The Myth Of A Fair Criminal Justice System

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The Myth of a Fair Criminal JusticeSystemMatthew Robinson and Marian Williams*Volume 6 – No. 1 – Spring 2009* Matthew Robinson is Professor of Government & Justice Studies at Appalachian StateUniversity. Marian Williams is Assistant Professor of Government and Justice Studies atAppalachian State University.

AbstractThis paper examines whether the belief that the US criminal justice system is fair is amyth. After an introduction of the criminal justice system and its goals, we turn to possiblesources of unfairness in criminal justice, including the criminal law, definitions of crime,policing, courts, and corrections. The authors explore the possibility that the criminal justicesystem is unfair both in what it does and in what it does not do. After a discussion of the role ofmythology in criminal justice, the paper concludes with a summary and suggestions for makingAmerican criminal justice activity fairer.

About the AuthorsMatthew Robinson is Professor of Government & Justice Studies at Appalachian StateUniversity. His specializations include criminological theory, the war on drugs, capitalpunishment, and contradictions between criminal justice and social justice. Robinson is theauthor of dozens of articles and book chapters, as well as ten books. His most recent books areGreed is Good: Maximization and Elite Deviance in America (Lanham, MD: Rowman &Littlefield 2008); Death Nation: The Experts Explain American Capital Punishment (PrenticeHall 2008); and Lies, Damned Lies, and Drug War Statistics: A Critical Analysis of ClaimsMade by the Office of National Drug Control Policy (State University of New York Press 2007).Robinson also served as Board Member and President of the Southern Criminal JusticeAssociation (SCJA). E-mail: robinsnmb@appstate.edu.Marian Williams is Assistant Professor of Government and Justice Studies at Appalachian StateUniversity. Her research interests include the criminal courts, criminal procedure, sentencing,and capital punishment. Recent publications can be found in Criminology, Justice Quarterly,Homicide Studies, and the Journal of Criminal Justice.

The Myth of a Fair Criminal Justice SystemIntroductionThe word fair is defined by Merriam-Webster’s Dictionary (2009) as “marked byimpartiality and honesty . free from self-interest, prejudice, or favoritism.” Related wordsinclude just, equitable, impartial, unbiased, dispassionate, and objective, all of which mean “freefrom favor toward either or any side.”One additional term that is important for understanding fairness is “desert.” Desert refersto getting what you deserve, as in reward or punishment. When considered in the context ofvictimology (Karmen 2009) and social justice (Miller 2003), it is unfair when those culpable forharmful behaviors are not held accountable for their actions.Many believe that the criminal justice system is fair. For example, two-thirds ofAmericans (66%) in 2003 stated they thought the criminal justice system was fair (Sourcebookof Criminal Justice Statistics 2009c). Additionally, two-thirds of Americans in 2000 and 2002(66% and 67%, respectively) asserted that police in their community treated people fairly(Sourcebook of Criminal Justice Statistics 2009b). Further, between 51 percent and 61 percent ofAmericans between the years of 2000 and 2008 have expressed their belief that capitalpunishment is applied fairly (Sourcebook of Criminal Justice Statistics 2009a)Others hold that the belief that criminal justice is fair is a myth (Bohm and Walker 2007).Myths are stories that serve to “unfold part of the world view of a people or explain a practice,belief, or natural phenomenon.” A myth is “a popular belief or tradition that has grown uparound something one embodying the ideals and institutions of a society or segment ofsociety.” It is “an unfounded or false notion” (Merriam-Webster’s Dictionary 2009). In this1

