“Mass incarceration and selective enforcement of laws is a conscious decisionin this country.”
The idea of an inequitable justice system in the United States is not new. The subject has been broached most extensively in academia’scriminal justice,sociology, andlawcircles, journalists haveconsistentlyandroutinelywritten about it over the years,civil libertiesandhuman rightsorganizations have made it their mission to bring sustained attention to the matter, and the UNhas condemnedthe US on the issue. President Obama has directlyacknowledgedit on a few occasions. Inequality and racism in the criminal justice system is virtually indisputable at this point. But there is still room to debate about just how we conceptualize such inequity.
The scholars and journalists who research and report on the two-tiered justice system often define it in as a binary, top and bottom tier system. However, these tiers are defined differently depending on one's particular lens. One such focus is the analysis of racial disparities at every point along the criminal justice continuum -- from policing, conviction, and sentencing to post-release correctional control and recidivism. Most of the conversations on two-tiered justice fall into this category, where vulnerable populations, including people of color, sexual minorities, the poor, individuals with mental health challenges, etc., the bottom tier, are compared to whites in the top tier who are the privileged (and often times wealthier) group. An example of this would be Michelle Alexander’s book,The New Jim Crow, which largely falls into this category.
“The top tier always contains the corporate and political elite.”
The second focus has been less prominent in mainstream discourse but has gained significant traction after the catastrophes that were the second Iraq war and the financial crisis of 2008. This focus views the corporate and political elite as the top tier, while the bottom tier contains both the aforementioned vulnerable populations andordinary whites with some level of wealth and prestige. Prominent examples of this view of two-tiered justice have been Glenn Greenwald’s frequentcolumnson the subject along with his book,With Liberty and Justice for Some. That’s not to say that there isn’t any overlap, but the main difference between the two views is that ordinary whites, those who might be wealthy in some instances but are not so well connected to enjoy the wholesale immunity that the corporate and political class enjoy, are shifted between the top and bottom tiers. The two constants are that the top tier always contains the corporate and political elite while the bottom tier always contains the aforementioned vulnerable populations -- which, again, includes people of color, sexual minorities, the poor, individuals with mental health challenges, etc.
The implication here is that there are actually three tiers in the criminal justice system -- not two. And which tier one finds him or herself in will determine the response this individual is likely to experience with the criminal justice system.
TIER ONE- Impunity, immunity, zero accountability and ‘Let’s make a deal.’
In Tier One, the Justice Department rushes to the negotiating table to play “let’s make a deal” with the political, corporate and financial elite. Thefinancial crisis of 2008and subsequent deal-making and bailout with taxpayer monies has been referenced extensively in conversations about elite immunity. However, there are several other examples. A somewhat recent one was the General Motorsignition switch scandal, in which General Motors knew about a defect that shut off the engine while driving and prevented airbags from inflating. The worst part of all of this is that General Motorsknew about the defect, but refused to fix it; instead choosing to cover it up. Ultimately, the defect forced General Motors to recall a total of30 million carsand caused a total of124 deaths. Despite this wrongdoing, General Motors executives avoided prosecution. No one went to jail. Instead, General Motors entered adeferred prosecution agreementin which it had to pay a $900 million fine and be subjected to three years of federal monitor oversight. This is the typical response by the US Justice Department to corporate and financial crimes.
“General Motors knew about the defect, but refused to fix it.”
Despite calls for afederal probe, Exxon-Mobil executives will face no jail time for suppressing their own scientists’ climate change research data fordecades. When asked about prosecuting Bush administration crimes (lyingits way into a war of aggression, endorsing a massivetorture regime,warrantless wiretapping,indefinite detention, etc), President Obamasaid“I also have a belief that we need to look forward as opposed to looking backwards.” The Obama Department of Justice would later close key cases which effectivelygranted immunityto Bush-era torture practices.
Director of National Intelligence James Clapperliedto Congress aboutNSA surveillance. Lying to Congress is afelony offense. When people began to make this connection and drawing attention to it, calling for Clapper to befiredand/or prosecuted, the establishment largely went intodamage controlandapologistmode and the crime was quickly forgotten.
Four banks -- Citigroup, JPMorgan Chase, Barclays, Royal Bank of Scotland and USB -- each pleaded guilty tomanipulating currency exchange and interest rates. US Attorney General Loretta Lynch hadscathing wordsfor the banks involved, yet no individual was indicted and each bank was allowed to settle.
