Racism, discrimination, and criminal justice reform challenges

Racism, Discrimination, and the Downfall of Criminal Justice Reform Introduction
Racism, discrimination, prejudice and bias are inherent factors in the criminal justice system, as has been shown by researchers and activists alike (Davis, 2000; Hehman, Flake & Calanchini, 2018; Pettit & Western, 2004; Tate & Page, 2018). While reform has been attempted in parts of the country, such as New York City’s recently enacted bail reform, there are still fundamental issues that have to be addressed—particularly with problematic issues in bail reform, white collar crime, and policing. This paper address issues in policy and governance related to homeland security measures with regard to criminal justice reform through the three-pronged focal point of bail reform, white collar crime, and policing and defense. Bail Reform In the 1990s, the dominant attitude in criminal justice was for America to get tough on crime. It did so particularly in New York City, where the Three Strikes policy was implemented in an effort to clean up the streets, end violent crime in neighborhoods and restore a sense of safety. Criminals faced strict sentences and no leniency (Vitiello, 2003). Over time, however, advocacy groups began to take more notice of abuses in the criminal justice system, particularly with respect to racial profiling, plea deal abuses—i.e., urging individuals charged with an offense to accept a plea deal to avoid a costly trial after which they would not be shown any mercy if found guilty, the use of lethal force, and bail problems. Of these, one of the most oppressive systems is the bail system, which takes advantage of impoverished individuals. Today, the bail industry is a $2 billion industry that profits off the impoverished (ACLU, 2019).
With six different types of bail—citation release, surety bond, recognizance, property bond, immigration bond and cash bond—there are myriad ways for individuals to obtain release after being charged with an offense. However, even with these ways it is not always possible for individuals to obtain bail. For that reason, the ACLU (2019) reports that 440,000 people or 70% of people incarcerated “are there pre-trial, often because they can’t afford to pay a bail requirement set for their freedom.” Advocacy groups like The Sentencing Project, The Marshall Project, and the St. Louis Action Committee and the Arch City Defenders have pushed for bail reform. But there are problems with bail reform as well. For instance, New York City is now experiencing a rise in crime rates as bail reform has drastically changed who can be held and for how long. Even people with an extensive crime record are being released without discrimination.
The trouble here is that discrimination can be negative—but discretion can be positive. It is necessary to find a balance between discrimination and zero discretion whatsoever. For the sake of public safety and stability, the criminal justice system has to be more engaged, more ethical and more aware of the ramifications of its actions. People have lives that they need to get back to while they wait for trial—but individuals who have an extensive crime record are not the ones who should be released immediately to get back to a life of crime. Bail reform was a cause motivated by a sense of social justice—but reform has to be conducted in moderation otherwise it risks running to the opposite extreme and creating a worse and even more untenable situation. The example of Prohibition in the 1920s is one that applies because it went from tolerating a social problem of drinking to creating an entire underworld for organized crime to thrive in. Bail reformers have to think about the repercussions of the actions because the safety of society is at stake.
For that reason, the policy that should be pursued here is one of social justice but individuals have to be looked at in a case by case basis. A universal policy is inefficient and allows too many individuals with extensive criminal records back on the streets. Those who are first time offenders should be the primary target of bail reform. Multiple offenders should be the ones who are receive stricter bail parameters. White Collar vs. Blue Collar Crime When it comes to white collar crime there is also the problem of who gets away with it and why. Because the criminal justice system focuses primarily on blue collar, the inherent racism driving the system turns a blind eye to white collar crime, which is defined crime committed by individuals of a higher class than blue collar workers: it is crime committed at a different level of society rather than crime committed on the streets, such as robbery, rape, murder, etc. (Rosoff, Pontell & Tillman, 2003). It is typically more sophisticated, complex and hidden from the eyes of the common people. It is essentially an individual at the corporate level or operating through corporate means to steal, cheat, defraud, or abuse some loophole in digital or financial systems and exploit inefficiencies through illegal means to his advantage.
White collar crime also parallels state organized crime, which is crime committed by government actors. This can include turning weaker nations into debt colonies through exploitive tactics by the more powerful government; it can include such activities as coup attempts, and it can include crime against the people of the state by the government, such as thieving tax revenues or colluding with corporations to give them tax breaks or contracts that are not available to others in a fair and equitable system (Chambliss, 1989). The criminal justice system rarely prosecutes white collar criminals as white collar crimes typically fly under the radar and exist in the realm of the shadow of crime.
There can be some overlap between white collar crime, as white collar criminals can interact with members of the government to facilitate their criminal operations. Maybe people for instance believe the Wall St. bailouts from 2008 were basically a form of collusion between white collar criminals and state organized crime, as former Goldman Sachs and other Wall St. executives were embedded within the U.S. Treasury Department, which made sure that AIG and by extension Goldman, J.P. Morgan and the other banks received bailout money—even when the SEC was charging these organizations with fraud. It was as though one organization in the government was trying to prosecute while another was trying to save its partners in crime. Thus, it is not as though there is always a firewall between white collar crime and state organization crime. Sometimes they go hand in hand.
Then there is the issue of finance crime, which can include money laundering, the funding of terrorism, tax evasion, fraud, embezzlement, counterfeiting, identity theft and forgery. It is any type of crime in which finances are involved. Sometimes dirty money is laundered using casinos or the art world or restaurants. Sometimes money meant for a fund or trust is used to finance one’s own personal lavish lifestyle (the Clinton Foundation is accused of this). Corporate crime is a little different in the sense that the individual is committing crimes on behalf of the corporation that employs him while the person committing finance crime is doing so for his own personal gain.