article, we examine whether the belief that the US criminal justice system is fair is a myth, andwhether the commonly held belief referring to the institutions of criminal justice is unfoundedand false. To do so, we analyze the processes of law-making/defining acts as criminal, policing,courts, and corrections in order to assess how criminal justice practice is consistent andinconsistent with fairness. We begin with a discussion of the “ criminal justice system.”The Criminal Justice SystemThe criminal justice system is the term used to describe the interdependent components ofthe police, courts, and correctional facilities within the federal government, as well as theagencies of criminal justice of each of the fifty states. The criminal justice system is a whole,made up of these three interdependent components. Some would add law-making as a fourthcomponent of criminal justice, for all legitimate criminal justice system activity emanates fromthe law (Samaha 2007). This is important to understand because if criminal justice process isunfair, some of it would stem from the criminal law (Robinson 2001). The substantive aspect ofthe law reflects the “ what” of the law, in that laws are created to define certain behaviors ascrimes and to provide punishments for violations of those laws (Dressler 2006). One example ofunfairness in the substantive criminal law is the disparate punishments for crack vs. powdercocaine found in the federal sentencing guidelines (Blumstein 2003). In the mid-1980s, theemergence of crack led to an increase in violence surrounding the crack market, especiallyamong juveniles. As a result, Congress responded with sanctions that provided that 500 gramsof powder cocaine and only 5 grams of crack cocaine will net a mandatory sentence of five yearsin federal prison (Sentencing Project 2008b). Since African-Americans are disproportionatelymore likely to be involved in the crack cocaine market, the law invariably discriminates against2

these offenders, who made up more than 80 percent of defendants in federal courts charged withcrack cocaine offenses (U.S. Sentencing Commission 2007). This is evidence of a seriousinequity in criminal justice practice.One reason this is unfair is because the disparities are not based on any real differencebetween crack and powder cocaine. As noted by the US Supreme Court in Kimbrough v UnitedStates (2007): “ Crack and powder cocaine have the same physiological and psychotropiceffects.” Yet, because of the law that created these disparities (the Anti-Drug Abuse Act of1986), crack and powder cocaine cases are “ handled very differently for sentencing purposes.”As noted by the Court: “ The relevant statutes and [Federal Sentencing] Guidelines employ a 100to-1 ratio that yields sentences for crack offenses three to six times longer than those for offensesinvolving equal amounts of powder. Thus, a major supplier of powder may receive a shortersentence than a low-level dealer who buys powder and converts it to crack” (pp. 5-6).Referring to the US Sentencing Commission, who several times unsuccessfully suggestedto Congress that the disparities between crack and powder cocaine be eliminated, the Courtcontinued:The Commission found the disparity inconsistent with the [Anti-Drug Abuse Act of1986] goal of punishing major drug traffickers more severely than low-level dealers, andfurthermore observed that the differential fosters a lack of confidence in the criminaljustice system because of a perception that it promotes an unwarranted divergence basedon race (p. 9).The disparity based on race has been recognized by the American Civil Liberties Union(ACLU), American Bar Association (ABA), US Sentencing Commission, and ultimately the USSupreme Court. Although the disparities in sentencing between crack and powder cocaine havenow been held to be unreasonable by the US Supreme Court, the fact remains that criminal3

justice activities have created disparities based in part on the overwhelming focus on crackcocaine. For example, a study of policing in Seattle, Washington found that two-thirds ofarrestees were black even though the only drug for which blacks made up a majority of dealers iscrack cocaine (Beckett, Nyrop, and Pfingst 2006). The majority of those involved in dealingmethamphetamine, ecstasy, powder cocaine, and heroin were white. The authors explained racialdisparity in arrests using three organizational factors: 1) an explicit focus by police on crackoffenders; 2) an explicit focus by police on outdoor drug activity; and 3) racially diverse outdoordrug markets received more attention by police than predominantly white outdoor drug markets.Ideal Goals of the Criminal Justice SystemOne goal of the criminal justice system is to reduce crime. Reducing crime can beachieved through reactive means (such as responding to a call for service, making an arrest,obtaining a criminal conviction, and carrying out the punishment imposed by the court), orthrough proactive means (such as eliminating the conditions that produce criminality) (Fuller2005). The former type of crime reduction is referred to as crime control, and accurately depictsthe majority of criminal justice activity in the United States (Worrall 2008). The latter type ofcrime reduction is referred to as crime prevention, and is far less emphasized in America (Lab2007).Another goal of the criminal justice system is to do justice. Doing justice has two relatedmeanings, both of which are reflected in Justitia, the blindfolded lady justice who holds a swordand scales and adorns many courthouses and legal buildings across the country (Curtis andResnick 1987). The sword is thought to represent the first meaning of justice, which is aimed atholding the guilty responsible for the harms they inflict. If a criminal is not punished for his or4

