Criminal Injustice: A Critique of Reiman’s Thesis

I teach in the department of Democracy and Justice Studies (DJS) at the University of Wisconsin-Green Bay. For my junior-senior level criminal justice course, Criminal Justice Process, I use Jeffrey Reiman’s The Rich Get Richer and the Poor Get Prison. In this blog, I explore the strengths and weaknesses of what has become a seminal text in the study of the US criminal justice system and a text with which my students have to engage.

Criminal Justice Process explores policing, corrections, and, to a lesser degree, the court system in Western society, focusing primarily on institutions and practices in the United States. Major components of the criminal justice system are theoretically linked to larger social arrangements—class, race, and ethnic stratification. Ethical problems, such as deadly force, police corruption and brutality, disparities in arrest and sentencing, and unequal representation, are given special attention. The history and function of criminal justice is examined from various standpoints (mine is Marxian) and alternatives to the current structure of law and punishment are considered.

I use Reiman’s text in the first quarter of the semester to raise awareness of the realities of the criminal justice system in the United States, especially the failure of the state to protect ordinary people from what Edwin Sutherland calls “analogous criminal activity,” deviant acts perpetrated by the capitalist class and its managers. For example, sixteen workers die every day on the job from unsafe working conditions, conditions that exist for the sake of the corporate bottom line.

As a historical materialist by training and in standpoint, all my courses employ a critical-theoretical approach to the historical material and contemporary issues. On this basis, I tend to look for books that share this approach or at least make it available. My goal is to unsettle students, to challenge their commonsense understanding of the world. What probably stands out most about the The Rich Get Rich and the Poor Get Prison is the effect it has on students.

For students already aware of the inequities in the US criminal justice process, Reiman’s book reinforces their belief that a major American institution is fundamentally flawed, unjust, and needs reforming (or abolishing). They leave the class with more ammunition to use on their opponents. Reiman provides readers with a great many useful and fact-rich arguments.

More than a few students react to the text ideologically; understanding that the book defies their lay theories of crime—indeed that Reiman means to shake their faith in the legitimacy of the institution of criminal punishment in the United States—Reiman perturbs them. They a priori reject the book’s premise, but they can neither easily reject the validity nor the soundness of its arguments. They resent having been required to read it.

The third group is comprised of those changed by the text. Though initially skeptical of the book’s thesis, they nonetheless open it with a curious mind and close it with a different sense of the justice—even if they do not adopt it. The existence of this third group is unique; most other texts aimed at undergraduate students change neither conscience nor consciousness.

Before moving to an appraisal of Reiman’s work, I preface my remarks by noting that The Rich Get Richer and the Poor Get Prison is an outstanding critique of the criminal justice process. This is a book that needs to be read by anybody invested or interested in this issue. Tragically, the text is as relevant today as when it first hit the market in 1979. Thus, the following remarks emanate from a position of admiration and appreciation. Indeed, it was in part my reading a dog-eared copy of the first edition of The Rich Get Richer… in my father’s office years ago that drew me to the field of criminal justice. I believe I have read every edition (how many are there now?).

Reiman proceeds by bold ideas. He demonstrates the persistence of injustice in the criminal justice system by playing with a literary device: the notion of a “Pyrrhic defeat.” A Pyrrhic defeat is the image of the Pyrrhic victory turned upside-down—battles are not won at so great a cost as to militate against war, but rather are lost at too great a benefit to avoid war. The logic of the argument is that, since crime war benefits the powerful, there is little or no incentive to do those things that would actually reduce crime. Instead, the state pursues policies that are, in effect, designed to fail. Or at least function that way.

What are these benefits of crime war? Because crime control targets the economically disadvantaged and racialized and ethnicized segments of the population, the powerful benefit from the creation of an ideology, namely crime as the work of the poor and minorities. Thus the war on crime is really a war on the poor, amplifying conflicts at the edges of the social order to draw public attention from injustices in the social order, preventing the masses from blaming those at the top for the inequities that, in part, generate street crime.

Reiman is aware that his arguments suggest a conspiracy theory, one where the elite are seen as designing criminal justice policy to engineer this effect. Anticipating this charge, he emphasizes that these effects are the unintended consequences of public policies, policies that originate in a utilitarian desire to do public good.

His explanation of how such consequences emerge from well-intentioned policy is organized in a second major conceptual device: “historical inertia.” These effects are largely emergent not purposeful. As I read the text, blame for unjust public policy is to be laid more on the failure to change direction and less on those who institute the various measures.

The work here would benefit from additional literature and analysis. The literature I have in mind are studies by Michael Lynch and associates on the effects of capitalist accumulation on crime and punishment, as well as David and Melissa Barlow’s work on social structures of accumulation and the production of the criminal law.

The material organized as the appendix, “The Marxian Critique of Criminal Justice,” should appear at the beginning of the work, laying the basis for an in-depth explanation of capitalist structures and criminal law and enforcement to show how the law functions to secure the necessary conditions for capitalist accumulation. Reiman might then trace the process through which law and policy are constructed and implemented to serve the material interests of the ruling class.

Doing this—effectively bridging the gap between structuralist and instrumentalist perspectives—might permit Reiman to avoid any suggestion of conspiracy, while at the same time eschew the overly functionalist elements that haunt his explanation, seen in the rhetoric of unintended consequences and (albeit qualified) homage paid to Emile Durkheim and Kai Erickson.

The assignment of blame should be addressed more thoroughly and pointedly; it should go beyond system blaming. However unplanned the effects of some criminal law and enforcement may be, the disparate effects of the war on crime are known to those who make the policy, and their collective failure to change crime control policy in light of the brute facts makes their behavior intentional by Reiman’s standards.

Looking at the matter this way aligns Reiman’s tacit judgment of the culpability of political elites with his own superb critique of the “Defenders of the Present Legal Order.” Elaboration of Reiman’s argument in such a fashion would likely give readers not only a better understanding of the author’s main thesis, but also (hopefully) produce an expanded sense of Reiman’s ethical argument. I read this text to be as much a treatise on social justice as it is a book about disparities in the US criminal justice system.

On this last point, the text would benefit from incorporation and elaboration of thinking long the lines of Michael Tonry’s ethical argument presented in Malign Neglect, where the aurthor brings the logics of mens rea to bear on the question of responsibility—an argument Reiman puts central to his moral argument concerning white collar crime, where he appeals to Hyman Gross’s categorization of culpability (falling under the rubric of intentional action).

Bringing Tonry into the discussion would moreover allow Reiman to interrogate Tonry’s insistence, notably shared by Randall Kennedy (in Race, Crime, and the Law), that blacks are more criminal than whites. