History from a critical perspective
• "Personal troubles of milieu" and "public issues of social structure."
– “personal troubles” – issues affecting the individual only (e.g., relations with his family, money problems, work problems)
– “public issues of social structure” – "matters that transcend those local environments of the individual" and when "some value cherished by publics is felt to be threatened“ A person may be addicted to a drug or alcohol and that is his personal issue
– but when millions are then it is a “public health” issue related to the social structure of society
– dig beneath the everyday assumptions and unquestioned "truths" - there is a world taken for granted that must be challenged
Zinn’s Radical History
• Five reasons why a “radical history” will help:
– (1) We can intensify, expand, sharpen our perception of how bad things are, for the victims of the world
– (2) We can expose the pretensions of government to either neutrality or beneficence
– (3) We can expose the ideology that pervades our culture - “ideology” meaning a rationale for the going order
– (4) We can recapture those few moments in the past which show the possibility of a better way of life than that which has dominated the earth thus far
– (5) We can show how good social movements can go wrong, how leaders can betray their followers, how rebels can become bureaucrats, how ideals can become frozen and reified
The Importance of Social Class
• “Class” is a word you rarely hear – except in college
• Class position determines just about everything in life
– Why are you at UNLV and not Harvard?
Class determines the following:
– what behaviors come to be defined as "criminal" and thus subject to their enforcement
– who is defined as "criminal“
– how far into the cj system a particular case is processed
– the final sentence of a criminal case.
– Also related to whether or not one can make bail, and whether or not one has an attorney, and even the quality of the representation
Pyrrhic defeat theory
• a "Pyrrhic victory" is where a particular battle is won, but the costs in terms of troops lost amounts to a defeat.
• Reiman suggests that "the failure of the criminal justice system yields such benefits to those in positions of power that it amounts to success“
Designed to Fail?
• The cj system is designed to fail
– Distorts the crime picture by deflecting the discontents and anger of middle class Americans toward the poor and racial minorities
– Focuses on crimes of the poor rather than the rich
– Operates as if crime is merely a function of isolated acts by individual offenders and has no underlying social causes
Criminal Law -basic foundation of the criminal justice system
• What is a “Crime”? Why are some harmful behaviors defined as “crime” and not others?
– Tobacco and alcohol cause in excess of 500,000 deaths in America (tobacco causes an est. 5 mil deaths worldwide) and are not illegal – why?
– Homicide is the illegal taking of a human life – sometimes killing someone is perfectly legal
– Rape is supposed to be universally condemned – but in many cases the offender is not prosecuted because some believe “she asked for it”
• Law is a creation of specific people holding positions of authority
• it is not the creation of a divine authority, as was once believed
Three Models of the Law
I. Consensus Model of Law
• reflects the "will of the people" and values held in common
• laws serves to establish the "moral boundaries" of a community or society
• law is an instrument used to resolve conflicting interests in a society – it is neutral as far as class or race or gender is concerned
• law helps to maintain "social order“
• protects public, not private interests
• Law is needed to restrain human’s “wicked ways”
II. Interest Group/Conflict model
• While the consensus model argues that “societal needs” are met through law, the conflict model asks “whose needs”?
• Conflict model starts with the fact that society is highly segmented along class, racial and gender lines
• Quinney wrote: “Law is a result of the operation of interests and incorporates the interests of specific persons and groups ... Law is made by men, representing special interests, who have the power to translate their interests into public policy"
The social reality of crime as an example:
• What this theory suggests is that “crime” is a “social construction” not something inherent in the behavior itself
• What is considered a “crime” in one era might not be considered in another era
– Drug laws are a classic case in point
• The key is the notion of “power”
• Power - the ability of persons and groups to determine the conduct of other persons and groups.
• In a class society, some groups have more power than others and are able to have their interests represented in policy decisions, often at the expense of less powerful groups.
– Example: white, upper‑class males have more power and their interests are more likely to be represented than those of working‑ or lower‑class minorities and women.
III. A Critical/Marxist Model of Law
• Law is part of the superstructure of society and helps support and perpetuate the substructure or economic base, namely a capitalist economic and social system
• Two variations:
• law is an "instrument" or tool through which the ruling class (that relatively small group that owns and controls most of the wealth in society - or what Marx called the means of production) dominates the society
• The law might sometimes operate against the short-term interests of the ruling class but in favor of the long-term interests of the capitalist system as a whole
• The ruling class does not always get its way
• Law may serve other groups from time to time – e.g., civil rights laws
• But regardless, the capitalist system survives because it benefits a small minority the most
• Gini coefficient measures income inequality
• These charts represent the latest figures on inequality.
The Reality of Law
• The law is not some mystical force
• Too often the law is thought of as a cure-all for societal ills.
• Also, it has been said that society is ruled by law, not by men.
– On the contrary, society is ruled by men (not women) and that the law serves to legitimate and sometimes obscure this rule.
• The “bottom line” is that wealth and power is highly concentrated in America – about 1% have more than 40% of all the wealth
• It really doesn't matter that the law does not always side with these rulers, for it doesn't have to, as long as profits can be made and the capitalist system survives
• And it is not as if no one else but this small group of capitalists receives the benefits of capitalism, for a lot of other people do as well – just enough to make it seem as if “anyone can become rich” – the classic American myth
• the law favors especially the very wealthy, but it favors enough of the rest of the population to appear to be equal.
• Yet the law clearly has never done a good job supporting the most marginalized sectors of the population: the poor in general, and African-Americans, Native-Americans and other minorities.
• The “majestic equality of law” – it prohibits both the rich and the poor from sleeping under bridges and park benches – Anatole France
• You can’t have equal justice in an unequal society
Crimes in high places
• Look at all the corporate offenders, guilty of robbing the American people of billions of dollars and getting the equivalent of a slap on the wrist, when thousands of poor criminals are serving 20 to life for possessing a small amount of “illegal” substances – more time on average than murderers!
– Yes Bernie Madoff is in jail, but he is the exception that proves the general rule (but his case is not over yet)
• White collar and corporate crime are far more costly than ordinary crime
• About $1.5 trillion each year
• More than 100,000 people die as a result
• This does not include all the lobbyists who successfully bribe members of Congress
– Almost 35,000, double what the number was in 2000 according to the Washington Post
The "Dangerous Classes"
• first used by Charles Loring Brace in his book of 1872 called The Dangerous Classes of New York
• what Marx called the lumpenproletariat
– “thieves and criminals of all kinds, living on the crumbs of society, people without a definite trade, vagabonds, people without a hearth or home.”
– A segment of society that is inevitable under capitalism in that it is “not wholly integrated into the division of labor”
• relative surplus population or reserve army
– more or less chronically unemployed segment of the population, primarily because of mechanization which renders them “redundant” and hence "superfluous" as far as producing profits is concerned.
The Surplus Population
• From this view the the goal of the CJ system is to “manage” this group
• John Irwin – in his 1985 book, he noted that jails function to manage the "rabble" or "underclass" in society
§ people who have been regarded as "disreputable" and "detached" from mainstream society
§ Jonathan Simon’s book about parole (1993) concluded that one of the main functions of the parole system is to "secure" the underclass
§ Tax dollars used to contain crime "in the underclass“
• College grads with cj degrees will also serve this function
Theme of the class
• Golden Rule - "those who have the gold make the rules.“
– And the rules usually do not apply to them
• On any given day, in courtrooms all over the country, we have essentially one class passing judgment on another class.
– Our system is fundamentally a system of class justice.
– It has been this way from the start.