Karl Marx maintained that the root of most crime and injustice could be found in class conflict. Within and without the academies of crime and justice, this contention is highly controversial. In fact, it is so controversial that here in the United States the whole idea of class itself is often in a state of political and social denial. Unlike gendered justice and sexism or racial (ethnic) justice and racism, class justice and classism has not been recognized in either the substantive or procedural sides of the law. Opponents of class justice argue that we are not only a so-called classless society but also a democracy in which all individuals are subject to due process, equal protection, and the rule of law. Although proponents of class justice do not take issue with the fact that no person is above the law, they do contend that many actions are beyond incrimination and adjudication, whereas other actions are selectively enforced and differentially punished according to class interests.
II. Key Events
A. Double Standards of Justice
B. Class, Crime, and the Law
Throughout most of the 19th century and well into the 20th, a blatant kind of class justice prevailed in the selective enforcement and differential application of the criminal and civil law to the haves and the have-nots. The laws themselves were heavily influenced by a reverence for private property and laissez-faire social relations. In terms of commercial transactions, the philosophy of the day was caveat emptor, “let the buyer beware.” In the area of business, farmers and new merchants alike were allowed the freedom to expand their particular domains and to compete and acquire both property and capital with little legal interference. By contrast, labor was highly regulated. Unions were considered an illegal interference with freedom of contract and an unlawful conspiracy infringing upon the employer’s property rights.
The administration of criminal (and civil) justice was chaotic, often corrupt, and subject to the buying of law enforcement and juries. An independent and decentralized criminal justice system designed for a more homogenized, pioneer, and primarily agricultural society was ill adapted for the needs of an increasingly complex, urban, and industrialized society. A social and cultural environment that was experiencing increasing numbers of immigrants from southern and eastern Europe, a changing means of rapid communication and transportation, and an expanding presence of wage-earning working classes called for a coordinated system of criminal justice.
By the end of the 19th century, the buying of justice that had prevailed earlier (available to those who could afford representation in the legislatures, in the courts, and in the streets) was threatening the very legitimacy of criminal justice in the United States. The initial laissez-faire emphasis on the right to acquire private property had blossomed into a full-fl edged national preoccupation with wealth and power. Political corruption became widespread, and political machines dominated urban areas: “The machines controlled city governments, including the police and the courts. Payrolls were padded and payoff s were collected from contractors” (Edelstein and Wicks 1977, 7). Graft and other forms of bribery contributed not only to the buying of justice by those who could afford it but also to a changing national morality. Rackets, “pull,” and protection were common antidotes to stubborn legal nuisances. Prevailing values of wealth and success predominated as guiding principles of right and wrong. “The ability to ‘make good’ and ‘get away with it’ off sets the questionable means employed in the business as well as professional worlds. Disrespect for the law and order is the accompanying product of this scheme of success” (Cantor 1932, 145).
Those who were marginalized — especially the poor, unemployed, women, and people of color — were rarely if ever in a position to buy justice. As the marginalized groups of immigrants and others grew in urban centers across the United States and as the miscarriages of justice flourished, the need to reform the institutions of criminal justice grew because the country was beginning to experience bitter class wars. The working classes aggressively resisted exploitation through on-the-job actions and wide social movements. To combat challenges to the emerging monopoly or corporate order of industrial capitalism, the wealthy ruling classes initially employed illegal violence, such as the hiring of thugs and private armies. Later, they retained the services of private security companies, such as Pinkerton’s, to infiltrate and break up worker organizations.
Double Standards of Justice
In 1964, William Rummel received three years in prison after being convicted of a felony for fraudulently using a credit card to obtain $80 worth of goods.
Five years later, he passed a forged check in the amount of $28.36 and received four years. In 1973, Rummel was convicted of a third felony: obtaining $102.75 by false pretenses for accepting payment to fix an air conditioner that he never returned to repair. Rummel received a mandatory life sentence under Texas’s recidivist statue. He challenged this sentence on the grounds that it violated the Eighth Amendment’s prohibition of cruel and unusual punishment by being grossly disproportionate to the crime.
