The Fear of Too Much Justice
Race, Poverty, and the Persistence of Inequality in the Criminal Courts
The New Press, 2023
By Stephen B. Bright and James Kwak
With a foreword by Bryan Stevenson
In The Fear of Too Much Justice, public defender Stephen B. Bright and scholar James Kwak provide a readable, far-reaching, and expertly constructed overview of the various issues plaguing the U.S. criminal law system. Through critical analysis and anecdotes from Bright’s storied career, this book explores the conceptual and historical foundations of our criminal law and the injustices inflicted upon the U.S. poor and working classes.
Part 1 – Legal Formalism
The book begins with a discussion of “Legal Formalism,” a cornerstone of western law. In essence, Legal Formalism is the idea that judges receive special training that allows them to engage in “legal reasoning.” i.e., perfectly objective reasoning without any bias, applying the one true meaning of the law to the facts of a case. While racialized groups in the United States have never enjoyed the luxury of believing this fairy tale, the myth of legal formalism was once far more pervasive than it is today. A number of factors have contributed to this decline, including the growing influence of critical legal scholars and the Supreme Court’s recent behavior, which has been so flagrantly unethical that public confidence in the Court has fallen to historic lows.
Although most people can use their common sense to see through the myth of legal formalism, The Fear of Too Much Justice provides a detailed and startlingly clear roadmap of the places our legal system diverges from the way we’re taught to think about it. A few of the more poignant examples are listed below:
- Since 1990, the rate of violent crime in the United States has declined by roughly half, while the rate of incarceration has remained unchanged;
- There is not a single quantifiable public safety benefit that the cash bail system provides;
- The average U.S. family can’t afford to pay for a $500 emergency expense without taking on debt, yet courts routinely set bail astronomically high. For example; In Pennsylvania, the average bail per case was over $38,000 in 2016-17;
- Roughly 70% of the people incarcerated on Rikers Island in New York City are there for failure to pay bail, rather than any criminal conviction.
Upon taking office, President Joseph Biden directed the Department of Justice to stop using private prisons to hold individuals convicted of federal crimes. The private prison industry responded by converting a number of prisons into immigration detention centers. Currently, roughly 70% of Immigration and Customs Enforcement (ICE) detainees are housed in privately owned facilities;
In one nationwide poll, 69% of crime victims preferred community-based programs over incarceration, as the best way to hold offenders accountable. Perhaps this is because jail-time increases recidivism, while restorative justice programs have been shown to dramatically reduce the likelihood of future arrests or convictions; Roughly half of the federal prison population is in jail for drug-related offenses.
Part 2 – The Right to Counsel
In the 1950s and 1960s, U.S. racism had taken on international significance as a highly effective propaganda tool of the Soviet Union, in the “cold” war for the hearts and minds of the Global South. The U.S. Left leveraged this unique circumstance, as strategic displays of solidarity and obscene depictions of extreme police violence against non-violent, anti-racist protestors multiplied the appeal of Soviet anti-racism many times over. In an effort to rebut the growing perception of the United States as “the most racist nation” in the world, U.S. liberals adopted a number of revolutionarily progressive reforms. Famous examples include Brown v. the Board (formally ending Jim Crow), the Immigration and Naturalization Act (formally overturning the Chinese Exclusion Act and other eugenics-based immigration laws), and the Civil Rights Act (providing for, among other things, the use of affirmative action to implement Brown). Included among these changes was the creation of a public right to legal representation in Gideon v. Wainright, handed down by the Court in 1963. Up until Gideon, poor people were routinely convicted of crimes without legal representation, as this was exclusively a privilege of the wealthy.
Despite being hailed as a shining example of the Warren Court’s progressive platform, the rights created by Gideon itself are narrow. It established that individuals have the right to an attorney, only for certain types of crimes, excluding certain misdemeanors where the potential penalty does not include incarceration. In practice, this means that there is no right to counsel in proceedings where an individual could lose custody of their child, be evicted from their home, be released on parole, be deported from this country, or lose the right to crucial federal and state benefits such as food assistance.
Part 3 – Induced Demand and the Social Construction of Crime
“Induced Demand” describes a situation in which increasing the supply of a thing leads to increased demand for the same thing. In a recent study, researchers found that building additional lanes on a highway doesn’t improve traffic congestion, because any increase in road capacity will produce a corresponding increase in the amount of driving as well.
In the context of crime, research shows that the more money we spend on policing, surveilling, and incarcerating people, the more people will be incarcerated. One of the mechanisms through which this occurs is lobbying by the prison industrial complex for policies (like cash bail) that produce the longest sentences for as many people as possible, without regard to public safety or the innocence of the accused.
Liberals and conservatives believe that programs like student loan forgiveness, Universal Pre-K, public housing and education, and universal healthcare are prohibitively expensive, while justifying seemingly endless spending on war, domestic surveillance, and policing. In reality however, crime is socially constructed, and funding the prison industrial complex means neglecting the social programs that prevent crime from occurring in the first place and save cities money. The famous democratic socialist Martin Luther King Jr. once remarked that “America would never invest the necessary funds or energies in rehabilitation of its poor so long as adventures like Vietnam continued to draw men and skills and money, like some demonic, destructive suction tube.”
Bright and Kwak rightly conclude that “much of the resources devoted to prisons – over $80 billion a year – must be reallocated to high-quality early childhood education programs, community initiatives addressing the traumatic experiences of marginalized children, therapy and drug treatment, educational and vocational opportunities, job placement services, and similar programs.” They also include a number of positive examples and ways to get involved in the struggle throughout their book, including the following:
- Criminal Mental Health Project
- Denver, Colorado, and Eugene, Oregon, are using behavioral health specialists trained in crisis response instead of police to respond to mental health crises.
- Common Justice, based in Brooklyn, New York and founded by Danielle Sered
From 2021-22, the city of Houston housed more than 25,000 homeless people, reducing homelessness by 63% and saving the city millions of dollars that had previously been spent jailing these same individuals.
They forgot to mention “your local DSA chapter” as the best place to get involved, but no one’s perfect (the National Abolition Working Group of DSA does some excellent work as well). The Fear of Too Much Justice is a bracing, informative and timely call to action on behalf of the poor and working class and against the coercive powers of the state at their worst. This is well worth the read.