her wrongdoings, we would say that justice has not been achieved. This type of justice isreferred to as corrective justice (as in corrections or punishment), or justice as an outcome(Robinson 2009). The scales and blindfold are thought to represent fairness, the second meaningof justice. This conception of justice assumes that all persons will be treated equally in the eyesof the law – that justice will be blind. Justice thus would not be present when any group issomehow left out or singled out for differential treatment by the law. This type of justice isreferred to as procedural justice, or justice as a process (Robinson 2009).Proponents of corrective justice (justice as an outcome) seek to make American criminaljustice more punitive in order to achieve vengeance for crime victims and retribution for society.Research suggests that efforts such as increased use of incarceration, longer average sentences,mandatory sentences, and more executions over the past three decades have eroded theprocedures that make American criminal justice processes fair (Simon 2007).Ironically, one of the reasons for the more punitive changes in the criminal justice systemwas to reduce judicial discretion. It was thought that judges, when allowed to practice unfettereddiscretion in indeterminate sentencing systems, could easily discriminate against certainoffenders by imposing different sentences on similarly-situated offenders.To create more“ fairness” in the system, judicial discretion has largely been constrained by the use of mandatorysentences and habitual offender laws, in hopes of creating more equity in the system. However,these sentences are largely only applied to certain types of offenders, such as drug offenders, sothe goal of producing equity by reducing discretion has led to a zero-sum gain as one brand of“ fairness” has been replaced with another. For example, a study of Oregon’ s implementation ofMeasure 11 in 1994, which required mandatory minimums for sixteen violent and sex-related5

offenses, yielded interesting results. On the one hand, it did meet its goal of increasing prisonsentences of offenders eligible for mandatory sentences, which effectively reduced judicialdiscretion.On the other hand, many other offenders who should have been sentenced tomandatory minimums under Measure 11 were not, as prosecutors were able to use theirdiscretion to reduce charges or avoid charging defendants with Measure 11 offenses. In effect,judicial discretion was limited by the law, but prosecutorial discretion increased, allowing manyoffenders to escape the punishment that the law initially set out to impose (Merritt, Fain, andTurner 2006; see also Tonry 1996; Walker 2005; Walker, Spohn, and DeLone 2007).Due process versus crime controlWhichever conception of justice should be prioritized, America’ s constitution requiresdue process of law, which can be thought of providing accused criminals with the process theyare due (Orth 2007). These include freedom from unreasonable searches and seizures (FourthAmendment), freedom from arrest or search without probable cause (Fourth Amendment),freedom from self-incrimination (Fifth Amendment), freedom from double jeopardy (FifthAmendment), freedom from cruel and unusual punishment (Eighth Amendment), freedom fromexcessive bail or fines (Eighth Amendment), right to speedy, public, and fair trial by jury (SixthAmendment), right to an impartial jury (Sixth Amendment), right to counsel (SixthAmendment), and most generally, freedom from being deprived of life, liberty, or propertywithout due process of law (Fifth Amendment and Fourteenth Amendment) (Fuller 2005).Although these rights are at times violated by various criminal justice actors, courts haveruled these rights are not absolute and that certain violations are permissible. Appellate courts,particularly the U.S. Supreme Court, have routinely created exceptions to these rights (e.g., the6

“ good faith” exception to the exclusionary rule (see U.S. v. Leon 1984), and right to counsel onlyfor those who are incarcerated (see Scott v. Illinois 1979). Further, numerous protections havebeen eroded as a result of the drug war (Gray 2001). As a result, procedural justice (justice as aprocess) is not an absolute and can be subverted by crime control concerns. In at least some ofthese cases, many would argue that criminal justice practice is unfair.America is now entrenched in a crime control model (Packer 1968), thus some dueprocess rights of Americans have been eroded (Klein 2006; Shelden et al. 2008). In fact, somescholars now recognize a degree of toughness in criminal sentencing beyond mere retributionand more consistent with vengeance (Elikkan 1996; Ellsworth and Grosse 1994; Ho, ForsterLee,ForsterLee, and Crofts 2002).That is, criminal punishment is at times hateful anddisproportionate to the harms caused by criminal acts, rather than objective, dispassionate, orrational (Welsh and Harris 2004). For example, according to Ho et al. (2002), jury research hasindicated that jurors admit to seeking vengeance on capital murderers and hope to make theoffenders “ pay” for what they have done. Research from the Capital Jury Project supports thisfinding as well (e.g., see Blume, Eisenberg, and Garvey 2003). Additionally, Oregon’ smandatory sentencing law, Measure 11, was not passed by the legislature – it did not get enoughvotes because many lawmakers had concerns about its effectiveness – but was voted into law bycitizens who claimed that they had enough of crime (Merritt et al. 2006). “ Justice” in some areasof criminal justice is far from dispassionate or rational.Unfairness in Criminal Justice?The next section of the paper examines potential examples of unfairness in criminal justiceactivity. We examine the criminal law and label of crime, policing, courts, and corrections.7