As the criminal justice system focuses mainly on blue collar crime, there is an evident need for reform. Pettit and Western (2004) show that the prison population increased six fold from 1972 and 2000 and that “by 2002, around 12 percent of black men in their twenties were in prison or jail” (p. 151). That is an enormous indicator of the focus given to blue collar crime and the inherently racist system that is endangering criminal justice reform. Private prisons have made criminal justice into a for-profit industry as well, which means there is a severe conflict of interest at the heart of justice reform. When a private industry benefits from a rising prison population, which over-represents a minority population, the bias involved has to be addressed.
At the same time, the way white collar crime is prosecuted—when it is prosecuted—may need to be reformed as well. It should remembered that discrimination is a two way street. Those who are discriminated against can end up discriminating against those of a certain class that they believe to be oppressors. For example, there is a lot of anger among the 99% towards the 1% and as the perception among people is that the 1% are the ones who commit and tend to get away with white collar crimes it makes getting a fair jury trial a bit harder in white collar crime cases. There is likely to be an inherent bias among jurors to want to find the defendants guilty in such cases, as Pavlo (2012) points out. 9 out of 10 cases that go to trail deliver a guilty verdict, Pavlo (2012) shows. This is a very high rate of conviction and suggests that juries are simply not sympathetic to defendants accused of white collar crimes. It also suggests a lack objectivity, as all that is necessary for an acquittal is a reasonable doubt. Is one to believe that in 90% of white collar crime jury trials there is no reasonable doubt?
The statistics would appear to say so—but interpreted another way they could also suggest that trial juries are not competent to hear these cases and are instead convicting out of implicit bias. Even when the evidence is hearsay only—i.e., prison inmates offering testimony that such-and-such traded on insider information, trial juries are still more likely to convict. In blue collar crime cases, there are more acquittals when this is the only piece of evidence (Pavlo, 2012). In other words, trial juries are more sympathetic to the defendant in blue collar crime cases than they are to the defendant in white collar crime cases. There does appear to be a major problem here that needs to be addressed, if only because of the cultural animosity between the 1% and the 99%.
The policy that should be enacted here is to create a reform-minded approach that is created on the basis of preventing discrimination from creeping into the system. This means that the system has to be prudent about how it prosecutes crime and how it justifies its use of private industry to punish convicted offenders. Alternative sentencing is an area that should be explored more readily for offenders, as it embraces an aspect of social justice and rehabilitation that is lacking in the current system. The longer the system goes without incorporating alternative sentencing, such as restorative justice programs, the more entrenched it becomes in its discriminatory ways. This would help to alleviate the problems seen at the blue collar level of crime, and it would help to reduce the over-representation of minorities in for-profit prisons today.
This policy can work for white collar offenders as well. Jurors who are in the 99% are likely to have some bias against defendants charged with white collar crime as the rate of conviction is so high above the national average. More caution should be taken by prosecutors, in fairness and justice, and these cases should be prosecuted by a jury of the defendant’s peers, which means people of the same class. This should apply to both white collar defendants and blue collar defendants. Policing and Defense Discrimination and racism can also cause rot to form at the policing level where reform is also needed. The responsibility of the law in preventing harm to oneself and upholding social morals varies from state to state, but if states promote and foster a racist or discriminatory culture, policing can become problematic. Community policing should be the top priority of all law enforcement. The responsibility of the law in preventing harm to oneself is ultimately a controversial one in a liberty-loving society. People believe they should have the right to freedom, to do with themselves what they want. Criminalizing prostitution, drug use, or drinking does not mean that the human desire for these things goes away. Nor does making these things legal mean that it is okay or moral for a person to do them. When vices are legalized, it is just a recognition that people in society are going to have vices and will want to indulge them. Police need to represent the community’s values rather than try to apply their own values onto a community. The police are there to serve and protect—not control. Thus, community policing needs to be the basis of action to prevent policing reform from being undermined by a continuation of discriminatory policies.
Additionally, the system of defense has to be considered. Defense attorney misconduct including ineffective counsel, subordination of perjury and use of questionable expert witnesses is a major problem, especially for the poor. A person, no matter his socio-economic status, has a Constitutional right to mount a defense, and if his lawyer is not representing him effectively, the person is not receiving his just due before the law. Ineffective counsel is one example of this: The Sixth Amendment guarantees criminal defendants the right to effective legal representation. For example if a lawyer does not conduct pretrial discovery and thus does not object to evidence presented in court that was obtained illegally then that lawyer is demonstrating ineffective counsel. Too many poor people are convicted because of defense attorney misconduct. Other instances occur as well. Subordination of perjury occurs when a lawyer tells the defendant to swear a false oath to tell the truth in the court. This is akin to the lawyer telling the person to commit a crime—because that is what it is—a crime. Then there are times when questionable expert witnesses are used when a lawyer fails to get an expert witness to counter another’s testimony of evidence from the prosecutor. From a deontological perspective—i.e., the standpoint of duty ethics—the lawyer owes a duty to the individual he is representing. His moral duty is towards that person, and if he is failing in his duty to defend him, his conduct is unethical. The reform of criminal justice has to keep these issues in mind, otherwise discrimination and racism will sink the efforts at reform completely.
Conclusion
From issues of bail reform to the prosecution of both blue collar and white collar crime to the subject of policing and defense, reform is needed at every level of the criminal justice system. However, unless reformers approach these issues with the realities of discrimination and racism in mind, the problems are not going to be addressed. The problems at the heart of the system are inherently based on discrimination and racism. Whether it is the way those charged with blue collar crimes are prosecuted or those with white collar crimes. Discrimination has to be the focus—otherwise it will continue to corrupt all efforts at reform.

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