No Equal Justice part 2

He might well have added, “or the color of his skin.” Where race and class affect outcomes, we cannot maintain that the criminal law is just. Equality, however is a difficult and elusive goal. In our nation, it has been the cause of a civil war, powerful political movements, and countless violent uprisings. Yet the gap between the rich and the poor is larger in the United States than in any other Western industrialized nation,4 and has been steadily widening since 1968.5 In 1989, the wealthiest one percent of U.S. households owned nearly 40 percent of the nation’s wealth.
That leaves precious little for the rest.6 The income and wealth gap correlates closely with race. Minorities’ median net worth is less than 7 percent that of whites.7 Nine percent of white families had incomes below the poverty line in 1992, while more than 30 percent of black families and 26.5 percent of Hispanic families fell below that level.8 The consequences of the country’s race and class divisions are felt in every aspect of American life, from infant mortality and unemployment, where black rates are double white rates;9 to public education, where the proportion of black children educated in segregated schools is increasing;10 to housing, where racial segregation is the norm, integration the rare exception.11 Racial inequality, which Alexis de Tocqueville long ago recognized as “the most formidable evil

threatening the future of the United States,”12 remains to this day the most formidable of our social problems. This inequality is in turn reflected in statistics on crime and the criminal justice system. The vast majority of those behind bars are poor; 40 percent of state prisoners can’t even read; and 67 percent of prison inmates did not have full-time employment when they were arrested. 13 The per capita incarceration rate among blacks is seven times that among whites.14 African Americans make up about 12 percent of the general population, but more than half of the prison population.15 They serve longer sentences, have higher arrest and conviction rates, face higher bail amounts, and are more often the victims of police use of deadly force than white citizens.16 In 1995, one in three young black men between the ages of twenty and twenty-nine was imprisoned or on parole or probation.17 If incarceration rates continue their current trends, one in four young black males born today will serve time in prison during his lifetime (meaning that he will be convicted and sentenced to more than one year of incarceration). Nationally, for every one black man who graduates from college, 100 are arrested.18

In addition, poor and minority citizens are disproportionately victimized by crime. Poorer and less educated persons are the victims of violent crime at significantly higher rates than wealthy and more educated persons.19 African Americans are victimized by robbery at a rate 150 percent higher than whites; they are the victims of rape, aggravated assault, and armed robbery 25 percent more often than whites.20 Homicide is the leading cause of death among young black men.21 Because we live in segregated communities, most crime is intraracial; the more black crime there is, the more black victims there are. But at the same time, the more law enforcement resources we direct toward protecting the black community from crime, the more often black citizens, especially those living in the inner city, will find their friends, relatives, and neighbors behind bars.

I argue that while our criminal justice system is explicitly based on the premise and promise of equality before the law, the administration of criminal law—whether by the officer on the beat, the legislature, or the Supreme Court—is in fact predicated on the exploitation of inequality. My claim is not simply that we have ignored inequality’s effects within the criminal justice system, nor that we have tried but failed to achieve equality there. Rather, I contend that our criminal justice system affirmatively depends on inequality. Absent race and class disparities, the privileged among us could not enjoy as much constitutional protection of our liberties as we do; and without those disparities, we could not afford the policy of mass incarceration that we have pursued over the past two decades.

White Americans are not likely to want to believe this claim. The principle that all are equal before the law is perhaps the most basic in American law; it is that maxim, after all, that stands etched atop the Supreme Court’s magnificent edifice. The two most well-known Supreme Court decisions on criminal justice stand for equality before the law, and that is why they are so well known. In Gideon v. Wainwright, the Court in 1963 held that states must provide a lawyer at state expense to all defendants charged with a serious crime who cannot afford to hire their own lawyer.22 The story became a best-selling book and an awardwinning motion picture. Three years later, in Miranda v. Arizona,

to be continued...