Andrey Burin

POLT 4860

Dr. Philips

Theories of Justice and the U.S. Criminal System: Class and Political Outcomes
 Burin 1

Andrey Burin

POLT 4860

Dr. Philips

Theories of Justice and the U.S. Criminal System: Class and Political Outcomes

Introduction

As of 2017, the U.S. criminal justice system holds the infamous distinction of having the

second-highest prison population rate in the world1 and the highest among the 100 largest

countries in the world. Additionally, the United States has ranked among the top five nations in

terms of individuals executed during nine of the last ten years2. This seems to be in sharp

contrast to the nations economic prosperity. According to the IMFs World Economic Outlook,

the United States remains the worlds top economy, holding nearly 25% of the worlds gross

GDP3. Further adding to the enigmatic nature of the American prison system, the crusade against

drugs pioneered by President Ronald Reagan and continued (or at least enabled) by his

successors has created a situation in which over sixty percent of incarcerated U.S. individuals are

serving sentences for nonviolent offenses. Compared to other countries worldwide, this is an

unusually high number4.

This practice of imprisoning individuals for non-serious offenses and pushing

government-backed incarceration, unemployment, and the promotion of recidivism and illiteracy

1
"Highest to Lowest - Prison Population Rate," Highest to Lowest - Prison Population Rate | World Prison Brief, ,
accessed May 3, 2017,
http://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All.
2
"The Death Penalty: An International Perspective," The Death Penalty: An International Perspective | Death
Penalty Information Center, accessed May 3, 2017,
https://deathpenaltyinfo.org/death-penalty-international-perspective.
3
"World Economic Outlook Database April 2016," International Monetary Fund, , accessed May 3, 2017,
https://www.imf.org/external/pubs/ft/weo/2016/01/weodata/index.aspx.
4
John Schmitt, Kris Warner, and Sarika Gupta, "The High Budgetary Cost of Incarceration," IDEAS Working Paper
Series from RePEc, 2010, IDEAS Working Paper Series from RePEc, 2010.
 Burin 2

is enigmatic on the surface. These facts also do not bode well for Americas historical

representation as the Land of the Free or the Tocquevillian conception of the United States as a

land of independent and hyper-local social structures formed around common ideals of liberty

and freedom and uniformly opposed to all tyranny and injustice. Instead, the current criminal

justice system seems to suggest either that a covertly growing sector of the government has

strayed from these principles and the citizenry has yet to realize it, or that this is a situation in

which one group of society is disproportionately benefitting from the hardships of another, and

subsequently supporting that unjust systems perpetuation.

Reflecting upon the current state of the criminal justice system and its attendant

disparities, the situation is clearly at odds with a vision of America as a haven of personal

responsibility and true democracy. It appears blatantly hypocritical that the U.S. locks up vastly

greater numbers of its own citizens than those states that it accuses of autocracy and

authoritarianism regimes. The incontrovertible trove of existing evidence pointing to racial,

class-based, ethnic, and gender disparities in the numbers of individuals affected by the criminal

justice system suggests that mass incarceration is likely a phenomenon perpetrated by those set

to gain from it, rather than an incidental and unnoticed disease plaguing the nation. This situation

is problematic to the principles of liberty and equality promulgated by the Declaration of

Independence and the Constitution. Additionally, the recent deepening of this crisis of

over-incarceration from 1960 until the present reflects a system gaining inertia and makes the

need for reflection on the causes and symptoms of the problem all the more urgent.

Sociologists and experts on criminal justice have formed myriad different theories on

which societal cleavages are most pressing with regards to these disparities in criminal justice
 Burin 3

outcomes. I will outline several examples of these arguments touching on race, gender, and

ethnicity before focusing in on the argument that the disparities hinge on class. Following this

discussion, I will outline the justice-related theories of John Rawls and William Sumner. Finally,

I will attempt to hone in on the ramifications for class of their theories and examine how their

theories fit with the American reality and potential ways for the U.S. to move toward justice in

this sphere.

The proposition that race lies behind Americas vast corrections-related inequities is

backed by statistics and convincing argument. In The New Jim Crow, Michelle Alexander cites

the jarring fact that more African-Americans are under correctional control now than were

enslaved in 18505. She then presents a methodical breakdown of the War on Drugs-based

strategy that plagues those caught in the tentacles of the system before their first interaction with

the system, assails them while in prison, and looms over their heads psychologically and legally

after their release. The laws known as Jim Crow are chosen as a historical parallel to mass

incarceration today, most importantly because its primary function, as Alexander describes, is to

define the meaning and significance of race in the U.S6. Other scholars approach the data

with an eye towards the intersection of race and class, arguing that the poor black family has

truly been relegated to second-class status7, but experiences the system differently than the

middle- and upper-class black family.

