Two in one: differences in the US justice system for the rich and the poor

One in ten Black males in their thirties is in prison or jail in the United States. A grim reminder that the country has two criminal systems: one for the poor, one for the rich, says expert on sentencing policy.

More than 60% of all people in US prison are now racial and ethnic minorities, and the vast majority are poor. The Sentencing Project, an NGO dedicated to addressing unjust and ineffective sentencing policies, wrote in a 2013 report that United States has two criminal justice systems: one for wealthy people and another for poor people and minorities.

We spoke to Marc Mauer, Executive Director of the Sentencing Project and one of the country’s leading experts on sentencing policy, race and the criminal justice system, about the disparity.

ResearchGate: Can you give us some background into what the Sentencing Project is about?

Mauer: The Sentencing Project was founded 30 years ago as an NGO dedicated to reducing the scale of incarceration in the U.S. by addressing unjust and ineffective sentencing policies. The organization produces research on trends and problems within the criminal justice system, advocates for changes in policy and practice to reduce excessive prison terms, and promotes racial justice as a key element of criminal justice reform.

RG: In 2013, a Sentencing Project report noted that “The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and minorities.” What does this mean?

Mauer: While the law is theoretically race- and class-neutral, in practice access to resources creates great disparities in how justice is dispensed in the U.S. Poor communities and indigent defendants are disadvantaged at each stage of the criminal justice process, including: law enforcement policies such as "stop and frisk" are employed heavily in low-income communities of color, even though the vast majority of persons stopped by police have committed no crime; money bail as a condition of pretrial release results in the detention of poor people, limiting access to counsel and causing family hardship; indigent defendants have to rely on court-appointed attorneys, many of whom are inexperienced and/or maintain high caseloads; given the limited availability of publicly-funded treatment programs, access to such services as an alternative to incarceration is much more available to defendants with family resources to pay fees.

RG: How has this dual system contributed to disproportionate incarceration of poor people and minorities?

Mauer: Skewed policing practices contribute to disproportionate incarceration of low-income people of color, particularly for drug offenses. While people of different racial/ethnic groups use and sell drugs at roughly similar rates, drug law enforcement is more heavily focused on communities of color, leading to higher rates of incarceration. Other factors as well, such as pretrial detention, have been demonstrated to lead to a greater likelihood of conviction and prison term upon conviction.



RG: What is it about the “two systems” that is benefiting the wealthy and non-minorities? How are they able to exploit the system?

Mauer: In general, wealthy people are not exploiting the system, but rather are able to take advantage of the rights afforded to everyone under our system of government to a degree that is not available to poor people. This plays out in the ability to post bail, to hire capable defense counsel, to present a plan for alternative sentencing, and other areas. Rather than criticize their ability to do so, we should instead hold this up as the standard of justice for all people, not just those with means.

RG: We interviewed professor Mona Lynch about the damage of mass incarceration and she mentioned “Clinton’s 2015 admission [that his crime law made the problem worse] demonstrates just how much has changed in the political arena. Now, it looks like fixing criminal justice, rather than combatting crime, can be a strategic political position.” What is your opinion on this?

Mauer: Over the past decade there has been an evolving political climate on criminal justice reform, with key leaders in both major political parties increasingly supportive of addressing mass incarceration. Both Democratic and Republican governors in a number of states have endorsed sentencing reform legislation, particularly in regard to drug offenses, and bipartisan legislation is pending in Congress that would scale back excessive penalties in many federal cases. While these developments are encouraging, we are not yet at the point where justice reform is uniformly viewed as being politically advantageous, and there are still far too many instances of political leaders being either hesitant or hostile to considering such policy changes.

RG: Are politicians taking the right steps and are they actually substantial?

Mauer: Yes, and we've seen political leaders embrace a variety of substantial reforms, often following upon longstanding advocacy campaigns. Highlights include: the 2010 adoption by Congress of the Fair Sentencing Act, reducing excessive sentences for crack cocaine offenses; seven states abolishing the death penalty over the past decade; California voters supporting Proposition 47 in 2014, reducing six low-level property and drug offenses from felonies to misdemeanors.

RG: Do you know of any other countries where a similar “dual system” could impede prosecution in the Panama papers case?

Mauer: I can't speak to prosecution of these offenses, but we do know that race and class disparities are generally pervasive around the world. For example, the scale of incarceration disparities between Native people in Canada and Aboriginal people in Australia compared to whites is similar to the black/white disparity in the U.S.

Feature image courtesy of Wikimedia Commons.