The LawAn examination of law makers and the law-making process in the United States revealssome significant facts for understanding criminal justice processes. Law makers at both thefederal and state level of government are: disproportionately white (more than 85 percent);disproportionately male (more than 80 percent);more than 20 years older than the average American; andsignificantly more wealthy than the average American household (federal legislators earn 120,000 more per year than the average family) and tend to be millionaires (Center forResponsive Politics 2008; Center for Voting and Democracy 2008; Common Cause2008; Congress Link 2008; National Institute on Money in State Politics 2008).Additionally, even though nearly two-thirds of eligible voters are registered to vote: most people do not regularly vote (typically, the highest voter turnout is in close, nationalelections, and is still only about 50 percent);voters are disproportionately white (about 60 percent of whites vote, versus just over halfof blacks and only about one-quarter of Hispanics);voters are disproportionately older (more than two-thirds of people ages 65 and oldervote, versus only about one-third of people ages 18-24); andvoters are disproportionately wealthier (more than two-thirds of people earning more than 75,000 per year vote, versus less than one-third of people earning less than 5,000 peryear) (U.S. Census 2008).Finally, in terms of the influence of money on the law: there is a lot of money involved in the political system (in the last political cycle, federalpoliticians raised more than 1 billion);money determines the outcomes of virtually every election (more than 90 percent ofelections are won by the candidate who spent the most money);far less than 1 percent of Americans donate money to politicians or political parties; andmost of the money involved in politics comes from wealthy individuals and PoliticalAction Committees (PACs) (Center for Responsive Politics 2008; Center for Voting andDemocracy 2008; Common Cause 2008; Congress Link 2008; National Institute onMoney in State Politics 2008).8

Although some research shows that neighborhood poverty is related to an increasedmotivation to participate in political activity (see Swaroop and Morenoff 2006), many studiesindicate that motivation and participation is greatly lacking in poor areas. These studies showthat social isolation, a lack of connection to “ mainstream” America, a lack of role models, a lackof socialization to participate, and a lack of exposure to civic groups greatly decreases thelikelihood that individuals in these areas will participate in the political process (see AlexAssenoh and Assenoh 2001; Cohen and Dawson 1993; Rankin and Quane 2000; Wilson 1987).When taken together, these facts show that law-makers are not demographically representative ofAmericans, that most people do not regularly vote for the law-makers who are supposed torepresent them, that those who do vote for law-makers are not demographically representative ofAmericans, and that the election process itself is driven mostly by monied interests while notsignificantly being affected by most Americans. Further, these facts raise the possibility that thelaw, including the criminal law, is not created by people who serve the interests of the generalpublic (Lynch and Michalowski 2006; Lynch, Michalowski, and Groves 2000). Some theoristsargue that those who are in a position of power work proactively to represent their interests andneglect the interests of their constituents. For example, Tonry (1996) argues that the criminaljustice system zealously enforces violent and property crimes (which blacks and lower-classindividuals disproportionately commit), while virtually ignoring white-collar and corporatecrimes (which are disproportionately committed by middle- to upper-class whites).If the law is biased in favor of and/or against certain interests, we should expect the labelof crime to be reserved for only some acts – those committed by people unlike law-makers andthe moral and financial interests they serve. It is logical to assume that law-makers would not9

criminalize the kinds of acts that they (and their financial backers) tend to commit. And if thelabel of crime is not applied to behaviors based on the degree of harm they cause but rather isbased on their perceptions t

Made by the Office of National Drug Control Policy (State University of New York Press 2007). Robinson also served as Board Member and President of the Southern Criminal Justice Association (SCJA). E-mail: robinsnmb@appstate.edu. Marian Williams is Assistant Professor of Government and Justice Studies at Appalachian State University.

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