In Rummel v. Estelle (1980), the U.S. Supreme Court affirmed Rummel’s life sentence for the theft of less than $230 that never involved force or the threat of force. Justice Louis Powell’s dissent noted “it is difficult to imagine felonies that pose less danger to the peace and good order of a civilized society than the three crimes committed by the petitioner” (Rummel v. Estelle 1980, 295). However, Justice William Rehnquist’s majority opinion stated there was an “interest, expressed in all recidivist statues, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law” (Rummel v. Estelle 1980). After “having twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the norms prescribed by the criminal law” (Rummel v. Estelle 1980).
Now consider the case of General Electric (GE), which is not considered a habitual criminal offender. Nevertheless it has been prosecuted for diverse crimes over many decades. In the 1950s, GE and several companies agreed in advance on the sealed bids they submitted for heavy electrical equipment. This price-fixing defeated the purpose of competitive bidding, costing taxpayers and consumers as much as a billion dollars. GE was fined $437,000—a tax-deductible business expense—the equivalent of a person earning $175,000 a year getting a $3 ticket. Two executives spent only 30 days in jail, even though one defendant had commented that price-fixing “had become so common and gone for so many years that we lost sight of the fact that it was illegal” (Hills 1987, 191).
In the 1970s, GE made illegal campaign contributions to Richard Nixon’s presidential campaign. Widespread illegal discrimination against minorities and women at GE resulted in a $32 million settlement. Also during this time, three former GE nuclear engineers—including one who had worked for the company for 23 years and managed the nuclear complaint department—resigned to draw attention to serious design defects in the plans for the Mark III nuclear reactor because the standard practice was “sell first, test later” (Hills 1987, 191).
In 1981, GE was convicted of paying a $1.25 million bribe to a Puerto Rican official to obtain a power plant contract. GE has pleaded guilty to felonies involving illegal procurement of highly classified defense documents, and in 1985 it pleaded guilty to 108 counts of felony fraud involving defense contracts related to the Minuteman missile. In spite of a new code of ethics, GE was convicted in three more criminal cases over the next few years, in addition to paying $3.5 million to settle cases involving retaliation against four whistle-blowers who helped reveal the defense fraud. (GE subsequently lobbied Congress to weaken the False Claims Act.) In 1988, the government returned another 317 indictments against GE for fraud in a $21 million computer contract.
In 1989, GE’s stock brokerage firm paid a $275, 000 civil fine for discriminating against low-income consumers, the largest fine ever under the Equal Credit Opportunity Act. A 1990 jury convicted GE of fraud for cheating on a $254 million contract for battlefield computers, and journalist William Greider reported that the $27.2 million fine included money to “settle government complaints that it had padded bids on two hundred other military and space contracts” (Greider 1996, 4).
Because of tax changes that GE had lobbied for and the tax cuts passed under President Ronald Reagan generally, GE paid no taxes between 1981 and 1983, when net profits were $6.5 billion. In fact, in a classic example of corporate welfare, GE received a tax rebate of $283 million during a time of high national deficits even though the company eliminated 50,000 jobs in the United States by closing 73 plants and offices. Further, “Citizen GE,” whose advertising slogan has been “Brings good things to life,” is one of the prime environmental polluters and is identified as responsible for contributing to the damage of 47 sites in need of environmental cleanup in the United States alone.
Even though felons usually lose political rights, GE’s political action committee contributes hundreds of thousands of dollars to Congress each year, and it now owns NBC television, with all of its influence. In spite of having been convicted of defrauding every branch of the military, representatives from GE are frequently invited to testify before Congress. If the corporation’s revenues were compared with the gross domestic product of countries, it would be among the top 50 largest economies in the world. With this kind of political, economic, and social power, it is easy to understand why “three strikes and you’re out” does not apply to the big hitters like GE.
The pattern outlined in these examples was reinforced in 2003, when the Supreme Court upheld a 50-year sentence for two acts of shoplifting videos from Kmart. Under California’s three-strikes law, Leandro Andrade’s burglary convictions from the 1980s counted as the first two, and the prosecutor decided to charge the shoplifting incidents as strikes, which carry a mandatory sentence of 25 years each. The Supreme Court, citing Rummel v. Estelle, held that the sentences were neither disproportionate nor unreasonable (Lockyer v. Andrade 2003).
