With Liberty and Justice for Some (28 page)

Race-based enforcement of drug laws is not confined to cocaine alone. A report released in October 2010 by the Marijuana Arrest Research Project for the Drug Policy Alliance and the NAACP documented that “in the last 20 years, California made 850,000 arrests for possession of small amounts of marijuana, and half-a-million arrests in the last 10 years. The people arrested were disproportionately African-Americans and Latinos, overwhelmingly young people, especially young men.” Los Angeles in particular “arrested blacks for marijuana possession at seven times the rate of whites.”

If marijuana usage rates were substantially higher among African Americans and Latinos than whites, these statistics would be less shameful. But precisely the opposite is true in California and across the nation. As the
New York Times
columnist Charles Blow notes, “Young white people consistently report higher marijuana use than blacks or Hispanics.” Indeed, among whites nationwide, 44 percent have used marijuana, compared to 38 percent for blacks and 27 percent for Latinos. Nevertheless, as the Drug Policy Alliance report documented, “police in 25 of California’s major cities arrested blacks at four, five, six, seven, and even 12 times the rate of whites,” while “major cities in California arrested and prosecuted Latinos for marijuana possession at double to nearly triple the rate of whites.” This disturbing finding gives rise to an obvious question: what is the cause of such race-biased patterns of arrest? Based on the data in that report, the answer is clear: young police officers assigned to low-income black and Hispanic neighborhoods aggressively use stop-and-frisk tactics, which commonly result in discovery of marijuana. White citizens—especially those in neighborhoods that are middle-class and above—are generally not subjected to such searches and thus are by and large free to commit the same crimes with impunity.

The repercussions of marijuana-possession convictions extend far beyond penal sanctions; especially for America’s poor, they can be life destroying. In 1998, Bill Clinton signed into law a statute barring people with drug convictions from being granted financial aid—either temporarily or permanently, depending on how many drug-related offenses a person has. While such oppressive and cruel law-and-order measures are usually thought to be the province of the GOP, the reality is that these efforts are wholly bipartisan. Democrats under Obama, for instance, worked hard to sink a 2010 California referendum that would have legalized marijuana. They also acted to increase funding for such 1980s war-on-drugs initiatives as the Byrne Formula Grant program, which helps state and local forces make more drug arrests. Such programs, argues the Ohio State University law professor Michelle Alexander in her book
The New Jim Crow
, are being used to create a permanent under-caste—“a lower caste of individuals who are permanently barred by law and custom from mainstream society.” In the
New York Times
, Charles Blow denounced such efforts as “outrageous and immoral,” concluding that “the Democrats’ complicity is unconscionable, particularly for a party that likes to promote its social justice bona fides.”

(One Democrat who, to his credit, has been stalwart in vocally protesting America’s race-biased justice system, often at great political risk, is the former Reagan official and current Virginia senator Jim Webb. In 2009, when proposing to form a commission to recommend how the nation should overhaul its criminal justice system, Webb took to the Senate floor and drew attention to what he called “the elephant in the room”: the transparent racism of America’s prison state and specifically the drug war. He pointed out that although African Americans have about the same rates of drug use as the rest of the population, “they end up being 37% of those arrested on drug charges, 59% of those convicted, and 74% of those sentenced to prison.” Overall, Webb said, “America’s criminal justice system has deteriorated to the point that it is a national disgrace.” Unfortunately, his views are rarely heard in most mainstream political precincts, and in 2010 the Democratic-led Congress failed to act on his proposal.)

Unequal treatment in the American justice system is dictated by class as well as race. Anyone who has ever interacted with the courts in the United States—whether as a lawyer, an accused criminal, or a plaintiff, whether in criminal proceedings or a civil suit—knows that the outcomes are determined at least as much by the wealth of the parties as by the merits of their positions. In criminal court, wealthy defendants can amass large teams of lawyers who will devote themselves for months or even years to winning an acquittal. The indigent, on the other hand, are assigned public defenders who are almost always so overworked and stretched so thin that a full-on defense is impossible, resulting—at best—in substantial pressure placed on even the most innocent to plead guilty and accept long prison terms.

In civil suits, meanwhile, poor parties are often unable to obtain counsel at all, forced to navigate the complexities of the judicial system pro se, often against wealthy corporations with multiple lawyers. Proceeding without counsel is usually a ticket to being marginalized, patronized, and defeated, regardless of the merits of one’s claims. Indeed, even most middle-class Americans cannot afford to hire high-quality lawyers for protracted litigation, enabling the legal interests of the wealthiest and most powerful factions in America to prevail more or less by default.

The wealthy, of course, have long enjoyed advantages in the justice system. But just as America’s wealth inequality in general has recently seen dramatic increases, so too the dispensation of justice is now more bifurcated than ever before.

In 2010, the World Justice Project published a “Rule of Law Index,” which compiled “indicators on the rule of law from the perspective of the ordinary person” in nations around the world. In terms of access to legal counsel for civil proceedings, the United States ranked twentieth out of the thirty-five nations surveyed, below countries such as Mexico, Croatia, and the Dominican Republic. The WJP study showed that America’s disparate treatment of rich and poor is highly atypical.

