Rich judging poor, whites judging Blacks, and men judging women: How so-called ‘justice’ is blind to privilege

I have numerous objections to what passes for ‘justice’ in the United States. Possibly the most important is that the system strongly favors the wealthy, with the sorts of offenses they more often commit more often treated as ‘civil’ offenses or as misdemeanors, often subject only to fines, while the offenses the poor commit more often are more often treated as felonies, with mandatory prison time. The poor—and especially people of color—are discriminated at every stage of the system, from who is suspected, to who is investigated, to who is arrested, to who is charged, to who is convicted, to who is sentenced how harshly.[1] It seems that police (and college students) “were far more likely to overestimate the ages of young black boys than young white boys; they were also less likely to view black children as innocent.” [2] In Miami Gardens, police arrested a man for trespassing at his place of employment not once or twice, but sixty-two times.[3] New York City’s ‘Stop and Frisk’ program is blatantly racist and has been found to be so in a court of law.[4] The anecdotal evidence of police shooting or otherwise abusing people of color far exceeds my capacity to accumulate,[5] and I have previously dealt with this issue in a posting on the Trayvon Martin case,[6], and in a research journal entry about some graffiti I found in Oakland, California.[8] The bulk of my analysis has been in that research journal entry, in which I wrote (with the footnotes integrated with those in this posting):

The role of police in developed society is problematic because it invests lawful authority paired with authorization to use even lethal force to compel compliance. That authorization complicated not only [Johannes] Mehserle’s case [the Oscar Grant shooting],[9] but another case which arose from the Danziger Bridge shootings during the Hurricane Katrina disaster.[10] Indeed it so colors any officer’s actions that in effect, the credible threat of lethal force is their only tool for resolving any conflict. Moreover, they act in service of a principle of “preserving law and order,” where law is passed by an elite consisting overwhelmingly of wealthy white males to apply to everyone else; where “order” refers to the status quo, meaning the social hierarchy in its present form; and where “justice” is reduced to the enforcement of law.

Yet, in effect, and particularly for residents in neighborhoods like the one I traversed today in Oakland, police bear a strong resemblance to the gangs they pursue. Gangs and police both operate under rigid hierarchies, rigid rules, and a sense of impunity (which for police is offended in the prosecution of cases like the Danziger Bridge shootings in New Orleans[11] and the Grant shooting in Oakland,[12] and, as well, in the reaction to the arrest of Harvard Professor Henry Louis Gates, Jr., at his home in Cambridge,[13] which ultimately led to a trip for both Gates and the officer concerned to the White House for a beer and a failed attempt at reconciliation.[14] Police and gangs also both identify themselves using particular colors and valorize their own sense of control over others (failure to comply with an officer is often labeled “disorderly conduct” the offense Gates was charged with,[15] but it was also another officer’s perception that Grant had interfered with a police investigation at the scene that led to his killing[16]).[17]

There’s another aspect to this that I’ve mostly left implicit, which is that the criminal injustice system invests enormous power in some people to (pre)judge and discipline others, beginning with those mostly white, wealthy men who pass the laws in the first place, but extending right on down to police officers and, as Philip Zimbardo horrifically documents, corrections officers.[18] That was on display again Tuesday as the Supreme Court heard arguments in Sebelius v. Hobby Lobby Stores, Inc.

In brief, “Hobby Lobby, a chain of crafts stores, and Conestoga Wood Specialties, which makes furniture,” object on religious grounds to complying with the Affordable Care Act requirement that the health insurance it provides for its employees cover contraception, importantly including intrauterine devices (IUDs) that some believe induce abortion. Proponents of the regulation note the importance of women’s health and that if the companies are exempted  from compliance with this regulation, they could claim a religious exemption to other regulations and laws—like taxes—that they object to. In an era of Citizens United, the case also highlights ‘corporate personhood’, in which corporations are held to have the—in this case, religious—rights of human beings.[19] But as Justice Sonia Sotomayor told the lawyer for Hobby Lobby and Conestoga Wood, “You picked great plaintiffs,”[20] and hazarding an always dangerous guess on how the Court will rule, it looks like the outcome may well be 6-3 in favor of those plaintiffs. The three dissenting justices will be the women on the court, outvoted by conservative or conservative-leaning men.[21]

