Racism and Discrimination in 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 must be addressed, particularly with respect to bail reform, white collar crime, and policing. This paper addresses 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. This was pursued particularly aggressively 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., pressuring individuals charged with an offense to accept a plea deal to avoid a costly trial), 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 poor (ACLU, 2019).

With six different types of bail—citation release, surety bond, recognizance, property bond, immigration bond, and cash bond—there are many ways for individuals to obtain release after being charged with an offense. However, even with these options it is not always possible for individuals to make 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 such as The Sentencing Project, The Marshall Project, the St. Louis Action Committee, and the Arch City Defenders have pushed for bail reform. However, 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 extensive criminal records 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 return to while they wait for trial—but individuals who have an extensive criminal record are not the ones who should be immediately released to return to a life of crime. Bail reform was a cause motivated by a sense of social justice, but reform must be conducted in moderation; otherwise, it risks swinging to the opposite extreme and creating a worse and even more untenable situation. The example of Prohibition in the 1920s is instructive, because society moved from tolerating a social problem of drinking to creating an entire underworld for organized crime to thrive in. Bail reformers must think carefully about the repercussions of their actions because the safety of society is at stake.

For that reason, the policy that should be pursued is one grounded in social justice, but individuals must be considered on a case-by-case basis. A universal policy is inefficient and allows too many individuals with extensive criminal records back onto the streets. First-time offenders should be the primary target of bail reform. Multiple offenders should be the ones who receive stricter bail parameters.

White Collar vs. Blue Collar Crime

When it comes to white collar crime, there is also the problem of who escapes accountability and why. Because the criminal justice system focuses primarily on blue collar crime, the inherent racism driving the system turns a blind eye to white collar crime—defined as crime committed by individuals of a higher socioeconomic class. It is crime committed at a different level of society rather than on the streets, such as robbery, rape, or murder (Rosoff, Pontell & Tillman, 2003). White collar crime is typically more sophisticated, complex, and hidden from public view. It is essentially crime committed at the corporate level—or through corporate means—to steal, cheat, defraud, or exploit loopholes in digital or financial systems through illegal means for personal 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 exploitative tactics by more powerful governments; it can include coup attempts; and it can include crimes against a state's own people, such as stealing tax revenues or colluding with corporations to grant tax breaks or contracts that are unavailable 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 shadow of public awareness.

There can be significant overlap between white collar crime and state-organized crime, as white collar criminals can interact with members of the government to facilitate their criminal operations. Many people, for instance, believe the Wall Street bailouts of 2008 were essentially a form of collusion between white collar criminals and state-organized crime. Former Goldman Sachs and other Wall Street executives were embedded within the U.S. Treasury Department, which ensured that AIG and, by extension, Goldman Sachs, J.P. Morgan, and other banks received bailout money—even when the SEC was charging these organizations with fraud. It was as though one government organization was trying to prosecute while another was trying to protect its partners in crime. Thus, there is not always a firewall between white collar crime and state-organized crime; sometimes they go hand in hand.

Then there is the issue of financial crime, which can include money laundering, terrorism financing, tax evasion, fraud, embezzlement, counterfeiting, identity theft, and forgery—any type of crime in which finances are involved. Sometimes dirty money is laundered through casinos, the art world, or restaurants. Sometimes money meant for a fund or trust is used to finance a lavish personal lifestyle. Corporate crime differs slightly in that the individual commits crimes on behalf of the employing corporation, whereas financial crime is committed for personal gain.

As the criminal justice system focuses mainly on blue collar crime, the need for reform is evident. Pettit and Western (2004) show that the prison population increased sixfold between 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 of an inherently racist system that is endangering criminal justice reform. Private prisons have transformed criminal justice into a for-profit industry, 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 that over-represents minorities, the bias involved must be addressed.

At the same time, the way white collar crime is prosecuted—when it is prosecuted—may also need reform. It should be remembered that discrimination is a two-way street. Those who have been discriminated against can end up discriminating against those of a certain class whom they perceive as oppressors. For example, there is considerable anger among the 99% toward the 1%, and as the perception is that the 1% commit and tend to escape accountability for white collar crimes, obtaining a fair jury trial in white collar cases becomes more difficult. There is likely to be an inherent bias among jurors to find defendants guilty in such cases, as Pavlo (2012) points out. Nine out of ten cases that go to trial deliver a guilty verdict (Pavlo, 2012). 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 of objectivity, since 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 on the basis of implicit bias. Even when the evidence consists only of hearsay—such as prison inmates offering testimony about insider trading—trial juries are still more likely to convict. In blue collar crime cases, there are more acquittals when this is the only evidence presented (Pavlo, 2012). In other words, trial juries are more sympathetic to defendants in blue collar crime cases than in white collar ones. There is 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 is a reform-minded approach built on preventing discrimination from creeping into the system. This means the system must 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, 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 alleviate problems at the blue collar level of crime and reduce the over-representation of minorities in for-profit prisons.

This policy can work for white collar offenders as well. Jurors who are part of the 99% are likely to carry some bias against defendants charged with white collar crime, as the conviction rate is far above the national average. Greater caution should be exercised by prosecutors in the interest of fairness and justice. These cases should also be prosecuted before a jury of the defendant's peers—people of the same socioeconomic class. This principle should apply equally to white collar defendants and blue collar defendants alike.

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 firmly in mind, the underlying problems will not be addressed. The problems at the heart of the system are inherently rooted in discrimination and racism—whether in the way those charged with blue collar crimes are prosecuted or in the way those charged with white collar crimes are treated. Discrimination must be the central focus of reform; otherwise, it will continue to corrupt every effort to achieve a more just system.

References

ACLU. (2019). ACLU lawsuit goes after $2 billion bail industry that profits off poor people. Retrieved from https://www.aclu.org/press-releases/aclu-lawsuit-goes-after-2-billion-bail-industry-profits-poor-people

Chambliss, W. (1989). State-organized crime. Criminology, 27, 183–208.

Davis, A. (2000). Masked racism: Reflections on the prison industrial complex. [Article reprinted from Colorlines]. Indigenous Law Bulletin, 4(27), 4.

Hehman, E., Flake, J. K., & Calanchini, J. (2018). Disproportionate use of lethal force in policing is associated with regional racial biases of residents. Social Psychological and Personality Science, 9(4), 393–401.

Pavlo, W. (2012). Can white collar defendants get a fair trial? Retrieved from https://www.forbes.com/sites/walterpavlo/2012/12/19/can-white-collar-defendants-get-a-fair-trial/

Pettit, B., & Western, B. (2004). Mass imprisonment and the life course: Race and class inequality in US incarceration. American Sociological Review, 69(2), 151–169.

Rosoff, S., Pontell, H., & Tillman, R. (2003). Looting America. New York, NY: Prentice Hall.

Tate, S. A., & Page, D. (2018). Whiteliness and institutional racism: Hiding behind (un)conscious bias. Ethics and Education, 13(1), 141–155.

Vitiello, M. (2002). Three strikes laws—A real or imagined deterrent to crime. Hum. Rts., 29, 3.