At the same time, Andrew Fastow, Enron’s chief financial officer, negotiated a plea bargain for 10 years in prison. Fastow had been instrumental in fraud, which resulted in the largest bankruptcy in U.S. history at that time. He had worked the deals to launder loans through allegedly independent entities to make them appear as revenue for Enron, and he helped push the accountants to approve the deals and used the massive banking fees Enron paid to silence Wall Street analysts who asked questions about Enron’s finances. Fastow was originally charged with 109 felony counts, including conspiracy, wire fraud, securities fraud, falsifying books, as well as obstruction of justice, money laundering, insider trading, and filing false income tax returns. The sentence was negotiated in an environment in which getting tough on corporate crime was seen as a high priority (Leighton and Reiman 2004).
Class, Crime, and the Law
The rich and powerful use their influence to keep acts from becoming crimes, even though these acts may be more socially injurious than those labeled criminal. Further, they are also able to use mass-mediated communication to shape the public discourse and moral outrage about crime. In short, the corporate elite’s relative monopoly over the airways allows them to act as so-called transmission belts for creating consensus over what is and is not a crime. For example, Jeffrey Reiman, in the eighth edition of The Rich Get Richer and the Poor Get Prison (2007), notes that multiple deaths that result from unsafe workplaces tend to get reported as accidents and disasters, whereas the term mass murder is reserved exclusively for street crime. Although there are differences between the two, especially in the level of intentionality, it is not clear that one should be a regulatory violation and the other a crime.
If the point of the criminal law is to protect people’s well-being, then why was no crime committed in the 2005 deaths of 12 miners in West Virginia? “Time and again over the past four years, federal mining inspectors documented the same litany of problems at central West Virginia’s Sago Mine: mine roofs that tended to collapse without warning. Faulty or inadequate tunnel supports. A dangerous buildup of flammable coal dust” (Warrick 2006, A4). In the two years before this explosion, the mine was cited 273 times for safety violations, one-third of which were classified as “significant and substantial,” and “16 violations logged in the past eight months were listed as ‘unwarrantable failures,’ a designation reserved for serious safety infractions for which the operator had either already been warned, or which showed ‘indifference or extreme lack of care’ ” (Warrick 2006, A4). This state of affairs seems to fit within the criminal law categories of knowing, reckless, or negligent, but most matters like this stay within the realm of administrative sanctions and the civil law.
Outside of mining, the situation is the same. From 1982 to 2002, the Occupational Safety and Health Administration (OSHA), which has primary responsibility for the nation’s workplace safety, identified 1,242 deaths it concluded were related to “willful” safety violations. Only 7 percent of cases were referred for prosecution, however, and “having avoided prosecution once, at least 70 employers willfully violated safety laws again, resulting in scores of additional deaths. Even these repeat violators were rarely prosecuted” (Barstow 2003). One of the many barriers is that causing the death of a worker by willfully violating safety laws is a misdemeanor with a maximum sentence of six months in jail; therefore, such cases are of little interest to prosecutors. This level of punishment was established in 1970 by Congress, which has repeatedly rejected attempts to make it tougher; consequently, harassing a wild burro on federal lands carries twice the maximum sentence of causing a worker’s death through willful safety violations. Compare the lack of change in the punishment for a worker’s death with the escalating toughness for all types of street crime, in which Congress’s “tough on crime” attitude led to three-strikes laws, expansion of the number of strikable offenses, mandatory minimums, increasingly severe sentencing guidelines, and increased offenses eligible for the death penalty. Since the early 1990s, however, Congress has voted down all laws to increase penalties for workplace deaths, even recent modest proposals to increase the maximum penalty to 10 years (Barstow 2003).
