evasion, insider trading).
In the 1980s, a new variant of cocaine came onto the market. This variety, so-called crack cocaine, was highly addictive, very cheap in comparison with the powdered form, and accessible to a much wider market as a result. Crack spread rapidly in poorer neighborhoods—neighborhoods where people resided who could never have afforded a powdered cocaine “habit.” The penalties for possession of powdered cocaine were relatively light, in comparison to heroin, for example, and small quantities were often treated relatively leniently. The U.S. Congress reacted to the crisis of crack cocaine by passing the 1986 and 1988 Anti-Drug Abuse Acts, which squarely mandated harsh sentencing for crack cocaine, but were silent on the subject of its powdered cousin. Many state legislatures also jumped aboard the crack bandwagon, and legislators made political hay out of the increasing fear that the “epidemic,” left untreated, could spread to middle-class neighborhoods. The mandated sentencing structure sharply divided the penalties for each form, favoring imprisoning those convicted of possessing even tiny amounts of crack to sentences that carried a disparity ratio of 100 to 1 over powdered cocaine. One assumes that neither form of the drug is an asset to any community, and that users should be dissuaded from picking up either habit, but it is difficult to see the difference between the two forms, other than the economic status of the targeted users.
The drug war is but one example of economic bias in criminal enforcement; the disparity continues as a function of heritage. According to federal figures on those currently imprisoned for drug crimes, more than 66 percent of all people imprisoned for drug crimes are people who belong to minority heritage groups—far disproportionate to their percentage of the overall population. Of all persons in prison for all crimes, the numbers also hold true, though it should be pointed out that violent crime tends to be more common in poorer neighborhoods, and people of minority heritage are more likely to be poor.
Use of Law Enforcement for Political Means
Egregious use of law enforcement for political ends is not currently rife in the United States, but there have been instances where this has been the case. When the Democratic Party held its presidential nominating convention in Chicago in 1968, for example, the use of the police for political ends was clear and unambiguous. The year 1968 was an ugly year in American politics. As debate about the war in Vietnam was reaching crisis proportions, the sitting Democratic president, Lyndon Johnson, had declined to run for a second term, and one of the candidates had been murdered (Robert F. Kennedy, brother of President John F. Kennedy and former U.S. attorney general). In addition, radical groups had threatened to disrupt the convention itself.
While the promised demonstrations were likely to be large, they were unlikely to be in any way violent, but the then Mayor of Chicago, Richard Daley, Sr., chose to threaten the demonstrators with violence prior to the convention should they come to “his” city during the convention. Daley was as good as his word, and as the convention got underway, the streets were the scene of a running battle between demonstrators and police, culminating in what a later investigation would call a “police riot,” in which demonstrators, delegates, journalists, and bystanders were indiscriminately beaten, tear-gassed, and jailed without charge. To add insult to injury, several demonstration leaders were put on trial after the event for “inciting a riot” and other charges. The judge in charge of the trial of the so-called Chicago Seven repeatedly admonished the accused from the bench and at one point placed one of the defendants, Black Panther leader Bobby Seale, in chains and a gag in the courtroom itself. Disruption of the trial by the defendants resulted in several contempt charges in addition to the original charges; Seale’s trial was severed from the others. In the end, public outrage and legal wrangling led to the trial devolving into chaos. Eventually, all charges were dropped and Seale’s trial never materialized.
The incidents in Chicago and similar events elsewhere during this period led to a series of studies, internal and external, in many jurisdictions and to a mood of reform for both law enforcement and the judiciary generally. Independent boards of review charged with overseeing the police were placed in positions of real power in many cities. Also, bar associations became far more active in policing the activities of members. Finally, in later incidents of abuse of power, the mechanics had been put in place to review circumstances and punish responsible parties.
The abuse of judicial powers for political ends also has a long and somewhat sordid history in the United States. From the days of Prohibition to the current era, politicians have never swerved from their purpose if it could be served by suborning the judiciary. This is particularly true at the level of the supreme legislating authority of all federal policy, the U.S. Congress. Following World War II and the beginning of the Cold War between the United States and the Soviet Union, a great deal of time, money, and effort was spent trying to root out Soviet spies. To a point, the danger was real: The United States had weaponry that the Soviet Union did not have, and the Russians were certainly trying to gather intelligence about it. The real dangers (apparently never very great, and certainly limited in large part to the scientific community) were quickly blown out of proportion by political figures fanning the flames of anticommunism into what can only be termed a “witch hunt.”
This hunt for communists and communist “sympathizers” was taken up both by individuals (Senator Joseph McCarthy of Wisconsin, for example) and through formal investigative committees of the House of Representatives. The House Un-American Activities Committee, a committee founded in 1938 to hunt down “subversives,” came into its own in the 1950s and early 1960s, using the power of the subpoena to investigate potential enemies of the United States, ranging from virtually unknown former Communist Party members to Hollywood figures. Many targets of the committee—almost none of them spies—had their careers and families destroyed by the committee’s investigations before it was reined in.
Conclusion
Any institution of power, however high-minded its theoretical basis, is at the mercy of those who staff, support, and maintain it. The criminal justice system of the United States is particularly subject to unethical misuse due to its permeability by the political powers that create the policies it must enforce, staff the institutions of its machinery, and empower it bureaucratically to do its tasks. Clearly, political interests inform how these institutions are organized, how they function, and the form and direction of their decision making—the criminal justice system is best understood as an extension of these political interests, and not as a separate construct, artificially separate from them.
Bibliography:
- Caute, David. The Great Fear: The Anti-Communist Purge Under Truman and Eisenhower. London: Secker and Warburg, 1978.
- Davis, Robert. “The Chicago Seven Trial and the 1968 Democratic National Convention.” Chicago Tribune (September 24, 1969). http://www.chicagotribune.com/news/politics/chi-chicagodays-seventrial-story,0,6172471.storylast (Accessed May 2013).
- Gottschalk, Marie. “Hiding in Plain Sight: American Politics and the Carceral State.” Annual Review of Political Science, v.11/1 (2008).
- Gottschalk, Marie. “The World’s Warden: Crime, Punishment, and Politics in the United States.” Dissent, v.55/4 (2008).
- Nicholson-Crotty, Sean and Kenneth J. Meier. “Crime and Punishment.” Political Research Quarterly, v.56/2 (2003).
- Norman-Eady, Sandra, et al. “Crimes and Their Maximum Penalties.” OLR Research Report, State of Connecticut, 2006. http://www.cga.ct.gov/2006/rpt/2006-r-0749.htm. (Accessed May 2013).
- Stuntz, William J. The Collapse of American Criminal Justice. Cambridge, MA: Belknap, 2011.
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