The arrests earlier this month of 50 wealthy, well-connected individuals for allegedly taking part in an illegal cheating scheme to get their kids admitted to college has hit a raw nerve, raising uncomfortable questions about entitlement, accountability, greed, snowplow parenting, and the flimsy foundation bolstering the so-called meritocracy.
Can it also finally push the country toward a reckoning with its highly unequal systems of justice?
There are two overarching critiques of our current justice system: (1) Its footprint is too heavy and large, ensnaring people who do not need to be there, relying too heavily upon incarceration to address every offense, and regularly doling out gratuitously harsh sentences that have no deterrent effect; (2) it is actually two vastly unequal systems of justice: one for the mostly white, affluent, and connected, and another for people of color, immigrants, and those who lack resources or influence. These two critiques usually go hand in hand, but there is a danger that focusing on the second problem makes the first one worse. And that is the risk we face at the moment with the cheating scandal and other major cases of public corruption.
Research conducted by FrameWorks Institute, in conjunction with the Charles Hamilton Houston Institute at Harvard Law School, has shown that advocates of criminal justice reform sometimes inadvertently push messages that actually harden public support for harsh criminal justice policies. (Disclosure: I worked at the Charles Hamilton Houston Institute for a decade.)
FrameWorks’ interviews and focus groups confirmed, not surprisingly, that much of the American public takes a highly punitive view of lawbreaking when committed by “rational actors” who willingly choose to break the law. When presented with evidence of unequal application of the law against rational actors from marginalized groups, most will advocate for making penalties harsher for rational actors from outside of those marginalized groups.
While, on some level, one could argue that this would make the system more “fair,” it does not make it smaller, more forgiving, or less reliant upon incarceration—all goals of the larger reform movement.
You could see what FrameWorks has labeled the “fairness trap” ensnare Michael Eric Dyson, a fierce proponent of justice reform, during a recent MSNBC discussion about the appropriate punishment for the wealthy and famous defendants caught up in the college admissions scandal. At the beginning of the conversation, Dyson resisted the notion of prison for these defendants. But then, when pushed by Susan Page, he fell into the common logic that fairer means harsher:
CHRIS MATTHEWS: Should these people go to jail?
SUSAN PAGE: If they broke the law …
MICHAEL ERIC DYSON: Well, their demoralization is punishment enough. But, look, people go to jail for a lot less.
PAGE: Their demoralization is punishment? I don’t think so.
DYSON: No, no, I’m saying, people vote the wrong way and get four and five years. So, yes, somebody’s going to have to suffer here.
It is not just the college admissions case that has helped push this narrative in recent weeks, either. Just look at the “lenient” 47-month sentence Paul Manafort was handed earlier this month for his litany of financial crimes. (His total sentence was later increased to 90 months.) Liberals and conservatives alike were outraged by this sentence. A defense attorney sent out this typically outraged tweet: “For context on Manafort’s 47 months in prison, my client yesterday was offered 36-72 months in prison for stealing $100 worth of quarters from a residential laundry room.” Democratic presidential primary candidate Sen. Elizabeth Warren, meanwhile, tweeted the story of a homeless man who received a life sentence for selling $20 worth of pot as a contrast to Manafort’s light punishment.
John Pfaff, professor of law at Fordham University, has a cogent explanation for what is happening here. Forty years of “tough on crime” rhetoric and practice have inured much of the public to the horrors of prison. As Pffaff tweeted, “We’ve anchored onto unnecessarily long and quite dehumanizing sentences and, without necessarily even realizing it, deeply internalized them as right. … As hated as it is by many, the severity of the current system has wormed its way into our hearts and minds as the presumptive baseline.”
Most likely, the angry tweets about Manafort’s sentence served to reinforce the public’s embrace of harsher punishments across the board, not a lesser one for the homeless man or the individual who stole quarters from the laundry room.
It is worth remembering that despite how ubiquitous incarceration has become in the lives of so many, American prisons neither rehabilitate nor teach anyone anything except, perhaps, despair. Individuals are robbed of their freedom, their dignity, their hope, and often their health. Prison ravages families and communities emotionally and financially. Many are released in far worse shape than when they entered, broken and embittered, often physically and mentally ill, with a permanent stigma that hobbles them for the rest of their lives. Meanwhile, women make up the fastest-growing prison population, and more than half of America’s female prisoners are mothers. The absence of imprisoned parents causes lifelong trauma and hardship for children.
Further, the financial toll on families caught up in “the carceral state” can and does break them. Rep. Ayanna Pressley recently described on Twitter her own family’s experience with the prison state: “While my father was in the throes of his substance abuse disorder & in and out of the criminal justice system, our entire family was serving time with him. Incarceration is a shared sentence for families.”
Prison is also incredibly stressful for those who work there. A 2013 U.S. Department of Justice Office of Justice Programs Diagnostic Center study found corrections officers have a much higher rate of suicide than those in other occupations, experience some level of post-traumatic stress disorder during their careers, and, on average, will die before they turn 60 years old.
Health organizations are starting to recognize our rates of incarceration for what they are: a public health menace. San Francisco’s Health Commission recently voted to declare incarceration a public health issue. “Each experience of being incarcerated is physically and psychologically traumatic with lasting impact on individuals, their families, communities, and especially to pregnant mothers,” the resolution described.
So how do we harness the public’s agitation with the uneven application of criminal sanctions into a system that is more focused on actual justice than more universally harsh punishments?
One comparison that was made in the aftermath of the admissions scandal illustrates how we might press for non-criminal sanctions or solutions. Several commenters contrasted the lenient treatment they predict Lori Loughlin and Felicity Huffman—the two most prominent faces of the scandal—will receive with the spectacularly cruel prison sentence meted out to Tanya McDowell for sending her 6-year-old son to a Norwalk, Connecticut, school while she living without a home in Bridgeport. She was convicted of first-degree larceny for “stealing” an education and sentenced to 12 years in prison.
Left alone, such a comparison may well increase public support for a 12-year sentence for Loughlin and Huffman, not necessarily a lighter one for McDowell. But what if we used this example to propose pragmatic, restorative approaches for both “offenses” that do not involve prison for either? Tanya McDowell could receive the training and drug treatment she needed to be able to afford a home for her and her child in a neighborhood where he could receive a decent public education. Loughlin and Huffman and their cohort of cheating parents could be required to start a scholarship fund for worthy students who cannot afford to attend college. Or, better yet, they could be required to meet with, apologize to, and hear from the families of those students who were squeezed out of colleges to make room for their children. Perhaps those families could figure out the appropriate reparations for Loughlin, Huffman, and their ilk. My guess is they would not let these celebrities off easy.
Ultimately, “fairness” alone can be a double-edged sword. It was, after all, the rationale used by officials to impose zero tolerance policies in schools and mandatory minimum sentences in court. Both have deeply damaged generations of vulnerable children, adults, and families, and resulted in grossly disproportionate punishments. When pointing out the stark inequalities that are so pervasive in our current system, it is critical that we not equate “justice” or “evening the playing field” with the imposition of harsh prison sentences for the rich that match those routinely given to the poor and to individuals of color. That kind of thinking is what got us into this mess in the first place.