A legal framework functions primarily to advance the interests of those who shape it. It determines the rules of the game according to which everyone must play. Different rules favour different interests. Slaves do not write the laws that oppress them. Colonies do not pass the laws that exploit them. Trade unions do not formulate the laws that criminalise them. The laws defining marriage for most of Western history, which effectively made a wife the property of her husband, were not drafted by women. Those who fought to end slavery, improve working conditions, resist colonialism, expand voting rights, achieve gender and racial equality, stop wars and protect the environment, repeatedly clashed with the law out of necessity, enduring police violence and imprisonment in the process. In each case, the law defended the privileges and prejudices of those with power against the rights and interests of those without it.
Adam Smith, the father of modern economics, observed in 1776 that ‘Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.’97 To the extent that the law is shaped and interpreted by a narrow set of elite interests, it degenerates into a means of defending privilege. In fact, the word ‘privilege’ originally meant ‘private law’. The less accountable a legislative process is, the more law enforcers are reduced to the status of a private army, whose primary role is to serve and protect those already in possession of the privileges that accompany wealth and power. Indeed, many of the police departments in the US originated as patrols to help wealthy landowners capture and punish escaped slaves.
The rights people enjoy today were won by those who were prepared to challenge the ‘private law’ of their time, acting outside it when necessary. It is to them we owe a debt of thanks for the political freedoms we possess – not to those law-abiding citizens who did nothing to challenge the legally sanctioned slavery, patriarchy, racism, apartheid, child exploitation, torture, imperialism, crippling poverty and disenfranchisement of the past, nor to the police and courts who upheld this legally sanctioned oppression.
Punishment is ultimately about power. When the formulation of the law results from great inequalities of power, its implementation becomes not a neutral act, but a highly partisan one, privileging one set of interests over the rest. Martin Luther King captured the essence of the problem when he asked us, in his ‘Letter From Birmingham Jail’, never to ‘forget that everything Hitler did in Germany was legal’. King himself, like Gandhi and Nelson Mandela, was imprisoned for breaking the law. Mandela was branded a terrorist, not just by the South African government but by the political establishments of the US and UK. And, although he was elevated in popular culture to the status of a modern-day saint after his release from prison in 1990, he remained on the terrorist watch list in the US until 2008.
The ‘terrorist’ smear continues to be widely used. Canada categorises eco-activism as a form of terrorism and a ‘threat to national security’. Those profiting from the destruction of the environment remain undisturbed by the law. In the UK, laws that were passed ostensibly to combat terrorism and anti-social behaviour have been routinely applied to people engaged in legitimate and peaceful protest; spaces in which protests are permitted, specifically those around Parliament, have been heavily restricted; ‘stop and search’ powers, created under broader anti-terrorism legislation, have been used to harass peaceful demonstrators; advocacy groups, including environmental campaigners and anti-war protesters, have been classed as ‘domestic extremists’ and infiltrated by undercover policemen who go to extreme lengths (including marrying unsuspecting activists and fathering children with them) to maintain their cover.
In Canada, in 2010, thousands of protesters streamed on to the streets of Toronto as part of a peaceful protest against the G20 summit. Halfway through the summit weekend, a senior police commander gave the order to ‘take back the streets’. The next thirty-six hours saw a thousand people – from peaceful protesters to journalists, human rights observers and Toronto residents – arrested and detained, a stark illustration of police priorities.98 Two years later, another instructive example took place in Canada, this time in Quebec. Thousands of students were engaged in protests against the hike in their tuition fees. ‘The Maple Spring’, as it was dubbed, was met by a concerted clampdown by police, legislators and the courts. Law enforcers used pepper spray, stun grenades and rubber bullets. These draconian measures resulted in new anti-protest laws being passed and over 3,000 arrests in the space of seven months. One of these, a student leader named Gabriel Nadeau-Dubois, was convicted and sentenced for the grave crime of declaring, in a media interview, that he believed student picket lines were a legitimate form of protest.99
In the US, the Occupy movement, although a peaceful expression of widely held concerns, resulted in numerous instances of police brutality, human rights violations and mass arrests. And in Puerto Rico, peaceful protests over the last few years have been met with, among other things, toxic chemicals, tear gas, pepper spray, swinging batons, rubber bullets, sting-ball grenades and ‘conducted-energy’ weapons.100 These examples are just the tip of the iceberg. Along with the erosion of personal privacy, the criminalisation of whistleblowers, and the broader clampdown on internet freedoms, they appear to be part of a wider trend that threatens our most treasured democratic institutions.
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The criminal justice system places the cordon of responsibility tightly around the individual. This is a disingenuous way to absolve political and economic systems and to deny the need for real equality beyond the confines of the courtroom. If we judge a person or group to be truly responsible for some deplorable action, we leave no room for a more searching explanation of the deeper causes of that action – and this myopia increases the likelihood of reproducing the confluence of economic, political and cultural forces that created the conditions for it to occur. (In the same way, if we judge a person to be ultimately responsible for an admirable action, our presumed knowledge can blind us to its deeper causes, making it harder to reproduce the kinds of behaviour we want to see.)
The responsibility myth has a powerful hold over us: even if we reject it intellectually, it can appear inescapable in practice, in our day-to-day lives. Yet, as we have seen, it gives us a distorted picture of reality. If we accept that people are not truly responsible for what they do, then a prisoner is no more deserving of his sentence than the judge who delivers it to him. The unsavoury truth, as jurist Wendell Holmes understood, is that the law ‘bears most hardly on those least prepared for it’.101
Today’s system of criminal punishment is not a solution to injustice but a symptom of it. Its irrational foundations divert attention away from society’s deeper injustices and failings, many of which we will explore in the following chapters. If society was serious about reducing crime it would hold accountable, and attempt to deter, those whose actions and ideologies perpetuate the conditions that breed it: those who fight to preserve and extend enormous inequalities of wealth, power and opportunity. A politician in a suit can do far more harm than any street gang, drug dealer or petty thief.
Crime is a politically determined category that must always be scrutinised. For too long our system of punishment has been the means of reinforcing broader social injustice rather than preventing it. The antidote, at all levels of society, is greater political accountability and equality. Only through the creation of a fairer, more humane society – one that offers dignified opportunities to all – can a criminal justice system ever be truly just.
3
Reward
Every morning, people around the world wake up to another day’s work. Across the planet minerals are extracted, machinery operated, goods transported, seeds sown, text typed, houses built, crops farmed, clothes stitched, patients cared for, and children taught. Hours pass and energy is expended. It’s a remarkable fact that at the close of each day people are rewarded so unevenly for their contributions. Billions earn less than $2 a day while, at the opposite end of the spectrum, an American hedge-fund manager like David Tepper bags more than $1