The criminal justice system is not biased against the poor

Myth: The criminal justice system is not biased against the poor.

Fact: Nearly everyone commits crime -- only the poor are generally punished for it.

Summary

All classes commit crime. However, the poor experience higher rates of arrest, criminal charges, convictions, long prison sentences and denial of parole. This winnowing process ensures that most rich criminals never see the inside of a prison, while overflowing them with the poor.

Argument

Crime is an activity common to all classes. Even back in 1968, when the crime rate was over a third lower than it is today, a President's Crime Commission surveyed 10,000 households and discovered that "91 percent of all Americans have violated laws that could have subjected them to a term of imprisonment at one time in their lives." The report also found that 64 percent of all males, and 27 percent of all females, in New York state had committed felonies.(1) Felonies, remember, are serious enough to draw at least one year in prison; most people in prison today are there on misdemeanors.

Yet America's prisons do not resemble a true cross section of society. The majority of state prisoners in 1991 had incomes under the poverty level:

Annual income for inmates free at least a year, 1991 (2)

Less than $9,999   53%
$10,000-$14,999    17
$15,000-$24,999    16
$25,000 or more    15

By contrast, the U.S. median income for part-time and full-time males in 1991 was $20,469. Only a fourth of the male population made less than $10,000. (3) State prisoners were also disproportionately unemployed before arrest:

Job status of state inmates before arrest, 1991 (4)

Employed       67%
   Full-time   55
   Part-time   12
Unemployed     33

By comparison, the national unemployment rate was 6.7 percent in 1991. (5) The education level was also far below average:

Education attainment of state inmates, 1991 (6)

No high school degree   65%
High school graduate    22
Some college or more    12

By comparison, the national average for high school dropouts was 22 percent. (7)

But if 91 percent of our society has admitted to committing crimes that would have required prison time, why do our jail-houses resemble the national poor house? After reviewing the statistics, noted criminologist Jeffrey Reiman writes: "For the same criminal behavior, the poor are more likely to be arrested; if arrested, they are more likely to be charged; if charged, more likely to be convicted; if convicted, more likely to be sentenced to prison; and if sentenced, more likely to be given longer prison terms than members of the middle and upper classes." (8) This winnowing process insures that few wealthy criminals ever see the inside of a prison.

Let's review the several levels of bias:

BIAS IN ARREST RATES

Numerous studies show that the middle class conducts just as much, if not more, crime as the lower class. Even so, police choose to arrest the poorer criminals at a higher rate. Most studies proving this bias have been on juvenile delinquency, but keep in mind that teen-agers and early twenty-year olds form the largest criminal age group.

One study interviewed 847 males and females between the ages of 13 and 16, and found that 88 percent of them admitted to committing at least one delinquent offense. But 88 percent of these youth do not have police records; generally, only the poorest do. (9)

A Philadelphia study of 3,475 juvenile delinquents found that police referred lower class boys to juvenile court much more often than upper class boys, even for equally serious offenses with similar prior arrest records. When it came to upper class boys, the police were more inclined to treat the matter informally with their parents. (10)

BIAS IN CONVICTIONS

The O.J. Simpson murder trial provided us with a snapshot of a system that is heavily biased towards money -- even more so than race. Without his Dream Team of lawyers, O.J. would have been convicted of murder within a matter of weeks. Indeed, trial lawyers everywhere conceded that death sentences have been handed out on lesser evidence. The counterpoint to this observation is the true-life movie Dead Man Walking. In the movie, white death-row inmate Matthew Poncelet tells Sister Helen Prejean: "There ain't no money on death row."

The rich have several important, if not decisive, advantages when it comes to handling the legal justice system. They can afford bail, which allows them to conduct their own investigations and prepare for trial. They can afford better attorneys (by itself an enormous edge), better expert witnesses, better private detectives, better alibis. In fact, rich corporations or individuals often threaten to put up such a huge legal battle that courts often seek to plea bargain away or even dismiss the charges.

On the other hand, the poor are often represented by a harried public defender or assigned attorney. One study found that most public defenders spend an average of five to ten minutes with their clients; even then the subject of conversation is not the facts of the case, but plea-bargaining strategies. (11) Not surprisingly, public defenders win dismissals or acquittals in 17 percent of their cases, compared to 18 percent for assigned attorneys, and 36 percent for privately hired counsel. (12)

This situation becomes even worse in death penalty cases. Because of the extreme poverty of most of the defendants, and the huge expense of trying a prolonged capital case, few lawyers of merit are willing to take them.

