“The rich get richer and the poor get prison”. Discuss how the criminal justice system deals differently with crimes committed by the powerful and the powerless.
Reiman’s statement “the rich get richer and the poor get prison” implies a disparity in the way that the rich and the poor are treated throughout the criminal justice system. Indeed, an analysis of the available literature on crime shows that even at the point of constructing the meaning of ‘deviance’, the poor are more likely to be discriminated against and this discrimination continues throughout the criminal justice system from the point of arrest right through to sentencing. Various arguments have been postulated as to the reasons for this disparity. From a consensus standpoint, law reflects values held by everyone in a society and does not favour the powerful. Marxist theories on the other hand, argue that the criminal justice system works to the benefit of a wider structure of power in society. An examination of the evidence shows that throughout history, the law has been biased against individuals from poor backgrounds, particularly those from Black minority ethnic groups. Corporate crimes however, which are more likely to be committed by those from affluent backgrounds, are frequently treated with leniency despite the fact that they often cause more damage to individuals and result in greater environmental and financial costs. Even when men, women and children from middle-classes commit similar crimes to those typically undertaken by the working-classes, it is clear that the former experience far greater leniency.
Many people intuitively see crime as a basic phenomenon with certain acts being viewed as inherently criminal. The ideological function of the concept of the ‘rule of law’ claims that the legal system is an expression of the people’s will; that the meaning of the law is interpreted by an independent judiciary; and the laws are impartially enforced by a police force whose ‘modus operandi’ is legally constrained (Pearson, 1976:62). However, according to Becker (1963:9) social groups “create deviance by making the rules whose infraction constitutes deviance, and by applying those rules to particular people and labelling them as outsiders. The deviant is one to whom the label has been successfully applied”.
According to Reiner (2007:913) the view that criminality is constructed highlights the notion that deviance arises from the imposition of social judgements on others behaviour. Such judgements are established by the powerful through formulation of laws and their interpretation and enforcement by police, courts and other controlling institutions.
Indeed, Marxist theories argue that the criminal justice system works to the benefit of a wider structure of power in society, and that there is little that agents of social control can do to resist the present system They assert that the working classes are labelled as deviant and subsequently imprisoned because the ruling class rejects their values (Shelden and Hallett, 2007:62). Evidence to support Marxist analysis can be seen in the way that police practice is fundamentally structured by the legal institution of privacy. Police work focuses on crime that occurs in the public sphere, thereby targeting young men from economically marginal groups who have restricted access to private areas and are much more likely to lead their lives in public space than others (Stinchcombe, 1963, cited in Reiner, 2007).
It would be an exaggeration to assert that all laws served the interest of the ruling class. However, evidence shows that laws which are enforced the most vigorously happen to be those most likely to be violated by relatively powerless groups, especially racial minorities and those from lower socio-economic groups and the legal system can also be used to oppress or control certain groups As Friedman (cited in Shelden and Hallett, 2007:64) asserts “laws and legal institutions are part of the system that keeps the structure in place, or allows it to change only in approved and patterned ways. The criminal justice system maintains the status quo”
There is an abundance of evidence which exposes the way in which those who have been arrested and processed through the criminal justice system have consistently been drawn from the bottom of the social class structure (Quinney, 1970:18). According to Reiman (2007:104), the criminal justice system effectively weeds out the well-to-do, so that at the end of the road in prison, the vast majority of those we find there come from the lower classes (Christie, 2000:27). This weeding-out process starts at the very definition of crime which excludes a wide variety of dangerous actions performed by the wealthy in America (Reiman, 2007:104). The poor on the other hand, are arrested and punished by the criminal justice system much more frequently than their contribution to the crime problem would warrant (Reiman, 2007:108).
Although it is widely recognised that the poor suffer harsher treatment throughout the criminal justice process than more affluent classes, statistics on differential treatment of economic classes are rare, whereas statistics on differential treatment of races are available in abundance. For example, according to Reiman (2007:107), although the FBI tabulates arrest rates by race it omits class or income. However, there is general agreement between commentators that some of the race effects that have been found may be due in part to class effects. In this way, race can be used as a general proxy for class. Indeed, evidence shows that first and foremost black Americans are disproportionately poor. According to Reiman, (2007:107), 10 percent of white Americans received income below the poverty line compared to 23.6 percent of African Americans in 1999. Accordingly, in 2000, 3.5 percent of white workers were unemployed and 7.6 percent of blacks.
Furthermore, blacks who end up in jail are close in economic condition to whites who do. Some research suggests that race works to heighten the effects of economic condition on criminal justice outcomes, so that being unemployed and black significantly increases the chances of receiving a jail sentence over those associated with being either unemployed or black (Reiman, 2007:108).
