"All are equal before the law and are entitled without any discrimination to equal protection of the law." Article 7 of the Universal Declaration of Human Rights
“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Anatole France (translation)
Should equality before the law be our idealized model of criminal justice. The purpose of law, broadly speaking, is to regulate and codify the ways in which we interact with each other in society. By codifying law, we make it clear which actions are and are not permitted. Implicit in this is that laws should, more or less, apply equally to everyone, otherwise the law becomes merely a tool by which the powerful control society. That the law does not apply equally to everyone in most criminal justice systems is, I believe, an unavoidable conclusion, though the degree to which it is unequal is certainly up for debate. However, the degree to which the law is equal is not the subject of this post. The question at hand is rather whether equality should be one of the prime objectives of the justice system. I will begin by exploring possible definitions of what it means for the justice system to treat people equally, and then I shall make a case for a justice system that is not focused on equality.
What does it mean to be 'equal before the law'? The most intuitive definition, to my mind, is process-equality, which can essentially be defined as follows: given identical evidence, they would be treated identically. 'Irrelevant factors'* such as age, wealth, skin colour, and gender would not have any impact on how an individual is judged. By this conception, law is an impersonal arbitrator that focuses on categorizing events and ensuring that there is consistency between how events are dealt with.
A second definition of equality that can be applied to criminal justice is equality of outcomes. Equality of outcomes focuses on categories of people rather than categories of events to evaluate whether people are 'equal before the law'. For example, it could be claimed that the ethnicity of prison populations should be broadly representative of the demographics of the population. It is important to differentiate here between using outcomes as evidence for or against process-equality, and directly equating equality with outcomes. It seems probable to me that very few people think that equality of outcomes directly represents equality in the justice system – it is widely accepted that the job of the justice system to deal with events, and, given specific anecdotes, very few people would support explicitly apportioning criminal justice based on features such as race or sex (e.g. giving someone a lighter sentence because of their race).
What arguments can be made against the justice system maximizing equality? I will examine equality of outcomes first. The problem with maximizing equality of outcomes is that it is really just a proxy measure for process-equality. The assumption of those who seek to measure the success of the justice system via outcomes is that if the justice system is treating people equally, then, along certain dimensions of identity (e.g. race, sexual orientation), groups should not be over- or under- represented in the system (amongst other numerical indicators). The first problem with this is that the criminal justice system cannot be held wholly responsible for its own outputs. If, as is the case in many countries, minority ethnicity’s are over-represented in the justice system, it is entirely plausible that society is the primary culprit, to give an example. The second problem is that there are no fixed dimensions of identity on which the justice system can be assessed. Consider how hate-crime legislation has developed in the UK. Hate-crime legislation in the UK singles out certain groups for additional legal protection by punishing those who specifically target members of those groups. The process by which specific groups gain protection thus far has essentially been as follows: a heinous crime is committed against a member of a group, the community mobilizes and demands protection, and then the UK government adds a new type of hate crime. I am not saying it is bad that these groups receive this protection (though I am not a huge fan of UK hate crime legislation), I am just pointing out that the groups who are considered important to protect change over time. Consider also the fact that men make up the vast majority of most country’s prison populations, but this is not usually attributed to the criminal justice system being biased against men. Equality is an evolving social conversation, and I expect there is a strong tendency for the use of outcome-statistics to track societal perceptions on which groups are and are not in need of protection, rather than for outcome statistics to cause social perceptions. The final problem with outcome statistics is that they have a tendency to 'wag the dog' of public policy, meaning that efforts are often aimed at making outcomes appear better rather than at improving processes.
So much for outcome equality. But what of process equality? How can it possibly be bad to have equality of process? The particular facet of process equality that I want to critique is the way in which people and events in the justice system are categorized. The justice system has a clear script: identify if someone committed a crime against someone else, categorize the crime that was committed, and then punish the perpetrator based on the crime they committed. This has a number of negative consequences. First, the process often fails to capture the complexity of events, because of the need for events to align with the justice system's definitions. Consider the differences in minimum sentencing for manslaughter, second degree murder, and first degree murder (0,10, and 25 years respectively, link). How a murder-event is classified has significant repercussions for perpetrators, but having only three categories does not allow for much gradation (though, of course, judges and juries allow for greater nuance). Second, the ridged processes of the justice system may result in the neglect of the desires of those involved, particularly in regards to the desires of the victims. Victims usually have little say in the way in which a case proceeds or in the punishment that is meted out. Equality of punishment rules out the autonomy of victims. Third, as the quote from Antatole France at the beginning of the post attests, being equally law-bound does not entail that people are being treated equally. When justice is centralized, there is a significant risk that those in power will exert their influence such that those acts which are most punishable will be those of the disadvantaged. Consider the notorious example of how crack cocaine possession has been and continues to be punished more severely than powder cocaine in the United States, despite the fact that there is no significant chemical difference. However, the demographics of those who use the two substances are different, with crack cocaine being used more frequently by poor black people (link).
What could an alternative to our criminal justice system possibly look like? One solution to address the problems I have explored would be to localize justice. Rather than having a central system which treats everyone equally, have more localized processes which emphasize participation over system. Place greater power in the hands of victims to engage with those who have harmed them. At the same time, allow perpetrators to give an account of themselves. Allow greater emphasis on restitution. Transition the focus away from the national outputs of the justice system onto local discussions of norms. These measures would hopefully allow for nuanced sentences that focus on the perpetrator repaying their debt to their victim, encouraging the development and propagation of norms at a local level while decreasing the degree to which powerful interests control law.
There are innumerable issues that can be pointed out in my rough sketch. What if victims punish too harshly? What if victims do not wish to confront those who have harmed them? Won’t this promote a kind of criminal justice postal-code lottery? Wouldn’t local powers simply dominate these devolved courts? These are all reasonable questions. My specific goal for this post was to articulate harms that emphasizing equality can generate, and I have provided a sketch of an alternative system that would mitigate these harms. The new system would have different problems.
To summarize: this post looked at two types of equality in the criminal justice system – equality in process, and equality of outcomes. Equality of outcomes is an imperfect proxy for equality of process. Core problems with equality of process include: fitting complex events into categories, not addressing the needs and desires of victims, and applying laws equally to disparate people. One potential way that these problems could be mitigated is by devolving and decentralizing justice, placing greater emphasis on local resolution.
*Exactly which factors are and are not relevant is complicated, but that is a conversation for another time.
Comments