Monthly Archives: June 2014

Supreme Court

Equal Under Law

While in Boston, the group I was travelling with met with a judge. Listening to him speak about the justice system was fascinating due to his defence of American values, his own views on the death penalty, and the details of the case he was presiding over at the time. A boy was on trial for a gang-related shooting, which we asked several questions about. During this discussion he clearly indicated that he thought the boy was guilty, which surprised me given my belief that judges are to remain unbiased and maintain the ‘innocent until proven guilty’ maxim. At the end of the session I rose to leave with everyone else, but before I got the chance a woman who had been sitting next to me—I hadn’t been sure why—turned to face me. Staring, she simply said, ‘That’s my son on trial’. I sat there in silence, not knowing what to say. What could I say? It isn’t often that I think about the family of the accused.

But once I did, I thought more about the United States as a whole. Before I travelled to the US, my understanding of the American criminal justice system generally came from films and television shows such as Law and Order or Twelve Angry Men. While I could appreciate the flaws these attempted to highlight, I had never really considered them deeply. The death penalty clearly stood out as a point of moral complexity, but beyond this nothing struck me as particularly unusual. All in all, I felt fairly comfortable with the similarities between the US and Australian justice systems. After travelling there last year, however, experiencing American streets and being shocked by several personal encounters, this is no longer the case.

Unlike most other states, America is based on an idea. The Declaration of Independence proclaims that ‘all men are created equal’, that they are endowed with unalienable rights of ‘Life, Liberty, and the pursuit of Happiness’. My experience of standing before the US Supreme Court on my last day in the country reinforced the idealism of the American experiment. Despite the building’s attempts to invoke the Greek and Roman traditions of democracy and order, with Corinthian columns and statues either side, it is the plainly engraved motto ‘equal justice under law’ that draws the most attention. For an individual to be deprived of liberty, through imprisonment, or their life, through the death penalty, is no small matter—these rights are fundamental to America’s cultural being.

The American system of criminal justice is profoundly different to our own, largely due to its harsh treatment of offenders and its adherence to the will of its citizens. These features are cultural developments stemming from two historical traditions: America’s religious past and the nation’s revolutionary experience. Together, these have caused the current American approach to law and order to prioritise retribution over rehabilitation. And a kind of populist justice sustains this harshness, as politicians pander to their electorates with ‘tough on crime’ platforms and voters often determine criminal laws directly. The result is a justice system antagonistic to America’s own ideals of equality and justice for all.

Moral absolutism, based on religion, was central to the early development of the US criminal justice system. Puritans and other settlers brought with them a certain moral and religious code, and, though US law has adopted many tendencies of English law, the Puritan effect on America’s legal culture is clear. A tour of Salem the day after our meeting with the judge reinforced this strong influence. The witch trials there, of which I had previous knowledge only through The Crucible, left burial sites that have since been lost due to several fires. Capital punishment further highlights the relationship, with Massachusetts’s original list of capital offences resembling the Biblical Ten Commandments through the inclusion of idolatry, witchcraft and adultery alongside murder.

Although Massachusetts abolished this type of punishment in 1984, religion remains pervasive in American justice. A 1996 survey of Oklahoma City residents found that conservative Protestants not only failed to differentiate between the morality of crimes such as trespassing and more violent crimes like murder, but also favoured retribution over prevention and rehabilitation. To these respondents, trespassing was as grave a sin as murder, and sinners must be punished, not treated. As historian Richard Hofstadter put it, the ‘paranoid style’ produced by such moral absolutism pervades American politics and transforms conflict into ‘absolute good and absolute evil’. No mercy is saved for those who break the law.

The American Dream—that concept combining US exceptionalism and individual potential—underscores this moral divide. For Bill Clinton, this dream is the chance to get ahead, which one earns by working hard and playing by the rules. Such views are in line with Puritanical ideas of self-discipline and industry in pursuit of atonement in the eyes of God. Sociologist Max Weber’s exploration of this extreme Protestant ethic, which compels individuals to follow their vocation with unrelenting zeal, highlights the centrality of personal success and responsibility to American culture. For instance, the same Oklahoma City survey showed that respondents did not recognise society’s role in criminalisation: whereas the American Dream allows industrious individuals to prosper regardless of their class or background, the inverse holds true for those who stray outside of the law. More simply, to be a criminal is a choice unrelated to any experience of societal hardship or abuse.

In this sense, playing by the rules unlocks the potential of the American Dream; breaking them is a sin to be met with righteous vengeance. Unfortunately, vengeance and justice always exist in a state of reciprocal reinforcement and antagonism. Not all goals of justice can be fulfilled equally, and it is up to society to choose which are essential. From available evidence, it seems that the American public has favoured the ‘cut off their hands’ approach over attempts at rehabilitation. In fact, criminals become less than human. The Thirteenth Amendment to the Constitution did not abolish slavery; instead, it wrote it into the document:

Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction [emphasis added].

Even those who have served their time remain on the outskirts of society. Former felons in many states are disenfranchised, forever stripped of their vote, while some also lose the right to receive pensions or student loans, or to gain access to public housing. By dehumanising and ostracising even those criminals who have served their sentence, the American justice system eschews any rehabilitative role, leaving room for reflection on what justice means and what these systems should achieve. Regardless, if lawbreakers are permanently stripped of democratic rights, they are also further stripped of reasons to consider themselves a part of society.

However, the preference for vengeance arising from the American religious and moral tradition cannot fully account for the existence of such policies when so much research and debate has significantly undermined their rational (and sometimes moral) basis. Abraham Lincoln’s famous claim that America’s government is ‘of the people, by the people, for the people’ also calls into question the nature of individual responsibility. If ‘the people’ are the government, then individuals cannot completely absolve themselves.