In terms of class justice generally, much of the harmful and illegitimate behavior of the elite members of society has not traditionally been defined as criminal, but nearly all the harmful and deviant behavior perpetrated by the poor and the powerless, the working and middle classes, is defined as violating the criminal law. Thus, basing crime control theory and practice on a neutral criminal law ignores the fact that the legal order and the administration of justice reflect a structural class bias that concentrates the coercive power of the state on the behaviors of the relatively poor and powerless members of society. These omitted relations of class justice reveal the importance of two systemic operations in the administration of criminal justice: selective enforcement and differential application of the law. Selective enforcement of harms by the law refers to the fact that most harm perpetrated by the affluent is “beyond incrimination” (Kennedy 1970). As for the harms committed by the politically and economically powerful that do come within the purview of criminal law, these are typically downplayed, ignored, or marginalized through differential application of leniency and/or compassion.
Similarly, criminologist Stephen Box suggests that one of the most important advantages of corporate criminals lies “in their ability to prevent their actions from becoming subject to criminal sanctions in the first place” (Braithwaite 1992, 89).
Although certain behaviors may cause widespread harm, criminal law does not forbid abuses of power in the realm of economic domination, governmental control, and denial of human rights. As we saw in the opening narrative of this entry, being a habitual offender is against the law in most areas, where “three strikes and you’re out” applies to street criminals. But habitual offender laws do not apply to corporate persons (like GE) that can repeatedly commit serious crimes without being subjected to these statutes or to the legal possibility of a state revoking a corporation’s charter to exist.
In some cases, harmful actions will be civil offenses rather than criminal ones, but the difference is significant because civil actions are not punishable by prison and do not carry the same harsh stigma. A plea to civil or administrative charges does not amount to an admission of guilt and thus cannot be used against a business in other related litigation. Other destructive behavior may not be prohibited by civil law or regulations created by administrative agencies. In this respect, the tobacco industry produces a product that kills 400,000 people each year, but its actions are not illegal, not a substantial part of the media campaign of the Office for National Drug Control Policy or Partnership for a Drug Free America, or even subject to federal oversight as a drug.
When corporations are charged, they can use their resources to evade responsibility. Criminologist James Coleman (1985) did an extensive study of the enforcement of the Sherman Antitrust Act in the petroleum industry and identified four major strategies that corporations employ to prevent full application of the law. First is endurance and delay, which includes using expensive legal resources to prolong the litigation and obstruct the discovery of information by raising as many motions and legal technicalities as possible. Second is the use of corporate wealth and political connections to undermine the will of legislators and regulators to enforce the law’s provisions. Th ird is secrecy and deception about ownership and control to prevent detection of violations and make them more difficult to prove. Fourth are threats of economic consequences to communities and the economy if regulations are passed and/or fully enforced.
One of the classic statements on this topic, first referred to by former General and President Dwight D. Eisenhower as the “military–industrial complex,” is a book by C. Wright Mills called The Power Elite (1956). He contended that an elite composed of the largest corporations, the military, and the federal government dominates life in the United States. Mills argued that these three spheres of power are highly interrelated, with members of each group coming from similar upper-class social backgrounds, attending the same private and Ivy League universities, even belonging to the same social or political organizations. In addition to their mutual “ruling class interests,” corporate elites also make large political donations to both the Republicans and Democrats to ensure their access to the law-making process.
Reiman suggests that the result of these relations is that law is like a carnival mirror. It distorts our understanding of the harms that may befall us by magnifying the threat from street crime because it criminalizes more of the conduct of poor people. At the same time, it distorts our perception about the danger from crime in the office suites by downplaying and not protecting people from the harms perpetrated by those above them in the class system. As a consequence, both the criminal law and the administration of justice do “not simply reflect the reality of crime; [they have] a hand in creating the reality we see” (Reiman 1998, 57). Thus, to say that the criminal law appropriately focuses on the most dangerous acts is a problematic statement because the criminal law shapes our perceptions about what is a dangerous act.
