Criminal Justice (5): Class and Race
"Some Animals Are More Equal Than Others"
On June 23rd, the FBI raided the home of former Trump Assistant Attorney General Jeffrey Clark (the star of one of the early January 6th hearings). Naturally, he went on Tucker Carlson’s show to complain about his treatment. According to the New York Post,
Former Assistant Attorney General Jeffrey Clark — former President Donald Trump’s pick to head up the Department of Justice in the final days of his administration — told Fox News “I don’t recognize the country anymore” Thursday night after his home was searched by federal authorities one day earlier.
“There was loud banging outside my door. I quickly figured out there were agents there. I asked for the courtesy to put some pants on and was told ‘no,’” Clark told “Tucker Carlson Tonight.” “They swept the house. Twelve agents and two police, Fairfax County police officers searched it for more than three hours.”
The notion of Jeffrey Clark having to submit to a house search while in his pajamas is one of the humorous tidbits of the whole “let’s subvert the voters’ wishes” saga. Clark went on to describe the raid as “Stasi-like”, obviously being ignorant of what life was really like in East Germany before the wall fell.
On March 13, 2020, Louisville police conducted a no-knock warrant at the apartment of Breonna Taylor. Here’s BBC’s summary of what happened next:
Plainclothes police, executing a search warrant, forced their way into the apartment where Breonna Taylor was in bed with her boyfriend, Kenneth Walker, shortly after midnight.
Mr Walker fired a shot from his licensed gun, later telling police he thought that Ms Taylor's ex-boyfriend, Jamarcus Glover, had broken in, according to the New York Times.
Officials say Mr Walker's bullet struck Mr Mattingly in the leg. The three officers returned fire, discharging 32 rounds, according to a ballistics report from the FBI.
Ms Taylor was shot amid the commotion and died on the hallway floor.
In both cases, law enforcement wanted witness information. Neither had been identified as criminals (and Taylor was never accused of illegal behavior). While there were protests in response to Breonna’s death, nobody went on talk shows and said that they didn’t recognize their country. Nobody said that the Louisville police were acting like totalitarian enforcers.
When people like Jeffrey Clark receive a visit from the FBI or local law enforcement, they sometimes complain that they are being treated like “a common criminal” instead of the upstanding citizens they believe they are.
When people hear that Breonna Taylor’s ex-boyfriend was wanted for drug offenses, she is often assumed to be complicit. That’s why the police went to her apartment in the middle of the night.
It’s a sad reality that the criminal justice system responds differently to rich white men compared to working or lower class black people. As Bryan Stevenson wrote in Just Mercy, “we have to reform a system of criminal justice that continues to treat people better if they are rich and guilty than if they are poor and innocent.”
What accounts for this differential treatment?
It’s an easy out to simply assert that law enforcement and the courts are racist by design. Many have made this claim and there’s something to it. But that is too easily refuted by a “not all cops” claim and FaceBook pictures of black officers playing pickup basketball with neighborhood kids.
I suggest that there are four contributing factors that are even more important than overt or implicit racism. They are Power, Respect, Expertise, and the Doc Ock problem.
First, we have the issue of Power. When the Department of Justice conducted their review of conditions in Ferguson, MO after the death of Michael Brown and the subsequent protests, they found that the city had engaged in a long-term practice of preying on the finances of the lower class, black part of the population. Fines for suspended licenses tags or broken tail lights would pile up. People unable to pay fines would be referred to court and were frequently unable to make the date or resolve the fine. This resulted in more fines and arrest warrants if they were stopped. Later investigation showed that by 2015, nearly a quarter of Ferguson’s city budget was funded by these fines.
Why did the Ferguson police engage in this practice? Because it worked. They were completely within their power to make those stops and assess those fines.1 They had discretion as to whether or not to assess them, but they were legal on their face. They had the legitimate power to act and the population they were dealing with had little recourse (they didn’t use this tactic in the more affluent parts of Ferguson).
What happens when the criminal justice system is dealing with powerful people (who might just have instigated an insurrection?). They have to tread very carefully. They are wary of offending the powerful people and having the enforcers become the focus. The more powerful have connections to other powerful people who can make life very difficult for criminal justice officials down the road.
Second, we have the issue of Respect. I wrote in my law enforcement newsletter that showing strength and authority is important. This comes into play when officers stop someone and immediately escalate the situation if the driver doesn’t show due deference to the officer in exactly the right way. The officer will demand respect while failing to show respect to the other. That’s how situations like Sandra Bland happen. It’s why a black off-duty police officer will be forced to the ground by other officers in his department.
