I'm about done with Matt Taibbi's rabid indictment of the criminal justice system, The Divide. Stylistically it is most reminiscent of a semi-drunken dude yelling at me over the din of a loud bar. You want him to stop, but in this case, the content of his diatribe is compelling enough to stick around. Stuffed between unnecessary sports metaphors and righteous (and it is righteous) indignation, Taibbi tells a tale of two justice systems, one for communities of color, low-income communities, and immigrant communities, and another for the elite white collar workers in banking and related financial service industries. The former are subject to racist harassment, profiling, and abuse; the latter get off with "win-win" settlements.
He assumes that readers are well-off white people like him, and that they're not already familiar with the perverse, racist practices of law enforcement. Anecdote after anecdote is piled on as we watch cops giddy on Comp Stat and S-Comm binges terrorize people for standing in front of their apartment buildings, or on the corner, or reacting badly when they are grabbed suddenly from behind by a plain-clothed cop.
In Georgia, Taibbi takes us to communities where cops hang around outside churches on Sunday in Central- and South-American immigrant communities, pulling people over for not having one tiny break light properly installed. If they're lucky, these people will be fined an absurd $1,000; if not, they could end up like one of the nearly 400,000 people deported in 2011 alone. While in immigration detention, Taibbi also takes pains to point out, prisoners don't have the same legal protections as inmates in traditional criminal facilities, meaning that their cases aren't properly defended and they can't necessarily contact their families.
Against this story of inhumane harassment, he juxtaposes the masterminds of the 2008 financial crisis, whose crimes lost billions for investors like Long Beach, California, innumerable pension funds, and of course millions of homes and jobs.
Despite the damage they had done to the economy, not to mention lying to the public and the courts in numerous cases, none of the key players has been charged with a crime.
If the book's organizing principle is a bifurcated justice system, prosecuting bankers becomes Taibbi's one policy prescription. If justice were equally administered, he believes, then the bad guys would be in prison and the good guys would be left alone. The inequality in the justice system, rather than the degrading fact of incarceration becomes the primary target.
It's a myopic assessment, but of course he is not alone. Recently the New York Times Magazine published "Why Only One Top Banker Went to Jail for the Financial Crisis," Jesse Eisinger's updated version of Taibbi's tale. The piece follows the successful prosecution of Kareem Serageldin, a Credit Suisse exec who is serving 30 months for lying about the value of securities. Like Taibbi, Eisinger is concerned with how DOJ policy has lead to a decline in white collar prosecution, down to 9.4% in 2010-2012 from 17.6% in 1995-1997. Story goes that the Bush DOJ brought in Michael Chertoff, an aggressive prosecutor, who made an example of Arthur Anderson's involvement in the Enron scandal but never recovered from the backlash at having cost Anderson's 26,000 employees their jobs. From going after corporations by offering settlements only if they waived the right to corporate lawyers (the Thomson Doctrine), DOJ settled on the Holder Doctrine, which placed "collateral consequences" literally above the law. If the DOJ thought that prosecutions could hurt the economy, they would go straight for a settlement. Little wonder these banksters were derided as "too big to fail."
For Eisinger, DOJ impotence is the rule, not the exception, as "Federal prosecutors almost never bring criminal charges against top executives of large corporations, from banking to pharmaceuticals to technology." He goes to wonder if ,"Perhaps one reason Americans have come to begrudge the wealthy is a resentment of their culture of impunity." Perhaps!
Despite forceful marshaling of evidence, both Taibbi and Eisigner condemn their enemies to the fate of their friends. The overwhelming moral of the story is that the wrong people are in jail, when in reality the problem is that jailing doesn't work. It obviously doesn't work for the millions of Americans whose "crime" was being victimized by racist policing, and it wouldn't work if all the bankers in all of Manhattan were sent upstate. The DOJ's complicity in financial crimes makes me sick, but the solution is not to exile and cage another person. In the case of Stop and Frisk and Secure Communities, the obvious recommendation is to reverse those policies and remove law enforcement's broad discretion to do whatever they want to whomever they want. We must all agree that it is morally and legally repugnant to treat immigrants "like ATMs."
In liberal circles, the consensus position has moved toward greater sympathy for the millions of Afro-American men who have been victimized by racist policing, just as it would easily condemn all of Wall Street to prisons upstate.
Allow me to play the heretic. Taibbi and Eisinger are right that we need a dramatic re-envisioning of financial regulation and criminal justice, one which doesn't condemn a young man walking home from school to worse fate than an executive who steals millions of dollars. Condemning a few particularly bad actors to wasted lives is simply not a step toward that goal. At bottom it's a question of responsibility and accountability - how to ensure that powerful actors use that power responsibly and are accountable to the greater public?
Prison abolitionism, the idea that prisons replicate the violence they are meant to control and should be replaced with a different system of justice, addresses this very question. In a recent set of conversations for BCRW, Reina Gossett told Dean Spade that "abolition means that no one is disposable, no one is expendable, we are no exiling people or punishing people in order to solve our problems."
As Taibbi and so many others have elaborated, you can get thrown in jail for just about anything right now, and if you're not white or undocumented, chances are that you will be. As the tide is starting to turn against harsh and arbitrary sentencing, it seems easy to agree that we shouldn't jail so many people.
But what about the dangerous people? This is the question Gossett and Dean tackle so beautifully. Taibbi and the anti-bankser crusaders are trying change the target, demonstrating that our definition of dangerous is rigged and racist, but Gossett and Spade skillfully redefine the terms of the debate. Citing Ruth Gilmore, they respond that the distinction between guilt and innocence is false, and that on some level we are all innocent, and we are all guilty. Gossett says, "there are some people who are held accountable by the state for doing that kind of harm and there are some people who will never be accountable by the state for doing that kind of harm." Much like Taibbi, Gossett and Dean see that "we're giving our power to hold people accountable over to the state" and then "they create zones of total lack of accountability." Instead of fighting over who should be caged, Gossett and Spade challenge us to find a solution where truly "no one is disposable."