There is, of course, a history of men asserting control over women’s bodies, and I discuss some of that history in my second qualifying essay for Ph.D. candidacy (at this writing at the second draft). I quote this at length:

In general, it is hard not to notice that these are men seeking political power, diminishing the violence of rape, promising to legislate women’s bodies, and who seem obsessed with sex. I leave the psychology of this for others. But it is worth noting that abortion, previously often intentionally confounded with treatment for delayed menstrual periods, and until the 1870s, was entirely legal prior to “quickening,” that is, when the pregnant woman felt—or, one might presume, admitted feeling—the fetus moving in her womb (Kerber & De Hart, 2004). It seems not to have been an issue until

A high proportion of the women whose abortions contributed to the soaring incidence of that practice in the United States between 1840 and 1880 appeared to be married, native-born, Protestant women, frequently of middle- or upper-class status. (Kerber & De Hart, 2004, p. 188)

It was in the 1870s that Anthony Comstock led “a massive anti-obscenity campaign, . . . [and, with his assistants] aided in the indictment of 55 persons . . . identified as abortionists” (Kerber & De Hart, 2004, pp. 188-189). This seems to have indeed been partly about preserving traditional gender roles (Kerber & De Hart), but also, as Deborah Rhode (1993) puts it, “the decline in fertility rates among the ‘better classes’ during the late nineteenth and early twentieth centuries sparked fears of ‘race suicide’” (p. 642).

How ‘race suicide’? Immigration was bringing more (darker-skinned, Catholic, and non-English speaking) southern and eastern Europeans to the country. The 15th amendment, one of three passed in the wake of the Civil War, granted the right to vote to all men, including those Black slaves freed by the 13th amendment. Finally, the 14th amendment sought, among other things, to ensure that all men had equal protection under and access to due process of law (Boyer et al., 2005). White Protestant men feared losing control of the country, they sought to ensure that white women fulfilled their roles as mothers (Kerber & De Hart, 2004), and it is at this very moment in history when massive Christian revivals prominently appeared (Rhode, 1993) and when the Comstock Act, banning contraception and so-called “obscenity” from the land, came into force (Heins, 2001/2007; Rubin, 1984).

The argument since has not progressed far. When, in 1913, “[t]he alarming prevalence of prostitution and venereal disease was the simplest and clearest proof that silence did not protect innocence” (Moran, 1996, p. 494), reformers sought to introduce “sex hygiene education” to Chicago public schools (Moran). The resulting—and furious—backlash would not be much more out place today than it was then:

[W]hen [reformers] questioned the inherited image of the innocent child, when they attempted to usurp parental authority, and when they arrogated to themselves the proper functions of religion, it seemed they had gone too far. . . . “Smut smutches,” commented one acerbic editorialist, and he denied that “smut” was any less dangerous in the classroom than it was in “the cheap theatre, in the department store . . . or on the street.” In the opponents’ opinion, children were indeed tabulae rasae, and sex information would mar their minds just as surely as exposure to tuberculosis would destroy their bodies. . . . Gov. E. F. Dunne of Illinois vetoed sex instruction even for undergraduates at the University of Illinois, in fear that it “may create, and probably will create, in their young minds a prurient curiosity which will induce, rather than suppress, immorality and unchastity.” . . . If instruction in sex hygiene aroused a curiosity that had not previously existed, asked opponents, then how was it protecting the innocent youth? “Safety,” remonstrated a Jesuit educator, “lies in diverting the attention from sex details.” (Moran, 1996, p. 502)[22]

Though in an ideal world, men and women would be equally concerned with access to contraception, in the world we have, it is women who disproportionately bear the consequences of pregnancy, because 1) they carry the child and bear the health risks of pregnancy, and 2) men may often much more easily escape the responsibilities of fatherhood. Hence the issue of how our society deals with sexuality becomes a feminist issue.

There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power.[23]

A court that was more concerned about optics might pause before issuing a ruling in favor of the plaintiffs in this case. But this is also the court that handed down the Citizens United ruling.