5
Michelle Alexander, The New Jim Crow : Mass Incarceration in the Age of Colorblindness, New York : [Jackson,
Tenn.]: New Press ; Distributed by Perseus Distribution, 2010. 180.
6
Ibid., 197.
7
Bruce Western, and Christopher Wildeman, "Law, Reparations and Racial Disparities: Criminal Justice and Racial
Disparities: Punishment, Inequality, and the Future of Mass Incarceration," University of Kansas Law Review 57
(2009): 852.
 Burin 4

Gender is a meaningful variable in terms of sentencing, verdicts, the administration of the

death penalty, and in-prison treatment, but much of the academic discussion on this dimension of

the debate focuses on the propensity for women to be victimized by crime and the nexus of

masculinity and violence. Jacobsen takes a victim-centered argumentative approach in her work.

She asserts that the typical approach to crime, emphasizing the role of the individual and

ignoring crime committed by groups or systematic issues, is a central reason for disparities in

gender and the widespread victimization of women. The mishandling of sexual assault cases8 is

one of many examples of this system in play.

Ethnicity is often paired with race in discussions of the criminal justice system. However,

especially in times of hardline political stances on immigration and ethnic profiling in the name

keeping national security, it is important to realize its unique role in the system, especially in

certain communities of high immigrant (and especially Latino) populations.

The idea that our prison and court systems prey upon the poorest in terms of class is not a

new one. In addition to an exploitative system of bail and bonds and an overburdened,

overpriced court system, the vast inequalities in terms of the right to legal counsel are a key

symptom of criminal justices class-based problems9. The importance of fair legal counsel is

well-described by Cole when he notes that, without it, a criminal defendant has virtually no

chance to vindicate his constitutional rights and obtain a fair trial10. Jury composition and

sentencing are also steps of the criminal justice process where class, as well as race, lead to bias.

8
Shannon Jacobsen, "The Differential Representation of Women and Men in Crime, Victimization, and the Criminal
Justice System," Sex Roles 66, no. 3 (2012): 293.
9
Reviewed Edward McGlynn Gaffney, Jr, "Removing the Blindfold from Lady Justice: No Equal Justice: Race and
Class in the American Criminal Justice System, By David Cole," Georgetown Law Journal 88 (1999): 116.
10
Ibid., 123.
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Looking at several different authors works on justice in America, I will argue that the

modern system of mass incarceration appears to violate Rawls theory of justice, while adhering

to parts of Sumners Darwinistic theory, and that practical steps should be taken to move the

criminal justice system closer to Rawls theoretical model of justice, specifically a

equity-minded reform of the public defender system.

Rawls

Rawls presents a theory of justice that builds upon the social contract-focused

foundations of Locke, Rousseau, and Kant. He refers to it as an approach that conceives of

justice as fairness11. The premise behind his veil of ignorance argument regarding justice

was that the luck of the draw one receives at birth or the social circumstances that one just

happens to be born in should not lead to advantage or disadvantage with respect to the principles

of justice12. He does concede that some inequalities are allowable in this situation. However, he

adds the caveat that individuals must be better off with the inequality as opposed to without it.

This is referred to as the difference principle. For example, some might argue that more

stringent surveillance on individuals doing business in hotbeds of terrorism leads to all being

better off in the long run, though their treatment is not equal. Or, that all individuals should

sacrifice some sliver of liberty and subject their children to the temporary displeasure of

vaccination in order to ensure herd immunity and create tangible public good by eradicating

disease. Importantly, rather than a strictly utilitarian approach to justice that might argue for

unfairness to some in exchange for greater aggregate benefits, Rawls theory of justice demands

11
Isaac Kramnick & Theodore Lowi eds. American Political Thought: A Norton Anthology. W.W. Norton &
Company, 2009, 1370.
12
Ibid., 1371.
 Burin 6

that everyone benefit from economic and social inequalities in order for them to be permissible
13
.

Rawls says that principles of justice chosen should be those same ones that free and

rational persons would choose in an initial position of equality, thus calling for the immediate

removal of class from consideration by Rawls and stipulating that class should not have any

effect on the delivery of justice.

In terms of the ramifications of Rawls theory for class, it appears that the difference

principle would rule that our class-based disparities in terms of sentencing, right to counsel,

arrests, and the setting of bail are undeniably unjust. Rawls says that the naturally advantaged

are not to gain merely because they are more gifted, but only to cover the costs of training and

education and for using their endowments in ways that help the less fortunate as well14. With

regards to disparities in terms of sentencing, right to counsel, and execution rates, it is clear that

these contingencies in no way work for the good of the least fortunate. Instead, they lead to a

cycle of recidivism and de facto segregation as those who are able to move up a class

immediately move to different neighborhoods with better school systems and lower crime rates15.