Those depressing findings are consistent with those documented by the Legal Services Corporation, the inadequately funded entity created by Congress to provide legal representation to low-income civil defendants. LSC is required by law to issue reports on the ability of America’s poor to access the justice system. Its 2009 report documented the bleak reality of America’s unequal justice.

The severity of this problem was underlined by an October 2010
New York Times
editorial aptly titled “Need a Lawyer? Good Luck.” Across the nation, the article noted, programs designed to provide legal services to the poor “are so cash-strapped that they are turning away numbers of people.” Even people with the most pressing legal needs—say, those trying to stave off fraudulent home foreclosures or obtain protection from domestic violence—“often navigate the judicial system on their own or give up.” The political class’s strident demands for budget cuts and austerity measures are almost always targeted at America’s minorities and the poor; government-provided legal services are thus certain to decline further even as the need for them continues to increase.

America’s indigent class is so severely bereft of access to anything resembling justice that even the U.S. government has been forced to acknowledge the problem, though it has merely pretended to address the issue. In February 2010, President Obama announced that he was appointing his former law professor, Laurence Tribe of Harvard, as a DOJ adviser charged with “increasing legal access for the poor.” But in April, just two months after Tribe’s appointment, the
New York Times
reported that his position had been downgraded. Tribe, stated the
Times
, “has a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington.” Moreover, he was “largely invisible,” as the Justice Department was “not allowing him to give interviews, apparently in part because of nervousness in the administration that his unabashedly liberal views might draw criticism.”

Small wonder, then, that when he gave a speech that June to the National Institute of Justice, Tribe lamented how little was being done to facilitate basic justice for the poor. He delivered shocking statistics: public defender caseloads were “often 5 to 6 times that of the ceiling” recommended by attorney monitoring groups, and “some defenders in New Orleans averaged 19,000 cases a year, allowing an average of just seven minutes per case—a mere seven minutes to talk to a lawyer about a life-altering decision.” Tribe explained that “the situation is no less dire in civil cases, including those that involve life-altering matters like deportation, loss of child custody, and eviction,” and noted that “no one doubts that those who cannot afford counsel in proceedings touching such momentous matters are at a potentially ruinous disadvantage.”

All of that led Tribe to declare: “The truth is that, as a nation, we face nothing short of a justice crisis. It is a crisis both acute and chronic, affecting not just the poor but the middle class. The situation we face is unconscionable.” There is no disputing that
unconscionable
is indeed the right word for the refusal of one of the world’s wealthiest nations to provide even basic legal representation to the majority of its citizens.

The point about the middle class not being exempt from the justice system’s crisis was reinforced just a few months later, when the mortgage fraud scandal erupted and numerous stories emerged of homeowners who were the victims of illegal foreclosure actions. Many of them were simply incapable of battling the armies of lawyers employed by banks and mortgage companies, and their homes were lost because they lacked the means to demonstrate the fraud and defects at the heart of the banks’ case.

In the November 2010 issue of
Rolling Stone
, Matt Taibbi reported on the special courts established around the country for the express purpose of streamlining and accelerating foreclosure actions. Presided over by retired judges who were unfamiliar with the complexities involved in the mortgage fraud, these courts were not set up “to decide right and wrong, but to clear cases and blast human beings out of their homes with ultimate velocity.” The whole process was designed to transfer the property of ordinary citizens to the nation’s largest banks regardless of entitlement. As Taibbi wrote:

The following month, the
Washington Post
reported that similar courts in Virginia were “making it easier for lenders to defend themselves when accused of giving homeowners too little warning of impending foreclosures.” Indeed, “the process moves so quickly in Virginia…that homeowners can receive less than two weeks’ notice that their house is about to be sold on the courthouse steps.” The design of the courts guaranteed that even banks with no legal foreclosure entitlement had an almost insurmountable advantage. In the very short time they were accorded, homeowners seeking to stop foreclosure had to “gather evidence, file a lawsuit and potentially post a bond with the court that could total thousands of dollars.” These arduous requirements, combined with the near-impossible deadlines, meant that many borrowers simply ran out of time when trying to fight invalid foreclosure proceedings.

It is hard to imagine a purer expression of two-tiered justice than special courts created for the sole purpose of helping large banks take people’s homes more expeditiously. Such courts show that the legal system not only fails to protect Americans from societal injustice and inequality, but also serves as a tool of injustice and inequality in its own right.

Prisons for Profit

When it comes to the way money shapes American justice, nothing competes with the impact of the privatized prison lobby. Imprisoning criminals, once exclusively a government responsibility, has—like most government functions—been increasingly privatized. All over the United States, more and more prisons are managed not by government agencies but by for-profit private corporations such as Geo Group and Corrections Corporation of America. (In 2008, private prisons housed 7.5 percent of all inmates nationwide.) Those same companies accrue substantial revenues by providing contracting services to government-run prisons. They quite naturally view prisoners as their basic stock in trade and earn a profit for each one they incarcerate.