  1. [1]Marc Ambinder, “The Full Wright Transcript,” Atlantic, April 28, 2008,; Steven E. Barkan, Criminology: A Sociological Understanding, 3rd ed. (Upper Saddle River, NJ: Pearson Prentice Hall, 2006); Angela Y. Davis, Abolition Democracy: Beyond Empire, Prisons, and Torture (New York: Seven Stories, 2005); Democracy Now!, “From Dorner to Waco to MOVE Bombing, A Look at Growing Militarization of Domestic Policing,” February 15, 2013,; Democracy Now!, “Cornel West: Obama’s Response to Trayvon Martin Case Belies Failure to Challenge ‘New Jim Crow’,” July 22, 2013,; Democracy Now! “Freed Ex-Black Panther Marshall “Eddie” Conway on 44 Years in Prison & FBI Surveillance,” March 5, 2014,; Courtney Garcia, “Report finds discrimination rampant in criminal justice, 1 in 3 black males will go to prison,” Grio, October 18, 2013,; Fredrick Harris, “Policing the Police,” review of Black against Empire: The History and Politics of the Black Panther Party, by Joshua Bloom and Waldo Martin, London Review of Books 35, no. 12 (June 20, 2013),;  Crystal Hayes, “Coping with the Zimmerman verdict, through letters from my incarcerated father,” Grio, July 20, 2013,; Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004); Lynn Sweet, “Wright at the National Press Club, April 28, 2008. Transcript,” Chicago Sun-Times, April 28, 2008,
  2. [2]Katie McDonough, “Study: Police see black children as less innocent and less young than white children,” Salon, March 11, 2014,
  3. [3]Julie K. Brown, “In Miami Gardens, store video catches cops in the act,” Miami Herald, November 22, 2013,; Lance Dixon and Julie Brown, “Miami Gardens defends cops accused of harassing, rousting,” Miami Herald, November 22, 2013,; David Drumm, “Miami Gardens Police Arrest Man For Trespassing At His Place Of Employment 62 Times,”, November 23, 2013,; Melanie Eversley, “Miami-area police agency charged with racial profiling,” USA Today, November 22, 2013,; Natasha Lennard, “Store videos capture a year of police racism,” Salon, November 22, 2013,
  4. [4]Associated Press, “Judge: N.Y.’s stop-frisk crossed line,” SFGate, January 8, 2013,; Ryan Devereaux, “‘We Were Handcuffing Kids For No Reason’: Stop-And-Frisk Goes On Trial,” Nation, March 28, 2013,; Joseph Goldstein, “Recording Points to Race Factor in Stops by New York Police,” New York Times, March 21, 2013,; Joseph Goldstein, “Judge Rejects New York’s Stop-and-Frisk Policy,” New York Times, August 12, 2013,; Jennifer Gonnerman, “Officer Serrano’s Hidden Camera,” New York, May 19, 2013,; Natasha Lennard, “Stop-and-frisk program in Bronx ruled unconstitutional,” Salon, January 9, 2013,; Barack Obama, “Transcript: Obama Speaks of Verdict Through the Prism of African-American Experience,” New York Times, July 19, 2013,; Justin Peters, “The Heroic New York City Cop Who’s Trying to Stop Stop-and-Frisk,” Slate, May 22, 2013,; Adam Ramirez, “NYPD ‘Stop-and-Frisk’ Policy Ruled Unconstitutional,” Findlaw, January 10, 2013,;
  5. [5]Democracy Now! “Killed at Home: White Plains, NY Police Called Out on Medical Alert Shoot Dead Black Veteran, 68,” March 29, 2012,; Josh Eidelson, ” ‘Profoundly offensive, and an incredible waste’: Why are we busting drug users?” Salon, November 25, 2013,; John Eligon, “Florida Case Spurs Painful Talks Between Black Parents and Their Children,” New York Times, July 17, 2013,
  6. [7]
  7. [6]David Benfell,”Open season,” Not Housebroken, July 16, 2013,, in a posting on the racial make-up of the prison population,[7]David Benfell, “Thinking about prisoners and institutionalized bigotry,” Not Housebroken, August 5, 2009,
