INTRODUCTION: Crime, Inequality and Justice (Excerpt)
The standard view of criminal justice is that criminal law is built on a consensus about harmful acts that reflect social norms; that police investigate crime and arrest wrongdoers; that prosecutors weigh the strength of the evidence and then decide when to press charges; that juries decide on guilt or innocence; that judges sentence according to guidelines that eliminate disparities; and that people objectively study crime and criminals to ultimately reduce the amount of victimization. That view is not wholly incorrect, but the standard view is problematic because in the bigger picture, changing social, political, and economic conditions shape the formation and application of the criminal laws of the United States. Crime and criminal justice are shaped by the political economy, which is a structural analysis of how politics, law, and economics influence one another. As such, official crime rates do not explain the dynamics of the criminal justice system as much as they explain social stratification, the surplus population—those who are unemployed or unemployable and are thus considered the "dangerous class"—technology, and prevailing ideologies. This means that the realities of crime and justice have always reflected, and usually re-created, class, race/ethnic, and gender relations.
For example, slavery rather than prison had been the dominant form of social control for African Americans before the Civil War. When the Thirteenth Amendment
(ratified in 1865) freed the slaves, it removed that system of control and created serious anxiety among the white population. Slaves went from property to economic competition; black men were freed at a time when many Southern white women were widowed or single because of the large number of young white men killed during the war. Southern whites wanted another system for social control, but building prisons at that time was impossible. The war had been fought primarily in the South, and that was where most of the destruction had occurred. The repairs required labor, which was in short supply, again because of the large number of young men killed in the war. Additionally, labor-intensive crops grown on plantations still required attention. Thus, Southern states passed black codes that penalized a number of behaviors by blacks that whites found rude, disrespectful, or threatening. After the blacks were convicted, they would be leased for labor to serve their sentence. Plantation owners could now lease inmates rather than own slaves. Prisons also changed form during the Industrial Revolution, and more recently, boot camps came about because the government was closing military bases but had an increasing criminal—and juvenile— justice population.
Because crime and justice are shaped by the political economy, crime and crime control are also inseparable from the changing relations of inequality, hierarchy, and power. Crime and crime control are thus important locations where inequality is recreated or challenged. Domestic violence, rape, and fraud by financial institutions that enriches executives while devastating millions—each crime, while committed by different types of offenders for very different reasons, reflects and re-creates an aspect of inequality. Likewise, inequality and hierarchy are re-created or challenged by both the explanations given for these different crimes and the decision of whether the perpetrators are pursued or not by the criminal justice system.
This book sees crime and criminal justice as socially created and as having both subjective and objective realities. That is, harms done to people are real, but the law chooses to criminalize only certain ones. Manslaughter is a death because of negligence, but it applies only to individuals; there is no corporate manslaughter law in the United States. Great Britain, Canada, and Australia all have various corporate manslaughter provisions that apply to workplace deaths caused by negligent conduct of supervisors and/or executives. The social reality of crime and crime control are further shaped by the decisions of police about who is arrested, by prosecutors about whether to pursue a case and which charges are most appropriate, by judicial processes that find certain offenders guilty, and by judicial decisions about who goes to prison (Reiman and Leighton 2013). Statistics appear to be objective measurements about crime but are the result of decisions and processes that are influenced by class, race, and gender. Media decisions about what to report and which "frame"—or "spin"—to put on a story add to the ways that the reality of crime and justice are socially created.
These structural-legal relations are dynamic, subject to the changing needs of the dominant relations in the prevailing political economy. Over the past millennium, for example, different types of laws have evolved in response to the complexity of political, economic, and social relations. For example, the division between "public" law (acts or omissions that offend or injure the state) and "private" law (acts that offend or injure only persons) has evolved over time in response to changing conditions and political powers. (Public laws include administrative and regulatory law, constitutional law, and criminal law. Private laws, also referred to as civil laws, include the laws of property, contracts, and torts.)
Historically, during the ancient regime or before the rise of mercantilism in the fourteenth and fifteenth centuries, there were no criminal laws as we know them. There were only civil offenses or torts. A tort was (and still is) a private or civil wrong and/or injury that breaches a legal duty or obligation allegedly independent of the interests of the nation-state. For example, one person sues another for personal injury rather than having the state file assault charges. When a tort occurs, the offense or harm (injury) is subject to a fine, restitution, or some other form of compensation to make the victim whole again. Civil offenses, in other words, are not punishable by loss of liberty or life subject to the intervention of the "nation-state." By contrast, criminal prosecutions and punishments first appear with the simultaneous decline of feudalism and the rise of capitalism, which ushered in the early developments of the modern state, capital, labor, private property, and mercantilism. Many of these laws, some six hundred years old, are still operating today. Many other criminal laws have come and gone during this same period.