BIAS IN SENTENCING

There are two ways that sentencing is biased against the poor. First, the rich either write or lobby for the very laws that purport to oversee their behavior. Harsh sentences for the poor are softened whenever legislators write them for the rich, even though their crimes may be many times greater. Second, judges have shown themselves reluctant to make common criminals out of the community's best and finest. Both of these biases have created wide disparities in sentencing. For example, millionaire Jack Clark received no fine and only one year in jail for cheating stockholders out of $200 million. Yet in the same courthouse, a minimum wage worker who had stolen $5,000 received four years in prison -- that is, 160,000 times the punishment. (13)

A study of federal and state courts found that the poor were not only found guilty more often, but that they were not recommended for probation 27 percent of the time, compared to 16 percent for the upper classes. The poor were also not given suspended sentences 23 percent of the time, compared to 15 percent for the upper classes.

The disparities between the rich and the poor continue when it comes to both sentencing and parole:

Sentences and paroles for different classes of crime, 1986 (14) 

                            Average     Average time
                            sentence    served
                            (months)    (months)
----------------------------------------------------
Crimes of the poor: 
     Robbery                 128.5       46.5
     Larceny/theft            36.9       18.3
     Burglary                 35.6       17.9

Crimes of the rich:
     Fraud                    27.8       13.6
     Embezzlement             23.8       11.4
     Income tax evasion       18.3       10.3

To see how well the U.S. Criminal Justice System takes care of the rich, consider what happens at the Securities and Exchange Commission, the federal agency charged with keeping Wall Street honest. Researcher Susan Shapiro writes:

"Out of every 100 suspects investigated by the SEC, 93 have committed securities violations that carry criminal penalties. Legal action is taken against 46 of them, but only 11 are selected for criminal treatment. Six of these are indicted; 5 will be convicted and 3 sentenced to prison." (15)

Interestingly enough, when the government cracks down on the poor, it's praised for getting "tough on crime." But when it cracks down on the rich, it's condemned for "excessive regulation."

Return to Overview

Endnotes:

1. Isidore Silver, "Introduction" to the Avon edition of The Challenge of Crime in a Free Society (New York: Avon Books, 1968), p. 31. Although this is an old survey, the results today are almost certainly worse, because the crime rate has risen from 399 to 566 per 10,000 people from 1970 to 1992 (Source: FBI). And although the late 60s were known for their lawlessness, it is important to note that this survey asked about crimes ever committed in a person's life - which, at the time, covered the several quiet decades before 1968.

2. U.S. Department of Justice, Bureau of Justice Statistics, Survey of State Prison Inmates, 1991, March 1993, NCJ-136949.

3. U.S. Bureau of the Census, Current Population Reports, P60-188.

4. Survey of Prison Inmates, 1991.

5. U.S. Bureau of Labor Statistics, Bulletin 2307.

6. Survey of Prison Inmates, 1991.

7. U.S. Bureau of the Census, U.S. Census of Population, U.S. Summary, PC80-1-C1.

8. Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison (New York: MacMillan Publishing Company, 1990), p. 81.

9. Jay Williams and Martin Gold, "From Delinquent Behavior to Official Delinquency," Social Problems 20, no. 2 (1972), pp. 209-229.

10. Terence P. Thornberry, "Race, Socioeconomic Status and Sentencing in the Juvenile Justice System," The Journal of Criminal Law and Criminology 64, no. 1 (1973), pp. 90-98.

11. Jonathon Casper, "Did You Have a Lawyer When You Went to Court? No, I Had a Public Defender," Criminal Justice: Law and Politics, ed., Cole, pp. 239-240.

12. Dallin Oaks and Warren Lehman, "Lawyers for the Poor," Law and Order: The Scales of Justice, ed. A. Blumberg, p. 95.

13. Blake Fleetwood and Arthur Lubow, "America's Most Coddled Criminals," New Times, Sept. 19, 1975, pp. 26-29.

14. Federal Bureau of Prisons, Statistical Report, Fiscal Year 1986.

15. Susan Shapiro, "The Road Not Taken: The Elusive Path to Criminal Prosecution for White-Collar Offenders," Law and Society Review 19, no. 2 (1985), p. 182.