May 16, 2019

Brennan Center for Justice Op-Ed: End the Two-Tiered System of Justice

Senator Warren contributed an essay to the Brennan Center's book entitled, "Ending Mass Incarceration: Ideas from Today's Leaders"

Four words are etched above the doors to the Supreme Court: "Equal Justice Under Law." That simple principle should be the foundation of our criminal justice system. But the hard truth is that America has two separate and very unequal justice systems. The first is a justice system exclusively for the wealthy and the well connected. For decades, Washington has let powerful corporate executives escape accountability, even when they scam millions of Americans or crash the U.S. economy.

Take the 2008 financial crisis, when brazen risk-taking and illegal behavior cost the American economy $23 trillion and robbed millions of Americans of their homes, jobs, and savings. A decade later, not a single big bank CEO has gone to jail, and prosecutors have become even more lenient on corporate criminals. My office recently released a new report highlighting that white-collar crime enforcement activity has hit a 20-year low since President Trump took office.

The second criminal justice system - the system for everyone else - looks very different. In that system, "tough on crime" is the catchphrase of choice. Low-income individuals end up with criminal records or jail time because they can't afford bail or hefty fines and fees. Young people who commit low-level, nonviolent crimes spend too many years behind bars. Struggling parents, domestic violence survivors, opioid users, and individuals with mental illness are hauled off to jail without treatment or assistance. And after they return to their communities, too many former inmates are locked out of jobs, housing, and any chance to rebuild their lives and support their families.

That second criminal justice system disproportionately targets and punishes black and brown Americans. African Americans account for only 12 percent of adults in the United States, but they make up 33 percent of the incarcerated population. And the data show that for exactly the same crimes, black people are more likely to be arrested, prosecuted, wrongfully convicted, and sentenced more harshly than their white counterparts.

Terri Minor Spencer experienced that second criminal justice system up close and personal. At age 29, Terri was arrested and charged with possession of and conspiracy to distribute crack cocaine. Due to mandatory minimums and discriminatory sentencing requirements that treated offenses involving crack cocaine more harshly than offenses involving powder cocaine, Terri was facing a life sentence if convicted. Instead, she accepted a plea deal that landed her a 13-year prison sentence.

Over the course of the next 13 years, Terri was placed in facilities hundreds of miles from her home and family. She says she got to see her family only once while she was incarcerated. She didn't get to see her daughter grow up, and she missed the births of her grandchildren.

Since her release, Terri says she has dedicated her life to saving others from what she went through. She founded a nonprofit group, got involved with her church, and began volunteering in her community. She even ran for local office - and won.

Terri survived our deeply rigged criminal justice system, but there are far too many people just like Terri sitting in state and federal prisons today.

The dream of equal justice will become a reality only if we reform our criminal justice system, top to bottom.

Start by holding corporate criminals accountable. Last year, on the 10th anniversary of the collapse of Bear Stearns, which kicked off the financial crisis, I introduced the Ending Too Big to Jail Act, a bill that would make it easier to bring criminal charges against bank executives whose organizations defraud consumers. In April, I introduced the Corporate Executive Accountability Act, legislation that would make executives of big corporations criminally liable if their companies commit crimes, harms large numbers of people through civil violations, or commit a new violation while under the supervision of the court or a regulator for a previous violation. We should pass these bills, and more like them.

Getting serious about corporate crime is only one part of the solution. It's also time to change the way our criminal justice system treats those without money and power. Last year Congress passed the FIRST STEP Act, a bipartisan prison and sentencing reform bill that includes many of the reforms I've championed, like banning the practice of shackling pregnant prisoners, requiring federal prisons to provide feminine hygiene products for free, and taking steps to keep moms like Terri closer to their families.

As important as these steps are, there's so much more to do. We can start by ending mandatory minimums for individuals - the cruel sentencing requirements that could have caused Terri to be sent to jail for life.

We also need to end the practice of jailing people because they can't afford bail or other fines and fees. We should legalize marijuana and wipe clean the records of those who have been unjustly jailed for minor marijuana crimes; end private prisons and the profit incentives that pervert the goal of our justice system; provide more help for people struggling with domestic abuse, substance use disorders, and mental illness; and end the practice of branding the formerly incarcerated with a scarlet letter that closes doors to education, employment, and opportunity.

Reforming our criminal justice system won't be easy. It will require fighting for a comprehensive group of proposals that will reorient our criminal justice system toward meaningful change. Yes, it will be a tough fight, but it is the moral obligation of every lawmaker to commit to building a justice system that lives up to those four simple words written above door to the Supreme Court.


By:  Senator Elizabeth Warren
Source: Brennan Center for Justice