Who makes the laws, and for whom?

Since the time I began proclaiming there wasn’t any justice in the war on drugs, nigh on a dozen years ago, our country and world has changed dramatically. Still, there is little substantive discussion about what went on back in the mid-1980’s when changes to our federal criminal justice system set us on the path we find ourselves today.

Raw capitalism requires wealth and consumption. Power can become unbalanced in a system such as this, so a democracy has to put in checks and balances for the people that don’t have wealth. When the system of checks and balances break down — good intentions go awry. Our federal criminal justice system shows glaring breakdown, so do our banks and financial institutions and the issues are deeply connected.

We were recently reminded by Joe Biden during the Vice Presidential debates that when “we don’t know what causes a problem, we can’t fix it.”

While the tough-on-crime Congress and Presidency of the mid-1980’s were beating their mostly white, hairy chests about fairness in federal law and about to get real tough, and mandatory on criminals across the lawless United States, corporate and business interests began a strategy that would coax five drafts in five years of wrangling before the Sentencing Guidelines for business crimes were put into law. Each draft was less, and less punitive.

Gone are the days of parole and hope of earned, early release. It is lock them up and throw away the key, but the US Sentencing Commission never recommended prison as a first choice for the banker, corporate polluter, development investor who ran afoul of federal law. Fines and probation were in the first draft and when the final draft was made law in 1991 — the fines were 97% lower than the Commission had originally recommended. And you could put your fines on credit so you didn’t have to do probation! So much for all that get tough — the only federal law violation that brought tougher sanctions was a drug violation. Five years for a couple of rocks, no prison time for stealing stock.

While the good citizens across the country were being sold a bill of goods about fairness and new, harsh justice philosophy coming to America, business interests wrangled out from under broad legal investigatory powers, punishments, fines and probation. The result? A conversation begging to find it’s way into mainstream headlines because this is part of ‘deregulation,’ and large part the cause of our growing unease, perhaps economic collapse.

For over 25 years, federal policing has been focused primarily on drug law violators and ‘street level’ crime, not on criminal players in business and financial institutions. After the Enron debacle, but not until 2004 would the Commission re-visit penalties for corporate, and business crime.

The interests of the public good has been long suffering while cherished legal principles continue to be destroyed in the name of a federal war on drugs.
New conversations about the over-haul of our criminal justice system are easy to identify, but seldom include critiques of the apparatus now in place, a Sentencing Commission that upholds draconian laws that punish the poor, even as corrupted financial institutions crumble, not just in the United States, but around the world.

For further reading:
Structural Contradictions and the United States Sentencing Commission, The development of federal organizational sentencing guidelines by Laurie J. Rodriguez & David E. Barlow.

Abstract: This research is a case study of criminal justice policy formation involving the development of federal sentencing guidelines for business organizations by the United States Sentencing Commission. It describes the decision-making process of the Commission and the influence of other groups and individuals on the process, and recounts their actions within the framework of structural contradictions theory. In the case of the federal sentencing guidelines, it is demonstrated that representatives of business opposed any legislation that was meant to limit the power of corporations or sanction the actions of their representatives, and therefore placed pressure on members of the Commission to eliminate or minimize such sanctions. The study confirms that the state, in an effort to foster the continued capital accumulation necessary for a healthy economy, acknowledged capitalist provisos and at least partially submitted to them during the development of the guidelines.