Justice may be blind in the abstract, but those who administer it aren’t. According to The Sentencing Project, America incarcerates over 2.2 million people—more than any other nation. That number has grown by 500 percent in 40 years. But the cause isn’t a growing crime rate; it’s largely changes in sentencing law. Those changes aren’t fair, either: black men serve sentences that are nearly 20 percent longer than similarly-situated white men. Meanwhile, a 2017 study found that federal judges frequently assign fraudsters and white collar criminals shorter sentences than what’s recommended by the sentencing guidelines.
The FBI estimates that white collar crime costs the US economy over $300 billion per year. But practically no one who helped create the 2008 economic crisis went to jail. The criminal justice system has systemic flaws that disproportionately punish the poor and reward the rich.
A bevy of factors play into this disparity, but mainly manifest themselves in discrepancies in bail, discrepancies in sentencing, and discrepancies in incarceration.
In July of 2015, Sandra Bland was driving in her car when State Trooper Brian Encinia accelerated up behind her. He approached so quickly and so close that Bland believed him to be on an emergency call. She changed lanes to give him the right of way. Encinia then pulled her over for failing to use her turn signal.
Encinia had a history of performing pretextual traffic stops, issuing over 1,600 minor tickets in less than a year. When he pulled over Bland, he treated her like a criminal, eventually dragging her from the car, threatening her with a taser, and slamming her head into the ground. Bland informed Encinia that she was epileptic, to which Encinia replied, “Good.” Encinia claims that Bland kicked in his general direction. He charged her with assaulting a police officer, and took her to jail.
Bail was set at $5,000. While Bland’s family worked to secure the 10 percent of that which was needed to secure her release, Bland spent three days in jail, and, on the third day, she hung herself in her cell. An autopsy revealed abrasions on her back from her encounter with Encinia, as well as over 25 healing cuts on her left forearm, indications of suicidal behavior that predated her arrest.
In October of 2001, Robert Durst was charged with the murder and dismemberment of his neighbor. Bail was set at $300,000. Durst paid, and was released. A week later, he didn’t show up for a hearing and became listed as a fugitive. Two months later, and several states away, he was arrested for shoplifting. He had $500 in cash on his person. His rental car contained another $37,000 in cash, two guns, and the driver’s license of the murder victim. Durst proceeded to hire John Waldron, one of Pennsylvania’s “Super Lawyers.” Even though Durst admitted to dismembering the victim’s body, he was acquitted of the murder.
Both cases took place in Texas, but the similarities end there. The disparities are black and white: Bland, a summer program associate at a small university, was poor, and Durst, the scion of one of New York’s wealthiest real estate families, was obscenely rich; Bland was African American, Durst was Caucasian; Bland suffered, while Durst was rewarded disproportionately. It’s a formula that repeats itself far too often in the US criminal justice system.
Paul Carter grew up fatherless in what he refers to as the ghetto of New Orleans. He struggled with heroin addiction for several years, but never received treatment. In 1997, when he was 29 years old, two police officers approached him and searched him while he stood on a street corner. In Carter’s pocket, the officers found a syringe and a bottle cap. The syringe was clean. In the bottle cap, they found trace amounts of heroin residue that even the state prosecutors would call “too insignificant to weigh.” Carter was convicted of possession of heroin and initially sentenced to ten years in prison. A prosecutor then won a motion to reconsider the sentence, and Carter was given life without parole. This egregious sentence was given due to two prior convictions on Carter’s record, both nonviolent: escape (at age 18) and possession of stolen property (at age 21).
Paul Manafort, the former campaign manager of President Drumpf, made a living lobbying for some of the world’s most unsavory characters, earning his consulting firm the nickname The Torturers’ Lobby. The National Anti-Corruption Bureau has records of Manafort receiving over $12.7 million in cash payments from a demonstrably corrupt and deposed former Ukrainian president who is now under Moscow’s protection.
As part of Robert Mueller’s investigation into Russian interference in 2016 election, Manafort was indicted and charged with engaging in a conspiracy against the United States, engaging in a conspiracy to launder money, making false and misleading statements. Prosecutors further claimed he laundered some $18 million for pro-Russian parties. His criminal defense case cost more than most defendants make in their entire lives. Facing a recommended 19 to 24 years, Manafort’s team of lawyers got him a sentence of less than four years.
