I can still see myself standing in my office. I was gathering my things as I prepared to go on leave with the birth of my son that following day. Although my excitement and anxiety provided a joyous distraction, my focus was elsewhere. My father was in New York, awaiting the verdict in his trial. We were all waiting for the verdict yet he was probably waiting for judgment about his future. Having lived under the stress and anxiety of my father facing jail time for many years (including two prior trials that had ended with hung juries) and having lived under the continual fear that our collective lives could forever change in an instant, I sat almost paralyzed by my trepidation. I couldn’t help but think about a recent conversation with my father, where he asked me to help out my Mom if he was hauled off to jail without being able to tie up loose ends. Deep in these thoughts and unable to focus on anything, my phone rang. He had been found guilty on all counts and was convinced that he had not only been “screwed” but that his life was over.
While an injustice did take place, his life was not over. We have made it though these circumstances because of family, love, and privilege. Yes, privilege. My experience with an injustice, with a prosecutor who was more focused on creating a factual scenario that fit his preconceived conclusions, with a criminal justice system more focused on wins than truth or justice, with a bureaucracy focused on justifying its bloated budgets and state power than fostering peace and safety, and individuals more concerned with personal interests than the families and communities that their actions impacted, taught me about the power of privilege.
My dad had the financial privilege to be able to hire a top-notch lawyer; he had a house that could be used to offset the costs of a trial. Unlike the vast majority of people swept up by an unforgiving criminal justice system, he was able to go to trial (multiple times as it turned out). While he was not ultimately successful in blunting the power of the government (more than 90% of prosecutions by the federal government result in convictions), his lawyer’s efforts to highlight the injustice that was being done, surely played a role in keeping him out of prison. While clearly an injustice, the real-life meaning of whiteness, of class privilege, is hard to deny when thinking about our entire experiences with the criminal justice system.
Yes, my family faced what we knew was an injustice. Yet, as a middle-class white family from Los Angeles, we learned that we were (to a degree) exempt from many of the injustices that befall those who must fight the system without the benefits and privileges of being white and middle class. My father was able to contest a matter three thousand miles from his home. How many individuals can carry on a fight over many years at that kind of distance including numerous cross-country flights, weeks of living in a hotel, the cost of transporting witnesses across country and related financial burdens? Anyone without the financial resources to fight would have no choice but to simply concede defeat at the outset.
My father was able to hire an attorney. Access to a private attorney as opposed to a public defender or assigned counsel is in many ways determinative of one’s fate. According to Paul Rubin and Joanna Shepherd, economic professors at Emory University, and Morris B. Hoffman, a trial judge, “the average sentence with serious cases was almost three years longer than the average for clients of private attorneys.” The mere fact that 90-95% of criminal cases never go to trial, whereas my father was able to standup before the world and announce his innocence, is evidence of both our privileges and the injustice of the criminal justice system.
Our experiences with the criminal justice point to the harsh realities and injustices that plague this nation. While my father, since he was not sentenced to prison, retained his right to vote, many millions of Americans, have been disenfranchised, unable to participate in our democracy. The majority of those disenfranchised are African American and Latino. If incarceration rates continue, 30 percent of the next generation of African American men will be stripped of the right to vote. If we look at specific states, the situation is unfathomable right now. Thirty one percent of African American men in Alabama and Florida have lost the ability to participate in Democracy with their vote. In 6 states, as many as 1 and 4 black men have been permanently disenfranchised. A total of 1.4 million black men (13%) are unable to vote. They have paid their debt to society yet are forced to continue to pay in the form of their rights.
I often think about these experiences when people deploy their race denial card by noting how a particular tragedy or injustice was endured by a member of a dominant/privileged group. In other words, when faced with information (a single case or studies) about discrimination in employment, suspension rates, inequality in criminal justice system, racism within housing industry or any number of spaces, people so often highlight examples of injustice. In our case, they would say, “injustice transcends race.” While so far from the truth given the ways that racism operates at every level of the criminal justice system, my experiences with that system highlighted the very material ways that race matters.
Race matters because the vast majority of people swept away by our inefficient, unchecked and, at times, overzealous criminal justice system are black and Latino. It matters because there are more blacks and Latinos locked up in prison than attending college. It matters because close to seventy percent of those facing life sentences are black and Latino. The impact of race is clear when we confront the reality that over half of those people wrongly incarcerated are African American and understand the segregated nature of the war on drugs. It matters because as a middle-class white family we were able to mortgage the future to fight. While the privileges associated with being middle class did not afford us the ability to fight the federal government on an even playing field, they certainly afforded us a fighting chance. For those who lack such privilege, they have virtually no chance whatsoever of prevailing against the overwhelming advantages of the government.
Consequently, we get many, many situations like that of Brian Banks, a former football player at Long Beach Poly High School who, just before the start of his senior year, was accused of rape and kidnapping. Although maintaining his innocence, facing 41 years in prison, he agreed to plead guilty in exchange for a shorter sentence. He served five years in prison, was paroled in 2007, and faced a lifetime as a felon and registered sex offender. Amazingly, the “victim” recently came forward and recanted her story. As a result, Banks’ conviction has been expunged and he has been exonerated. Had Banks had the privileges that would have afforded him the ability to mount a rigorous defense at the time, perhaps he would not have lost nearly a decade of his life, including five years in prison, for a crime he did not commit. We do not know what would have been the result had Banks had the ability to fight his case on a fairly even playing field. We do know that, as the system currently exists, the playing field is overwhelming stacked in favor of the government and the results, particularly for those without financial means, are all too predictable.
To me, these experiences taught me to think about privilege, taught me about a criminal justice system and its far-reaching power. I still remember traveling to New York to the federal courthouse in Long Island for my father’s trial. A massive complex, the courthouse was virtually empty, highlighting: (1) the economics of a criminal justice system that needs arrests, prosecutions, and incarceration to justify its bloated existence. “It you build, they will come.” (2) Yet, the empty courtrooms highlighted the inability of others swept away in America’s prison nation to defend themselves, forced to plea bargain in the face of unforgiving and immensely powerful state. The realities of racism and class discrimination are on full display through my experiences because we were the exception, because the privileges of class, and in whiteness.
More than anything else, our experiences highlighted the callousness of a criminal justice system and society that sees mass incarceration as righteous and healthy. It reveals a system and callous prison culture with little care for families and communities, a system that is concerned more with convictions and the illusion of law and order.