For example, the "crime of bankruptcy" was punishable by death in the English courts in the late 1700s because it was defined as an "act of debtor fraud, de facto theft by absconding with property and avoiding judicial process and the paying of just debts" (Pomykala 2000). While it was never treated as a capital offense in the United States, the framers of the Constitution did add bankruptcy to the list of federal powers used to prevent fraud. Until the mid-nineteenth century, plaintiff creditors could accuse defendants of bankruptcy or "debtor-perpetrated crime" in a court of law. Eventually, "bankruptcy was transformed from a branch of law for the relief of creditors against debtor fraud intended to foster the payment of debts into a pseudo-social welfare program for debtor relief. Modern bankruptcy law legalized what antecedent jurisprudence first sought to prevent, the nonpayment of debt" (Pomykala 2000). Now corporations routinely engage in strategic bankruptcy, which is legal and encourages "firms to use bankruptcy to avoid lawsuits; to decrease or eliminate damage awards for marketing injurious products, polluting or other corporate misconduct; [and] to abandon toxic waste sites" (Delaney 1999, 190). Even in bankruptcy that involves reorganization rather than liquidation, "financial risk can be shifted away from more powerful institutional creditors and the corporation itself and onto the backs of more vulnerable" and less organized groups, meaning workers and consumers (Delaney 1999, 190).
By contrast, many criminal laws that first emerged to control poverty, street crime, and the disorder of the dangerous classes in mercantile England are still with us today in one form or another. Some laws can be traced back to the British vagrancy statues of 1349 or the Elizabethan Poor Law of 1601. In 2014, these and other related crimes of the marginal and powerless classes overwhelmingly consume and preoccupy the activities of the US criminal justice system as a whole. In fact, most histories of crime control acknowledge that the criminal justice policies of the postindustrial United States are the preferred methods for managing rising inequality and the surplus populations of the United States (Michalowski and Carlson 1999; Parenti 1999; Shelden 2000). Surplus populations refer primarily to economically marginal persons and those who are unemployed or unemployable; they are people with little attachment to the conventional labor market and little "stake in conformity" (C. Anderson 1974). Because of this status, surplus populations are also called "marginal classes" or "dangerous classes." Of course, the war on crime is not publicly discussed as an explicit war on the "down-and-out" or conceptualized as involving the enforcement of inequality and privilege. But the result of the current war on crime has been to fill an ever-expanding prison system with the poor and a disproportionate number of young minorities.
These dynamics are not new, and a historical overview of social control reveals that on the frontier as well as in the industrial United States, the administration of justice was about regulating and controlling the "dangerous classes." Freed black slaves were subject to harsh Jim Crow laws, and the Chinese were highly criminalized after they finished work on the transcontinental railroad. Still, over time, the criminalizing of behavior has been subject to periods of legal and constitutional reform that have gradually expanded the meanings of "due process" and "equal protection" for a wider and more diverse group of people.
Despite the vaunted democratization of criminal justice during the late nineteenth and twentieth centuries, the effects of crime control have always been to the disadvantage of the nation's most disentitled and marginalized members (Auerbach 1976; Barak 1980; Harring 1983; Walker 1980). When it was a young nation, the political and legal apparatuses of the United States were dominated by the organized power of wealthy, white, and male interests to the detriment of slaves, freedmen, workers, nonworkers, women, people of color, and (ex-) convicts. Since our nation's beginnings, then, the various struggles for justice, inside and outside the administration of criminal law, have included the goal of empowering people and granting all access to the same political and legal bodies of rule making and rule enforcing. As the notion of struggle suggests, history is not a linear progression of ever-greater equality. Achievements can result in backlashes, and those who are "more equal" always resist gains of the "less equal." Moreover, new forms of inequality often arise to take the place of old forms, and being granted a right in law does not make it a reality.
The next sections provide brief overviews of how class, race, and gender have been intertwined with the history of crime and justice. This is not meant to be definitive but to start a process of thinking separately about class and race and gender before trying to understand what happens at their intersections. To that end, the section that follows emphasizes the importance of understanding intersections and highlights some assumptions that guide our analysis. Because criminal justice is so often referred to as a "system," a subsequent section discusses some additional frames of reference for understanding crime control so that readers can have a fuller sense of the complexities of criminal justice.
[Excerpt ends, Introduction ontinues with 'Class, Race Gender and Justice: A Historical Overview']