Reiman also argues that the processing of offenders serves to “weed out the wealthy.” Selective enforcement means that many harmful acts will not come within the realm of criminal law, and if they do, it is unlikely that they will be prosecuted, “or if prosecuted, not punished, or if punished, only mildly” (Reiman 1998, 57). This observation is consistent with the analysis in Black’s highly referenced and acclaimed book The Behavior of Law (1976). Black sought to discover a series of rules to describe the amount of law and its behavior in response to social variables such as stratification, impersonality, culture, social organization, and other forms of social control. When it comes to issues of class, the variables of stratification and social organization are the two most relevant.
Black proposed that the law varies directly with hierarchy and privilege, so that the more inequality in a country, the more law. He also applied his proposition to disputes between two parties of unequal status and wealth. Based on a wide variety of cases, Black concluded there is likely to be more law in a downward direction, such as when a rich person is victimized by a poorer one. This means the use of criminal rather than civil law, for example, and a greater likelihood of a report, investigation, arrest, prosecution, and prison sentence. In contrast, when the wealthier harms the poorer, Black predicted there would be less law, meaning civil law, monetary fines rather than jail, and therapeutic sanctions rather than punitive ones. Further, Black argued that there is likely to be more law in the downward direction when an individual victimizes a group high in social organization, such as a corporation or the state. Conversely, less law and a pattern of differential application are likely to be the result of a corporate body or the state victimizing individuals or groups of individuals that have lower levels of social organization, such as poor communities.
Although attention has been paid to examples from occupational safety, the analysis provided here also applies to financial crimes, including several episodes of massive and widespread fraud. For example, Representative Frank Annunzio, who was chairman of the House Subcommittee on Financial Institutions that investigated the prosecution of criminals involved in the savings and loan (S&L) wrongdoings of the late 1980s, made the same points that Reiman and Black do in his opening remarks to one congressional hearing:
Frankly, I don’t think the administration has the interest in pursuing Gucci-clad white-collar criminals. These are hard and complicated cases, and the defendants often were rich, successful, prominent members of their upper-class communities. It is far easier putting away a sneaker-clad high school dropout who tried to rob a bank of a thousand dollars with a stick-up note, than a smooth talking S&L executive who steals a million dollars with a fraudulent note. (Hearings 1990, 23)
These comments highlight the difficulty and reluctance in prosecuting upper-class criminals even though the harm done is much greater than that due to street crime. Some S&L executives personally stole tens of millions of dollars and others were responsible for the collapse of financial institutions that needed government bailouts to the tune of $1 billion. The total cost of the S&L bailout ultimately climbed to about $500 billion, yet few S&L crooks went to prison, and the ones who received prison sentences got an average of two years, compared with an average of nine years for a bank robber (Hearings 1990).
After such expensive and widespread fraud, Congress briefly decided to get tough, but it soon removed all the regulations put in place to safeguard against similar fraud. According to the authors of Big Money Crime, soon after the S&L crisis, Congress went on a wave of “cavalier” financial deregulation, creating the “paradox of increasing financial deregulation coming on the heels of the most catastrophic experiment with deregulation in history” (Calavita, Pontell, and Tillman 1997, 10). These actions set the stage for the 2002 financial crimes involving Enron, WorldCom, Global Crossing, Tyco, and several other billion-dollar corporations. Although a few of the responsible chief executives found themselves doing time behind bars, most of those involved in these frauds and crimes found themselves escaping, courtesy of class justice. At the same time, the victims of these crimes—workers, consumers, investors, retirees, and more—received little or no compensation, despite the fact that many lost their life savings.
Historically then, based on the past—long-term and short-term—and on the present, and given the prevailing political and economic arrangements, and barring a major revolution in the organization of multinational or global capitalism, class justice is looking very secure into the foreseeable future. It received a painful prick from the American populace after the collapse—and government bailout—of various Wall Street investment firms and major banks and insurers in 2008–2009; but very few if any of the custodians of what suddenly had become “toxic assets” ended up being prosecuted. To borrow the rhetoric of the time, Main Street was angry at Wall Street for the latter’s misuse of investors’ funds (in the form of “collateralized debt obligations” and other financial inventions), but expressions of anger and calls for additional financial regulation was as far as the matter went.
Gregg Barak and Paul Leighton
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