“Director of National Intelligence James Clapper lied to Congress about NSA surveillance.”
Wells Fargo created a toxic culture ofcoercing employeesto hit lofty sales targets under threat of being fired. As a result, employees engaged infraudulent activitiessuch as opening unauthorized accounts for customers, opening credit card accounts that customers did not apply for, and even forging client signatures on documents. Only lower-level employees wereterminatedand Wells Fargo will only pay a paltry $1 billion dollarsettlement.
HSBC admitted to laundering billions of dollars for Mexican drug cartels, yet the federal prosecutors made a decisionnot to indictand, as usual, no one went to jail. Instead, HSBC was allowed tosettlefor $1.2 billion (which may seem like a significant amount until one realizes just how much of aprofitthe bank earns each year). Based on a House Financial Services Committeereport, it seems that Obama’s Attorney General at the time, Eric Holder,refusedto bring charges against HSBC for no other reason than that he just did not want to do so. When Holder worked for Convington & Berling before becoming the U.S. Attorney General, he represented Chiquita Brands. Chiquita’s board members were allowed to be anonymized in court and got away with a deal only requiring them to pay $25 million over a 5-year period and avoid any jail time. Their crime? Hiring aterrorist, paramilitary organization(theUnited Self Defense Forces), reportedly to crush labor movements.
“Eric Holder refused to bring charges against HSBC for no other reason than that he just did not want to do so.”
How could Eric Holder, a lawyer formerly employed in the private sector and responsible for shielding corporations from accountability, ever possibly be expected to hold said corporations accountable for egregious wrongdoing as Attorney General of the United States? He can’t. And he didn’t. In fact, he wentright backto Covington & Berling after six years of spouting “too big to jail” rhetoric to protect banks and corporations. This is just one example of the egregious revolving door between the corporate/banking sector and government that ensures the status quo of Tier One immunity remains in place.
TIER TWO- Marked leniency and merciful prosecutions
The second tier corresponds with Michelle Alexander’s top tier: it is reserved for ordinary people, mostly white, who have some degree of wealth and privilege. The law tends to treat this tier with compassion and mercy. So while they do not enjoy the elite immunity of the top tier, they fare much better than those individuals in the lower tier who do not have the privilege of leniency. One example of this was a sheriff’s deputy who used a stun gun on a detainee who eventually died as a result of his injuries. The deputy in the case was later convicted -- and gets to serve his sentenceon weekends. Law enforcement, as the first line of defense to protect the elite group from the masses of poor and working class people, generally has the protection of the state. They are allowed toact with impunityagainst the public and enjoy paid time off; largely thanks to corrupt District Attorneys who do not seemvery eager to indictin a grand jury. This is one of the reasons why theBlack Lives Mattermovement began.
“Law enforcement is allowed to at with impunity against the public and enjoy paid time off.”
Other examples of such leniency include the story of Ethan Couch, the “affluenza” kid. Couchkilled four peoplewhile driving under the influence and was charged with four counts of manslaughter. He did not go to jail. Couch’s attorney argued that the crimes were a result of his “affluenza” -- a completely invented medical condition where, according to his attorney, Couch’s affluence prevented him from understanding the consequences of his actions and led to his reckless behavior. The judge bought it. Couch was sentenced to10 years probation and rehab. Needless to say, many people wereoutragedand pointed out that a poor kid from the inner city would not receive such mercy, which began the “povertenza”meme.
There are other cases that fit this particular model of tragic crimes eliciting minimal punishment. Take Robert H. Richards IV, for example, a white man who comes from a very rich family. He was given probation for the crime of raping his three-year-old daughter. He only received probation. The rationale? The judge felt he would not “fare well” in prison. Another man convicted of rape, Brock Turner, sexually assaulted an unconscious young woman by a dumpster on Stanford University’s campus. The anonymized victim wrote a riveting letter, detailing her traumatic experience and her difficulty coping with it. The usual legal tropes of victim-blaming and slut shaming were employed to defend Turner’s actions and his father weighed in tominimize and dismisshis son’s crime. Authorities refused to show Turner’sreal mugshot,and he was ultimately sentenced to a mere6 months. Why was a rapist given such a light sentence? Because the judge said jail would have a “severe impact” on him. Turner was released after servingonly three months.