It is also important to note that because Rawls does not use a utilitarian approach focused on the

aggregate good, the idea of imprisoning poor drug users at high rates, surveilling lower-class

neighborhoods and arresting members low-income communities at higher rates in order to keep

crime out of the backyards of the middle-class and hurting the majority would not be an

acceptable tradeoff, as the least fortunate certainly fail to benefit. This approach of a veil of

13
Ibid., 1376.
14
Ibid., 1377.
15
Andrew Spivak, Loretta Bass, and John Craig, "Reconsidering Race, Class, and Residential Segregation in
American Cities," Urban Geography 32, no. 4 (2011): 535.
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justice does not appear to be currently applied in America, as there are clear disparities in the

criminal justice systems daily functioning, with the lower-class bearing the burden of mass

incarceration.

Sumner

In What Social Classes Owe to Each Other, Sumner argues generally that the burden of

solving the problems of the less fortunate (or less successful) classes is unduly put on those who

are more successful. His argument16 is one that presumes true equality of opportunity, in that he

argues the battles of life are the root cause of inequalities and disparities, rather than any

prejudice or systemic oppression. Taking this approach to the ills of society in place of statistical

analysis and attempts at finding and alleviating institutional inequities means that class becomes

treated solely as a choice, and therefore any problems associated with that condition would also

be treated as choices.

In some respects, Sumners vision does appear to be applied in the U.S. For one, he

attempts to bulldoze the grouping together of disadvantaged individuals based on common

features such as the poor, the weak, and the laborers17. This attempt at mitigating the true

meaning and disparity of political representation and resource distribution among different

classes might be analogized to the Republicans Southern Strategy that aimed at fostering

division among cultural and heritage-based lines such as religion and race rather than on class.

Additionally, public opinion polls regarding how the populace views crime can be used to

approximate societal attitudes toward class and the criminal justice system18. For example, public

16
Kramnick, American Political Thought, 705.
17
Ibid.
18
Hans Toch, and Kathleen Maguire. "Public Opinion Regarding Crime, Criminal Justice, and Related Topics."
Journal of Research in Crime and Delinquency 51, no. 4 (2014): 430.
 Burin 8

opinion on the death penalty tends toward a harsher view accepting the accuseds responsibility,

as 63% of citizens support it19. Similar topics supporting a punitive view of criminal justice

issues such as mandatory sentencing laws, marijuana legalization, and police brutality also

tended toward citizen support, potentially signaling that they believe in the existence of equality

of conditions.

Conclusion

It appears that, as it currently functions, the U.S. criminal justice system perpetrates

several different forms of injustice with regard to disparate outcomes as a result of class. In a

system organized around a veil of justice as suggested by John Rawls, one of the first changes

that would need to happen would be an overhaul of the structure of the public defender system.

Missouri and Louisiana are two extreme examples states to make national news due to crises in

funding for public defenders that typify the inadequate resources and extreme overload of cases

within the public defender system20.

Due to the adversarial nature of the criminal court system and the punitive and

recidivistic nature of the prison system, until a veil of justice is put on and the right to effective

counsel no longer hinges on ones class, American society and the system of mass incarceration

will reflect Sumners Darwinistic vision of the the classes battling it out based on who is

strongest and holds the most resources instead of aiming to build a peaceful and equitable society

focused on achieving justice.

19
Ibid., 427.
20
Laurence Mathieu-Leger, "When There's Only One Public Defender in Town," The Marshall Project, May 11,
2017, , accessed May 3, 2017,
https://www.themarshallproject.org/2016/09/09/what-happens-when-there-s-only-one-public-defender#.fKQluuHpv.
 Burin 9

Bibliography

Alexander, Michelle. The New Jim Crow : Mass Incarceration in the Age of Colorblindness.

New York : [Jackson, Tenn.]: New Press ; Distributed by Perseus Distribution, 2010.

Kramnick, Isaac & Theodore Lowi eds. American Political Thought: A Norton Anthology.

W.W.

Norton & Company, 2009.

Jacobsen, Shannon. "The Differential Representation of Women and Men in Crime,

Victimization, and the Criminal Justice System." Sex Roles 66, no. 3 (2012): 293-95.

Leger, Mathieu-Laurence. for the Guardian. "When There's Only One Public Defender in Town."

The Marshall Project. accessed May 3, 2017.

https://www.themarshallproject.org/2016/09/09/what-happens-when-there-s-only-one-pu

blic-defender#.fKQluuHpv.

Spivak, Andrew., Loretta. Bass, and Craigs. John. "Reconsidering Race, Class, and Residential

Segregation in American Cities." Urban Geography 32, no. 4 (2011): 531-67.

Toch, Hans, and Kathleen Maguire. "Public Opinion Regarding Crime, Criminal Justice,

And Related Topics." Journal of Research in Crime and Delinquency 51, no. 4 (2014):

424-44.

Western, Bruce and Christopher Wildeman. "Law, Reparations and Racial Disparities: Criminal

Justice and Racial Disparities: Punishment, Inequality, and the Future of Mass

Incarceration." University of Kansas Law Review 57 (2009): 851-876

"World Economic Outlook Database April 2016." International Monetary Fund. Accessed May

11, 2017. https://www.imf.org/external/pubs/ft/weo/2016/01/weodata/index.aspx.