Some commentators however, have proffered that social class, rather than race per se, is a better predictor of police decision-making. Sampson (1986, cited in Shelden and Hallett, 2007:225) found that the overall socioeconomic status of a community was more important than other variables. In essence, the lower the socioeconomic status of the community, the more likely it is that the police will formally process youth they encounter. Gold (cited in Reiman, 2007:110) supports this view arguing that boys who live in poorer parts of town are five times more likely to appear in some official record than boys from more affluent areas who commit similar offenses.
According to Reiman (2007:119) the poor are also treated more harshly in the courts with a poor defendant being more likely to be found guilty than a wealthier defendant. Two crucial factors influence the outcome. The first is the ability of the accused to be free on bail prior to trial, and the second is access to legal counsel able to devote sufficient time to the case. Since bail and good quality legal counsel cost money, it is hardly surprising that those from lower socio-economic backgrounds fair badly in the court system.
The introduction of ASBO’s (Anti-Social Behaviour Disorders) are an indication of how young people from poorer communities can be more likely to face unwarranted punishment compared to young people from middle-class communities. According to Brown (2003:203), measures introduced to tackle anti-social behaviour have been described as crime control through the coming together of social housing management and policing. However, according to Burney (2005:vii), ASBOs often rely on disproportionately punitive restraints on individuals held responsible for disrupting their communities, while doing nothing to deal with the possible causes of bad behaviour rooted in the impoverished and marginalized nature of the most deprived communities.
Indeed, the very definition of anti-social behaviour is so vague that it can sometimes be difficult to determine whether a criminal offence has actually taken place at all. As Burney (2005:8) illustrates, anti-social behaviour can be defined as “behaviour that unreasonably interferes with other people’s rights to use and enjoyment of their home and community”. The consequences of the flexible boundaries of anti-social behaviour are proffered by Squires and Stephen (2005:187) who argue that anti-social behaviour labelling runs in opposition to principles that have been historically valued within the British criminal justice system, such as ‘innocent until proven guilty’, and ‘beyond reasonable doubt’. In bypassing criminal law through the administration of anti-social behaviour orders guilt is often presumed and swift justice implemented. Thus, Young (1996, cited in Squires and Stephen, 2005:187) argues that instead of nurturing any sense of inclusion for already marginalised youth, this essentialism serves as a catalyst for social exclusion.
So far, this assignment has highlighted the way in which throughout each level of the criminal justice system, from arrest to sentencing, the likelihood of being treated leniently by the system is greater the better off one is economically, particularly if the individual is white. The following paragraphs will look more closely at the types of crime that middle-class people commit and how they are treated within the criminal justice system.
Many acts committed by powerful people are not considered criminal. According to Federal Bureau of Investigation figures, about two people will be murdered within the next hour. However, about six people per hour die from occupational diseases such as black lung and other cancers related to various occupations. (Mokhiber, 1996, cited in Shelden and Hallett, 2007:64). These are usually committed by wealthy white males who routinely escape prosecution and sanction (Shelden and Hallett, 2007:64). Moreover, these individuals often do not see themselves as criminals even when they knew they are violating the law (Gobert and Punch, 2000:2).
The financial costs of corporate crime are also immense. According to Gobert and Punch (2000:9), whereas the costs of common crime are between £30-£50 billion per annum in the UK, the costs of corporate crime have been estimated as 10-35 times higher (Slapper and Tombs, 1999:67). The fact that corporate crime clearly presents both serious human and financial costs to society begs the question as to why the instigators of corporate crime seem to ‘get away with it’.
One explanation as to why obtaining criminal convictions against corporations, even those who are frequent and repeat offenders has proved elusive is postulated by Sutherland (1983, cited in Gobert and Punch 2000:3) who asserts that part of the problem can be attributed to the inadequacies of the law. According to Gobert and Punch, 2000:10) the criminal law was not developed with companies in mind. Concepts such as ‘mens rea’ and ‘actus reus’, which make sense when applied to individuals, do not translate easily to a fictional entity such as a corporation. In some cases, executives claimed that their offences were committed for their company and that they did not personally profit directly from them. Therefore, they were able to reconcile their conduct with their conscience and emerge with no real perception of having done anything wrong (Gobert and Punch, 2000:4). In other cases, Nelken (2007:750) asserts that accountants and barristers have used their expertise to help businesses create tax avoidance schemes which must then seem as if they had done so accidentally (McBarnett, 1991, cited in Nelken, 2007:750).
Such crimes also rely on a certain amount of awareness on behalf of the victim. As Nelken (2007:749) argues, white-collar crimes are frequently what we call ‘complaintlessness’ crimes and those who suffer the consequences of them cannot be relied upon to act as a reliable source of information. Workers may be unaware of the risks to which they have been exposed and consumers do not always appreciate what they have lost (Nelken, 2007:749).