“According to his attorney, Couch’s affluence prevented him from understanding the consequences of his actions and led to his reckless behavior.”
In a quick preview of Tier Three, compare Turner’s case to Brian Banks’ case. Banks was wrongfully accused of rape and servedsix yearsin prison. His judge was clearly not concerned about whether prison would have a “severe impact” on him -- he did not get that privilege. DoJ often treats the individuals in this tier with kid gloves. Such was the case with the armed white men whotook over a federal buildingin Oregon for 41 days. Despite the fact they took over this government building, the post office still managed todelivercare packages (and trollpackages) to them. Six of the men wereacquitted, leading to a broader conversation aboutwhite privilegeand how law enforcement would have responded if it were a group ofBlack men or Muslim menwho took over a federal building.
In one recent case, a perpetrator in this tier was given a substantial sentence: Dylann Roof, the man whoslaughtered nine membersof a Black congregation after they welcomed him into their church for fellowship. Roof admitted his motivations for carrying out this heinous act were his extremelyracist and alt-right views. The DoJ and FBI, as usual, went out oftheir wayto dismiss right-wing terrorism (but the latter obsesses over so-called “Black Identity Extremists”). Because Roof committed a crime so despicable, he was sentenced todeath. What makes Roof’s story worth mentioning here is justhowhe was treated, compared to others who were arrested for doingfar less. Dylann Roof killed nine people, but he was arrested gently, and the arresting officers evenstopped at Burger Kingto get him something to eat before taking him to jail. During Roof’s arraignment, thejudgefocused on forgiveness and said Roof’s family were the victims -- not the nine churchgoers who were murdered in cold blood. The people in Tier Three are highly unlikely to ever receive this kind of treatment.
The criminal justice system coddles white criminals and right-wing extremists; going out of its way to dismiss their crimes as a result ofmental health issues, while at the same time, describing crimes committed by those in Tier Three as a result of a defective culture and/or some innate pathology.
TIER THREE- Predatory prosecution and mass incarceration
In Tier Three, you see the most vicious and predatory prosecutions to the fullest extent of the law. The individuals in this tier are poor and working class and experience heavy policing, draconian drug laws, and mandatory minimum sentences. Black and Brown people (and sometimes poor whites) are usually targeted. Individuals in Tier Three do not receive the leniency that the folks in Tier Two enjoy.
TheWar on Drugswas apolitical manifestationlargely targeting Black and Brown people formass incarceration. This is a result of institutional and systemic racism and unfair laws -- such as thecrack vs. powder cocainesentencing disparity -- that exists largely to put people of color into prison (the so-calledFair Sentencing Actreduces the disparity by only making it less egregious, not eliminating it completely). Whites and Blacksuse drugsat similar rates; whites aremore likely to sellnarcotics, but Black people are far more likely to go to jail for drug charges.
“The War on Drugs was a political manifestation largely targeting Black and Brown people formass incarceration.”
It’s indisputable at this point that there is a high degree ofselective enforcementof laws when it comes to policing. Even in areas where marijuana is legal and/or decriminalized, Black people arefar more likelyto be arrested for possession of marijuana. Many aspects of the lives of people in Tier Three are criminalized. Homelessnessis criminalized. Mental illnessis criminalized. Sexual minorities(particularly those of color)arecriminalized. Povertyis criminalized. And discrimination is rampant.
The US has relied on a for-profit incarceration model that needs bodies to fill privately owned prisons. It is aperverse incentiveand massive racket, but didn’t garner much attention until a judge tookkickbacksfor sentencing suburban kids to jail in a “cash for kids” scandal. To highlight specific examples, take the case of Kelly Williams-Bolar, a mom who was arrested for essentially wanting a better education for her children. Ms. Bolar was arrested and sent to jail for sending her children to abetter, predominantly white school district,despite the fact that her children's’ father lived in the district. It is widely known that schools in the inner-city Black and Brown neighborhoods aredisastrously underfundedand that teachers in said schools have lessexperience and training-- sometimes even to the point they areunqualifiedto teach. To send someone to jail for wanting to send their child to a school with resources, is a salient example of the type of cruelty individuals in this tier face.
“The US has relied on a for-profit incarceration model that needs bodies to fill privately owned prisons.”