What happens when the arrestee is a white collar criminal in a nice suit and tie? Great care is taken to properly take care of the individual.2 They are most likely to be released on their own recognizance (because they have a job and are an otherwise upstanding citizen). They have better legal representation which draws a deeper level of respect from the prosecutors (and maybe the judge and jury).
Third is the matter of Expertise. Nobody wonders much about how drug deals work or what it takes to steal a car.3 It all looks straightforward and criminal justice officials know what to look for to make an arrest and prosecute a case.
What about embezzlement or tax fraud? This is much more complicated. It’s difficult for the layperson (including non-specialized law enforcement) to know what even to look for. Is this situation abnormal?4 Can we prove intent? Or perhaps nobody really knows how these things work. While we got limited prosecution around the 2007 mortgage backed securities schemes that crashed the economy, it’s reasonable to assume that people just didn’t get how credit default swaps and collateralized debt obligations were supposed to work.5
Finally, we return to the Doc Ock problem. Those people who commit street crimes are thugs and monsters. They are fundamentally different from you and me. On the other hand, what do we think about the tax cheat or the woman who stole from the little league association? Generally (if their name isn’t Hunter Biden) we assume that they are good citizens who made a mistake, will pay their dues, learn a lesson and return to polite society.
Stevenson’s analysis is astute. There are two very different criminal justice systems. As the title of one of my undergraduate criminology texts put it decades ago, “the rich get richer and the poor get prison.” I wish it weren’t so.
The criminal justice system is but a reflection of these larger issues of class and race throughout our society. I could write a similar analysis on education or housing or finance. Nevertheless, we can and should do more where we can.
You may think it’s grossly unfair for the state police to give you a ticket for going 72 mph in a 70 speed zone, but they have the authority to do that if they want.
A side note: in May of 2015, nine months after the Michael Brown shooting in Ferguson, a shootout between some 200 members of rival biker gangs occurred in Waco, TX. When those involved were arrested, they were allowed to sit quietly on the curb awaiting transport to jail. It was noted that this wouldn’t have been the case had the shooters been black. Some suggested that there was a level of respect offered to the bikers that doesn’t accompany most arrests.
One theory of criminal behavior is called Differential Association. It says that we hang out in groups and learn from them, putting into practice what we learn. I used to ask my Christian college students if they knew what it took to move a car if I stole one. They didn’t (or at least didn’t admit it) which made my illustration work.
This is one of the challenges the New York Attorney General will face in dealing with financial reporting practices of the Trump Organization. Is the alleged practice of low-balling value on tax returns and inflating value on loan documents something that is common practice in major commercial real estate?
I read The Big Short by Michael Lewis and watched the movie twice and I still don’t get it.
I really appreciate when you write in an order concerned more with depth and sequitur than with journalistic triage. As I'm sure you're well aware, journalists order their points based on the print newspaper design. Print newspapers have to arrange multiple headlines that take the reader to other pages--a physical obstacle that commands and homogenizes journalists' styles. This is why I like magazines like the Atlantic, where your style fits best. For instance, at about the halfway mark of this piece you write:
"When people like Jeffrey Clark receive a visit from the FBI or local law enforcement, they sometimes
complain that they are being treated like “a common criminal” instead of the upstanding citizens
they believe they are. [par.] When people hear that Breonna Taylor’s ex-boyfriend was wanted for drug offenses, she is often assumed to be complicit. That’s why the police went to her apartment in the middle of the night."
This encompasses your article. It's the spine. Its middle position fits it with strength rather than weakening it with "burial." In news work, especially TV news work, the Clark/Taylor contrast would probably be the first two paragraphs.
Where form meets substance is that your penetrating comparison would likely only activate an uninformed and polarizing argument among people who didn't want to read beyond their presuppositions about *how* the justice system is systemically biased. The way you work, the Clark/Taylor contrast) becomes a result of your argument's development, not a premise. Then a conclusion can become a new premise--hence the rest of the piece. This is how an argument goes vertical. It's what academia is supposed to accomplish for people (a gesture here to your writing about colleges as degree sellers rather than thought refineries).
Your comment about a gun's role in a bar fight fits here. Shallow consideration and baiting to offense seems to have only one vertical element: escalation.