It is clear from the above paragraphs that companies are powerful entities individually and collectively, with substantial financial, legal and political influence (Gobert and Punch, 2000:8). A comparison of the treatment of ‘white-collar’, corporate crimes compared to that of crimes associated with those from poor socio-economic backgrounds reveals a clear disparity between the way that the powerful and powerless are treated throughout the criminal justice system. However, underlying this analysis is an assumption that the powerful and the powerless, essentially commit different crimes and therefore it might be assumed that it is the crimes that are treated differentially as opposed to the individual committing the crime. The following paragraphs will evaluate whether middle and upper class individuals are treated differently to working class individuals when they commit similar crimes.
Research published since 1978, using both official and self-reported data shows that there is no pervasive relationship between socio-economic background and delinquency. In fact, Reiman (2007:110) asserts that delinquency is widespread among middle and upper class individuals, although these individuals are rarely arrested. Even those who argue that young people from poor backgrounds are more likely to commit delinquent acts than those from higher status backgrounds also recognise that lower-class youth are significantly overrepresented in official records. Gold (cited in Reiman, 2007:110) asserts that about five times more lowest than highest status boys appear in the official record and if records were unselective, the ratio would be closer to 1.5:1.
Cromer (2004:394) highlights a good example of how middle-class children who commit crimes are viewed differently to those from poorer backgrounds. On January 1994, Derek Roth was found dead next to his taxi in the Herzliya, Israel. It was discovered that the murderers were middle-class boys from respectable families. This caused a moral panic and permissiveness was regularly cited as the underlying cause of the murder. Critics paid particular attention to the way in teachers and parents had lost control and were unable to control the behaviour of the younger generation.
The above paragraphs reveal that although middle class young people commit the same types of crimes as working class youth, they are clearly treated differently by the criminal justice system and society at large. An analysis of the implementation of anti-social behaviour orders shows that solutions to the behaviour of young delinquents in deprived areas arise in the form of individualistic punitive action, whereas law-breaking activities committed by middle-class youngsters are viewed as being the result of wider societal issues. Although this example does not discuss the type of punishment administered to these boys it is likely that the different societal attitudes portrayed towards these youngsters and many other middle class youngsters in similar circumstances, will be reflected in the criminal justice process.
The paper thus far, has discussed the differences between the treatment of the powerful and the powerless throughout the criminal justice system with a primary focus on working class and middle class men. However, it is clear that women and children from poor backgrounds are also likely to be given harsher punishments in the criminal justice system. It is important to note that women are not one homogenous group, and their status as women interacts with their class background and race. According to Cameron (1964, cited in Heidensohn, 1985:137), neither black or working class women experience leniency within the criminal justice system and Simon (2004) asserts that rape allegations from young working class women are seen as less credible than those from middle class professional women.
The disparate treatment of white, middle-class women and poor women of colour in the criminal justice system has been well-documented (Chigwada-Bailey, 1997). Huckerby (2003:149) highlights through her analysis of media coverage of infanticide, how the roles of race, culture, class and marital status impacted on the treatment of two infanticidal women, Khouer Her and Andrea Yates. In 1998, Khouer Her, a 24 year old Hmong immigrant estranged from her husband, strangled her six children and attempted suicide before calling 911 to report the incident. She was sentenced to fifty years imprisonment and pleaded guilty to six counts of second-degree murder. In 2001, Andrea Yates, a thirty-six-year-old white, middle-class, Christian woman in a traditional marriage, drowned her five children in the bath tub before calling 911. Yates pleaded not guilty by reason of insanity to two charges of capital murder for the deaths of two of her sons and her daughter. The jury recommended a sentence of life in prison and her lawyers submitted notice of appeal. These outcomes show a general belief that Yates deserves some degree of leniency in the punishment of her crime. It also shows that the image of the ‘mad’ mother is more readily created to explain the actions of white mothers who kill, than for poor Black women.
Children from poor backgrounds are also more likely to be discriminated against by the criminal justice system. When cases come from deprived environments, courts tend to show disregard, assuming that child abuse is understandable within those contexts, and then they tend to discredit the child’s allegations whilst exonerating the offenders. Because the courts view such cases as social issues, they are hesitant to get too involved (Casas & Mera, 2004:1).
In conclusion, this paper has analysed the way in which the powerful and the powerless are treated differentially throughout the criminal justice system, beginning with the very definition of crime and progressing through to the stages of arrest, charging, conviction and sentencing. It is evident that the operations of the criminal justice system are intrinsically unequal on the basis of both, class, race and gender, as the penal apparatus reproduces the divisions created in the whole structure of society. Not only are these categories of stratification in themselves, but when race and gender interacts with poverty the discriminatory treatment of women, children and individuals from Black ethnic minority groups is exacerbated. Not only are the poor arrested and charged out of proportion to their numbers for the kinds of crimes poor people generally commit but when we look at corporate crime, normally committed by the middle classes, the criminal justice system appears to be remarkably lenient. As a consequence, the criminal justice system can be portrayed as a ‘carnival mirror’ that throws back a distorted image of the dangers that lurk in our midst and deliberately provides the distinct impression that those dangers are the work of the poor.
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