6 minutes

Unless it punishes the wealthy and poor the same, the rule of law is a myth.

The Tombs, 1970. (New York Daily News / Anthony Casale)

Let’s answer a straightforward yet critical question: Are the poor and the rich equal under the law in America? Of course they must be so—that’s what America advertises itself to be after all—a democracy. To answer this question is to assess the sincerity of this democracy. And this question becomes so much more important if we acknowledge—as we ought to—that half of America awns a mere 13% of its wealth, down from 20% in 1980.

To answer this question is to help ourselves escape or validate the romanticization of the rule of law. My friends, this is so important because if democracy fails the poor and favors the wealthy—which is the case—, what we have is an oligarchy and we must become angry toward it yet compassionate to one another. Without a good amount of both emotions, we’ll fail to summon the collective will for change. I’m going to answer 3 questions to asses in what state is the integrity of our law.

That’s 165 innocent people whom America could’ve killed because they were poor.

The first one is why no rich folk has been on the death row ever? Think about it. All 176 inmates on the Alabama’s death row are impoverished. And to make things worse, 50% of them are black even if blacks represent just a quarter of the population there. Ask any of these indigent inmates whether any rich men are awaiting a lethal injection and they’ll smile at the question and then berate the fundamental inequality in our justice system. And this isn’t something I’ve invented, my friends. It’s poverty that sentences these men to death. Why? Because they cannot afford to hire an attorney, relying on the underpaid public ones. From 1992 to 1999 in Harris County, Texas,—the capital of capital punishments—the court convicted no people who could afford a lawyer to a death sentence, in spite of them committing similar heinous crimes as those defendants with a public attorney. It seems that money decides who dies and who lives, my friends. That’s why since 1973, one out of 10 people escaped death penalty through exoneration, some out of mere luck. That’s 165 innocent people whom America could’ve killed because they were poor.

Yet, the Department of Justice (DOJ) has sent to prison 0 criminals responsible for the devastating 2008 financial crises. This brings us to the second question. And this is the question that divides our country in 2 Americas. The crime the people on the death row committed might be heinous and provoke outrage; yet, why, in spite of the most colossal damage to millions of Americans since the Great Depression, the DOJ lacked the balls to send to prison white-collar criminals? After all, their greed stole 7% of our GDP, or $70,000 of our lifetime income that we should’ve enjoyed if not the economic crash. How is it not a crime?

Here, my friends, we witness the faltering of the our supposed sacrosanct rule of law. It is as if for a convenient brief while democracy seized to exist. In most of the United States, you cannot simply prosecute a company; for that, you must prosecute someone at the top of it. I love and it’s so true the way Federal Judge Jed S. Rakoff put it in 2014: “If you are a prosecutor do discover financial fraud, you go about your business the same way you go after mobsters and drug kingpins.” Yet to our deep sorrow, our lawyers working within the DOJ failed us in this respect. Instead, they bought into the corporate narrative that sending a number of CEOs to jail will further crash the already crashed economy. (And because of a lack of motivation on the part of our government to investigate crime, we’ve failed to know even how many criminals they were.) Somehow, because the banks were too big to fail, the CEOs were too big to fail as well.

America is so confident in killing its own poor people, yet trembles with incertitude whenever it must investigate crime on the Wall Street.

But what an elementary flaw in logic this is, my friends, as if no other professionals existed to replace the condemned CEOs. To believe that such big banks like Bank of America or Citigroup—so big they persuaded the DOJ they are above the law and succeeded—would fail to find another leadership is to believe in the tooth fairy. It is outrageous and a mockery of our democracy when the DOJ failed to pursue at least some CEOs. At least to tell us it cares a little about democracy. Couldn’t they give us just a little of it? Some crumbles? Why couldn’t we prosecute the criminals and bail out the banks at the same time? America is so confident in killing its own poor people, yet trembles with incertitude whenever it must investigate crime on the Wall Street.

Instead of proving to its people that America cherishes the rule of law, our naive leadership agreed to not pursue these criminals. Instead, it agreed to get these banks to pay billions in fines and installed audits to oversee corporate reform that would supposedly prevent similar fraud. I’m not going to talk about the quality of such an audit. It’s enough to ask ourselves whether we want the DOJ—our leadership—to play with corporate culture while criminal bankers get billions in bonuses or to investigate, prosecute, and punish? We know what they chose and this is worrisome. Between 2004 and 2012 the DOJ reached 242 so-called deferred agreements with corporate America, compared to just 26 in the previous 12 years. At the same time, white-collar prosecutions made 17.6% of federal cases in the mid-90s; in 2012 they made just 9.4%. Our government, my friends, has become less confident to do its job in the face of corporate power. The DOJ thought it achieved success with these agreements, but what it lost was the invaluable skill it could’ve developed pursuing bankers who committed a far-reaching crime.

And whatever fines the DOJ extracted from banks, it comes at a loss to our democracy. Why? Banks loved to get a fine instead of an indictment and perhaps a binding precedent. Instead, our leadership allowed for an impunity that emboldens bankers to think of themselves beyond the law. Big banks understand that fines are a mere routine—an easy compromise—of doing business. Such fines affect them little: Corporations had begun to earn money at a record-high after the 2008 crash, while people’s wages have stagnated since 1970. For example, the DOJ penalized HSBC with $1.9 billion, boasting it to be the biggest fine until 2012. Yet, it took the bank just 4 weeks to earn this money back and its share price remained unaffected. What’s more, between 2001 to 2010, no company on the stock market failed because of a conviction. My friends, corporate America had championed its immunity on fearmongering.

Meanwhile, half a million people are in jail because they cannot afford bail. My friends, the amount of unfairness is so disturbing. Let me repeat that: half a million people in America are in jail for being poor. Yet, our leadership failed to convict one banker who—up to 2008—devised criminal schemes so detrimental to our economy. But, instead of reforming its bail-system America doubled down on it even if it is discriminatory. Since 1990 the number of bails the courts have been ordering increased from 50% to 70%, while the number of days people must stay in jail increased too. These numbers are such an obvious sign that our leadership has done little to correct the law targeting the poorest of our population.

It was perfectly clear that, had the judges stayed to hear all 460 cases, at least 400 of those men would have been released on the spot.

Congressional candidate Herman Badillo, 1970.

Our leadership had over 5 decades to learn this lesson. The New York jail system in 1970 was so overcrowded and deplorable, with two-thirds of inmates who couldn’t afford $1000 bail. It’s no wonder why they took guards hostages and demanded judges hear their cases already. Congressional candidate Herman Badillo commented on the situation after he arrived at the Long Island City jail. In its courtyard 3 judges begun the trials of so many desperate men. “It was perfectly clear that, had the judges stayed to hear all 460 cases, at least 400 of those men would have been released on the spot,” Badillo said. But since then, it seems, our rule of law has degenerated into a caste system where untouchables remain untouched and our democracy collapses. But when the men could stir public outrage from their overcrowded cells in New York and trigger a conversation, for us who are free we have little excuse not to do the same today. Let’s redeem the integrity of our rule of law.