To explain the power of the public’s will in determining law, and therefore the noticeable emphasis on punishment in US justice, I turn to the second, equally important, American tradition. A set of values referred to as the American Creed is responsible for the noticeably populist trend in American justice. Though concepts of the Creed have changed over time, scholars almost universally agree upon its central ideas: those of individual liberty and equality, which have remained essential to the national psyche ever since the revolution. Yet these principles exist in constant tension—whereas liberty champions individual rights, democracy emphasises the wellbeing of the whole and sometimes elevates duties over rights. In the case of the US justice system, this tension has often been resolved by allowing democracy to dictate the limits of liberty; punishment thus becomes determined through a kind of mass politics.

This has clear implications, contributing to a system wherein politicians exploit the fear of voters by advocating harsh punishments and laws in hopes of drawing wider support. The politically popular ‘War on Drugs’ exemplifies the danger of capitalising on social taboos and the anxiety of voters. Over the 1980s and 1990s, the chances of a drug arrest leading to incarceration increased more than 400 per cent. However, the ‘war’ had unintentional costs. Local police departments came under pressure to show progress, and the simplest way to achieve this was to increase policing and arrest in disadvantaged neighbourhoods that were already disproportionately poor and African American.

The ultimate expression of harsh and retributive measures remains capital punishment, which removes any question of rehabilitation. Yet advocates of capital punishment face the problem of its uncertain deterrent effect beyond that offered by life imprisonment, a sentence both reversible and cheaper. In a 1994 paper, Mark Constanzo and Lawrence White had already given credence to life imprisonment as an alternative by demonstrating that, due to the lengthy trial and appeals processes as well as the loss of prison labour (as prisoners generate income through working while incarcerated), the death penalty is far more expensive. This has a real impact on wider society—a 2001 study by Katherine Baicker revealed that between 1982 and 1997 the extra cost of capital trials to county budgets was $1.6 billion, a burden managed by decreasing funding for highways and police while increasing taxes. Further, a 2009 survey by Michael Radelet and Traci Lacock found overwhelming consensus among criminologists that the death penalty does not add deterrent effects to those already achieved by long-term imprisonment.

Nevertheless, various cases show the power of fear over justice. During the 1992 presidential election, Bill Clinton, as governor of Arkansas, returned to his home state to oversee the execution of Ricky Ray Rector. Despite controversy over the brain damage Rector had sustained while committing his crime, rendering him unable to grasp the meaning of his impending death, the execution went ahead. This is just one example of a wider truth: it is politically unpalatable to be perceived as ‘soft on crime’. Democrats often find themselves the targets of these accusations, and their response has been to take increasingly harder lines. Clinton demonstrates this, and Barack Obama has continued the trend with remarks that he supports capital punishment for the most ‘egregious’ crimes (though I didn’t hear too much about this from either man during the Democratic National Convention).

In addition to the political pandering of elected officials, American justice is influenced directly by popular vote. Admittedly, I have been drawn into the political excitement of shows like The Good Wife or even The West Wing when the election of a judge or attorney has become a central plot point. But the idea of judges being elected along the same ideological lines as an Obama or a Romney is, to me, unsettling. In some states, Americans also vote for specific laws—a troubling prospect, given the limited expertise of most on the implications of criminal justice initiatives. The most startling example is California’s 1994 vote for a ‘three-strikes, you’re out’ bill that mandated life in prison for criminals convicted of a third serious felony. In one unusual case, a man’s third strike was a slice of pizza that he stole from a young boy. Just last year, the Supreme Court ruled that overcrowding in California prisons had violated their prisoners’ right to avoid cruel and unusual punishment. ‘Three strikes’ laws contributed to this massive overstretch of resources, and the verdict required the release of 37,000 prisoners should the state not create more facilities. It seems governments cannot afford the cost of increasingly harsh punishment. Neither can society.

The concept of justice is widely debated, and rightly so: by its nature justice relies on a combination of moral codes and ethics, law and rationality. None of these are easily agreed upon. Yet justice as an ideal implies aspirations beyond mere punishment, including more pragmatic goals of rehabilitation, deterrence and incapacitation. The American system appears to have devalued these aims, opting for harsher prescriptions than in any comparable liberal-democratic society. It is impossible to separate this system of criminal justice from America’s tumultuous history and the ideas and religion that have significantly impacted its cultural and political development. The Protestant work ethic, the belief in an absolutist morality and the desire to balance individual freedom with democratic values are, at first glance, quite admirable. But, while these celebrate the individual, they also denigrate failure and attribute criminality to an innate sinfulness. American society’s largely individual focus, attributing success to personal drive and failure to a lack thereof, leaves little room for societal factors. No second chances are granted to those who break the rules—the American Dream is not forgiving.

That this system continues to exist is also thanks to the highly populist nature of American politics and even its law. Whereas other States may have politicians peddling ‘tough on crime’ platforms, they rarely involve their citizens in votes establishing particular laws. Consequently, the self-proclaimed ‘land of the free’ has an incarceration rate (as a proportion of population) higher than Russia, Rwanda, and Iran, with a remarkable near-quarter of the world’s inmates imprisoned in the US in recent years.

This punitive reality does not need to persist. Indeed, in addressing these concerns, Americans should heed the words of Thomas Jefferson, that great figure in the nation’s cultural psyche: ‘Hardening them to disgrace, to corporal punishments, and servile humiliation cannot be the best process for producing erect character.’

This piece was originally published in Voiceworks #91.