Ought there be equal justice for all?

March 29, 2019Jake DiMare

There are two types of people in this world: Those that think there are two types of people in this world, and everybody else.  In his post entitled: “Seaton: Justice or Jussie In The System,” Chris Seaton over at Simple Justice let us all know which way he swings.

Were you outraged when the Cook County State’s Attorney’s office announced they dropped 16 counts of felony disorderly conduct against “Empire” actor Jussie Smollett? Or did you shrug and move on with your day? Your answer to that question is going to say a lot about how you really view our modern criminal justice system.

Sadly, he never gets around to explaining what the lot is, but I digress.

The post goes on to explain Justin Smollett’s story for the benefit of the truly uninformed and then highlights a few of the outraged responses to Smollett’s sweetheart deal before making his ultimate point.

Let’s assume for a moment Smollett managed to leverage his familiarity with the Obamas to make all his criminal woes go away. To quote my mean-ass editor, “Sit down. I have something to tell you, and it’s going to make you sad.” This outcome is rather common if you’re wealthy, privileged, or carry the benefit of status. There are friends of connected families out there daily making phone calls to prosecutors asking for leniency on charges. If you don’t believe that, you’re delusional.

What I can’t believe is that a lawyer is so casually OK with this scenario. Just imagine all those sweet, sweet billable hours lost to politically connected, high-profile defendants! He continues.

Harsher punishment or more scrutiny on Jussie Smollett doesn’t necessarily serve justice. What it almost guarantees is the next gay black man charged by the Cook County State Attorney’s Office won’t see the same level of compassion. Kim Foxx is on notice at this point she didn’t punish a celebrity enough for an alleged hate crime hoax. What makes you think her attorneys won’t push for the harshest punishments possible to avoid blowback from the Mayor, the Police Superintendent, and the press?

Many people made the same or similar arguments when Paul Manafort was given a significant downward departure after being found guilty of various crimes in the United States District Court for the Eastern District of Virginia before U.S. District Judge T.S. Ellis III.

At the time there was quite strident criticism for those of us who were offended by the leniency Manafort received. This pattern was repeated back when Brock Turner got a laughably short sentence for sexually assaulting an unconscious woman behind a dumpster at Stanford University. Many people were outraged about the privilege; many others were outraged about the outrage.

The argument Chris made today and many have made in the past is salient: The harshest adverse effects of criminal justice in the US impacts poor people first and worst -an issue that is arguably far more harmful to faith in our institutions and social cohesion than rich people getting off easy.

However, this argument, limited in its scope, misses two other very salient points.

First, we know one of the legislative purposes for enacting mandatory minimum sentences, well known to have a draconian and disproportionate effect on poor & minority communities, was to “control judicial discretion over certain sentencing decisions.” I think Chris and other critics of the outrage suffer from a failure to imagine further legislative change, expanding mandatory minimums or shrinking prosecutorial discretion because of a public perception the latitude presently afforded is being abused.

Second, by the law of self-preservation, if wealthy and influential defendants believe they will be treated the same as any other if they are ever standing in front of a judge, this could seriously change the calculation on how harsh mandatory minimums and sentencing guidelines should be. In short: Give the powerful some skin in the game, and it could change the game.

The point is: There are many more than two ways to look at this issue. There is nothing intellectually dishonest about supporting an end to incarceration policies that disproportionately impact the poor while simultaneously supporting ‘equal justice’ for wealthy and influential criminals, even if that means harsher penalties for some.

Lest you think this is my idea, Lady Justice has been depicted wearing a blindfold representing impartiality since the 16th Century. For over half a millennium society has aspired to apply justice without regard to wealth, power, or influence.

Simply stating ‘this is the way it is, deal with it,’ is not good enough. When society doesn’t like what’s happening we demand that something must be done. Mandatory minimum sentencing was something. We don’t need more solutions like that.


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