The strategy of the criminal justice system here seems to be criminalizing Blackness and Brownness, which is unconstitutional. Therefore, lawmakers and law enforcement must invent methods to circumvent these restrictions. This is done by criminalizing trivial things likesaggingpantsand invoking racist policies likebroken windowspolicing,driving while Black, andstop & frisk. Municipalities like Ferguson, Missouri were (are?) primarily targeting people of color for the most egregiously petty offenses (dubbed lifestyle “crimes”) and committing systemic human and civil rights abuses to make up forshortfallsin municipal funding. In fact, the DoJ released a scathingreportdocumenting examples of Ferguson police handing out citations for barbecuing in front yards, drinking beer close to a grill, having amissing tireon aparked carin a private driveway, and arresting a man on trumped up charges forrestingin his own car. A similarreportwas released highlighting police abuses in Baltimore.
Another caveat of this tier is the omnipresent assumption of guilt. We saw this with the Starbucks incident in Philadelphia, where a store manager called the police on two Black men withintwo minutesof entering the cafe for a business meeting. The two men werearrested. This situation seemed to kick off a chain reaction of white people calling the police on Black people for the pettiest of things:moving into a new walk up on the Upper West Side,taking a nap while studying, orthrowing a barbeque by the lake-- essentially calling the authorities on Black people for the “crime” of existing. Of course, this isnot a new phenomenon-- but these events put the conversation but into the mainstream.
“Ferguson police handed out citations for barbecuing in front yards, drinking beer close to a grill, having a missing tire on a parked care in a private driveway.”
Calling police on people of color for living their lives and not breaking the law can have material and deadly consequences. The individuals in Tier Three are the intended victims of mass incarceration, cruel and unusual punishment, and are at much greater risk of extrajudicial killings by police.
Conflating both, Alexander’s and Greenwald’s definitions of a two-tiered justice system, presents a more descriptive and nuanced tiered system. There are exceptions and examples of people switching tiers but the point is that they are exceptions. The rule generally applies.
So, to recap:
Tier one is reserved for those individualswho canliepathologically to get the wars of aggression they want, destroy entire nations, kill millions of people, bomb Doctors Without Borders hospitals (and investigate itself!), assassinate peopleby dronewith impunity, sanction whomever they want regardless ofwho is really affectedand say it wasworth it, fund and arm terrorist factions for geopolitical reasons,sadistically gloatover successfully carrying out illegal regime change, use their NGOs to instigatecolor revolutionsandgovernment subversion, collapse entire economies, pollute the earth, “[torture] some folks”,invadeany country they choose, etc., and do so with impunity and absolutely no accountability.
We have a second group of people who enjoy some social, political, and economic privilege and are by-and-large given the benefit of the doubt in the criminal justice system as statistics clearly show. The only caveat for this group is that they join Tier one in maintaining the status quo and enjoy those privileges awarded to them by doing so. If a member of this group fails to do so, they will be knocked down to Tier three and treated in the same manner as Thomas Drake, Chelsea Manning, Edward Snowden, John Kiriakou, and many others.
“The US is not the ‘nation of laws’ it proclaims itself to be.”
Finally, we have a group of people endlessly and predatorily prosecuted by the State. A group of people preyed upon by the corporate, financial, and political elite to extract resources, be it labor or wealth. Individuals in Tier three are more likely to have the worst of everything -- dangerous and blighted neighborhoods, poor quality schooling, subpar job prospects, and very few opportunities. As such, this group experiences more negative outcomes during the life course and enjoy fewer life chances. Individuals in this tier are condemned to fill the private prisons owned and operated by the political and financial elite, receive pennies on the dollar providing labor to corporations, extorted by local governments to fill budget gaps, etc.
In conclusion, the US is not the so-called “nation of laws” it proclaims itself to be if those laws are selectively enforced. It becomes quite challenging to masquerade as the “land of the free” when it has thelargestprison population, by design, in the entire world. Ironically, the US State Departmentpublishesa Human Rights Report for each nation around the globe. Mass incarceration and selective enforcement of laws is aconscious decisionin this country – several states are diverting more dollars into corrections rather than education. Clearly, some self-reflection is in order here. The State Department would do well to right an honest human rights assessment for the United States. The first step to recovery is admitting that there is a problem.
Ken Peeples is a socio-behavioral researcher who writes frequently about anti-Black racism and US geopolitics. He can be reached at [email protected]