Cook County Jail is one of the largest in the US, housing over 8,000 inmates. Of those inmates, over 70 percent are black. In total, over a third of the population of Cook County Jail suffers from psychological disorders, making it, in effect, the largest mental hospital in the nation.
A 2008 inquiry by the US Department of Justice into abuses at the jail found that in many cases inmates were not given their medications for weeks. Physical abuse between inmates, and even administered by guards, was rampant. Not a single department of the jail met federal standards, and the federal report found systemic violations of the constitutional rights of inmates.
It has taken ten years for a class action lawsuit (one limited strictly to the lack of dental care at the jail) to be decided in the inmates’ favor. After Cook County Jail pays over $2.2 million in legal fees, some 18,300 inmates who suffered from the lack of dental care in the jail can now expect a $100 payment.
Federal Correctional Institute Otisville is a medium-security prison and work camp 70 miles northwest of New York City. It has approximately 700 inmates. It’s where lawyers for white collar criminals like Bernie Madoff request that their clients be sent. In 2009, Forbes listed it as one of America’s “cushiest” prisons. A 2012 report by Business Insider said that the most combative incident at Otisville that year had been when inmates disagreed about who should be kicked off of a recently viewed episode of American Idol.
Otisville also has several amenities to help pass the time, from bocce ball, to exercise equipment, to a handball court. Otisville has seen some star-studded white collar guests over the years: Billy McFarland (of the Fyre Festival fiasco); Michael Cohen (President Drumpf’s former lawyer); and Michael “The Situation” Sorrentino (of Jersey Shore infamy).
Systemic injustices in the American criminal justice system prevent it from being fixed overnight. There are still tangible steps that can be taken to reduce its unequal treatment of poor citizens versus rich citizens.
First, the federal government needs to begin prosecuting more white collar crimes, as opposed to deprioritizing it. Under the Drumpf Administration, white collar cases have dropped to a 20-year low and associated fines have gone down by 90 percent. To make the system fair doesn’t necessarily require punishing the rich more, though. It also requires punishing the poor less.
Bail amounts need to be set in a proportional and fair manner that matches the context and means of the accused. Harvey Weinstein’s bail of $1 million (recently upped to $5 million for repeated violations) might be easier for him to pay than, say, Sandra Bland’s $5,000 bail. Proportionality and context matters. A bail reform package was introduced, and rejected, by California’s state legislature. It would’ve linked pre-trial bail to risk, rather than wealth. California and other states would be wise to reconsider.
Sentencing guidelines also have to change. Draconian sentences for nonviolent crimes don’t perform justice; they subvert it. No human being should be serving life without parole for nonviolent crimes like possession of untraceable amounts of drug residue or for stealing a jacket. By the same token, white collar crimes should carry sentencing guidelines that incur more than a slap on the hand.
Reforming the prison system is no easy feat, but the direction it needs to go is clear: there shouldn’t be different prisons for people based on their income and compassion should go hand-in-hand with justice. Consider Norway, home to what’s been called the world’s nicest prison. Inmates are given freedoms unheard of in the US Department of Corrections.
The main difference here is in goal: American prisons are generally designed to punish and contain, while Norwegian prisons are designed to reform. The former creates long-lasting traumas and unaddressed mental health issues, while the latter results in more contributing members of society. Of note: American recidivism in 29 states is twice as high as it is in Norway, which has the lowest reoffending rate in Scandinavia.
Nelson Mandela once said: “No one truly knows a nation until one has been inside its jails.” In the case of the US, one would have to visit at least two, both a traditional jail and a white collar jail, before drawing a final conclusion.
Matt Zbrog is a writer and researcher from Southern California. Since 2018, he’s written extensively about the increasing digitization of investigations, the growing importance of forensic science, and emerging areas of investigative practice like open source intelligence (OSINT) and blockchain forensics. His writing and research are focused on learning from those who know the subject best, including leaders and subject matter specialists from the Association of Certified Fraud Examiners (ACFE) and the American Academy of Forensic Science (AAFS). As part of the Big Employers in Forensics series, Matt has conducted detailed interviews with forensic experts at the ATF, DEA, FBI, and NCIS.