  8. [8]David Benfell, “Cops, gangs, and the conflation of roles,” August 6, 2011,
  9. [9]Erin Allday, “Rally in Oakland over Johannes Mehserle’s release,” San Francisco Chronicle, June 13, 2011,
  10. [10]Richard Fausset, “Five police convicted in post-Katrina shootings,” Los Angeles Times, August 5, 2011,,0,4887609.story
  11. [11]Richard Fausset, “Five police convicted in post-Katrina shootings,” Los Angeles Times, August 5, 2011,,0,4887609.story
  12. [12]Erin Allday, “Rally in Oakland over Johannes Mehserle’s release,” San Francisco Chronicle, June 13, 2011,
  13. [13]Tracy Jan, “Harvard professor Gates arrested at Cambridge home,” Boston Globe, July 20, 2009,
  14. [14]Associated Press, “Cop, scholar to meet again after Obama chat,” MSNBC, July 31, 2009,
  15. [15]Tracy Jan, “Harvard professor Gates arrested at Cambridge home,” Boston Globe, July 20, 2009,
  16. [16]Erin Allday, “Rally in Oakland over Johannes Mehserle’s release,” San Francisco Chronicle, June 13, 2011,
  17. [17]David Benfell, “Cops, gangs, and the conflation of roles,” August 6, 2011,
  18. [18]Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (New York: Random House, 2008).
  19. [19]Sam Baker, “ObamaCare birth-control mandate on fast track to Supreme Court,” Hill, August 22, 2013,; Robert Barnes, “Some business owners resist providing employees with contraceptive coverage,” Washington Post, May 22, 2013,; Ronald J. Colombo, “The First Amendment, corporations and religious freedom,” Constitution Daily, November 27, 2013,; Lyle Denniston, “Constitution Check: Does the Citizen United ruling settle the Hobby Lobby case?” Constitution Daily, November 27, 2013,; Marc O. DeGirolami, “Supreme Court Agrees to Hear For-Profit Contraception Mandate Cases,” Center for Law and Religion Forum, November 26, 2013,; Marc O. DeGirolami, “On the Claim That Exemptions From the Contraception Mandate Violate the Establishment Clause,” Center for Law and Religion Forum, December 5, 2013,; Marc O. DeGirolami, “Reflections on the Hobby Lobby Oral Argument: On the Establishment Clause Claim,” Center for Law and Religion Forum, March 25, 2014,; Linda Greenhouse, “Doesn’t Eat, Doesn’t Pray and Doesn’t Love,” New York Times, November 27, 2013,; Julian Hattem, “White House faces tough Supreme Court fight on ObamaCare mandate,” Hill, November 26, 2013,; Adam Liptak, “Justices to Hear Contraception Cases Challenging Health Law,” New York Times, November 26, 2013,; Adam Liptak, “Justices Seem Open to Religious Claims by Companies,” New York Times, March 25, 2014,; Mark L. Movsesian, “Ron Colombo on Yesterday’s Cert Grants,” Center for Law and Religion Forum, November 27, 2013,; Jeffrey Rosen, “Why the two new Affordable Care Act cases could refine the religious liberty rights of corporations,” Constitution Daily, November 26, 2013,; Jonathan Turley, “Supreme Court Takes Up New Religious Challenge To The Affordable Care Act,” November 27, 2013,; Sarah Wheaton, “Court Rules Contraception Mandate Infringes on Religious Freedom,” New York Times, November 1, 2013,;
  20. [20]Adam Liptak, “Justices Seem Open to Religious Claims by Companies,” New York Times, March 25, 2014,
  21. [21]Jeffrey Toobin, “Women Justices Rock the Hobby Lobby Argument,” New Yorker, March 25, 2014,
  22. [22]David Benfell, “The Quixotic Quest to Comprehend Conservatism,” March 19, 2014,
  23. [23]Jeffrey Toobin, “Women Justices Rock the Hobby Lobby Argument,” New Yorker, March 25, 2014,

One thought on “Rich judging poor, whites judging Blacks, and men judging women: How so-called ‘justice’ is blind to privilege

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.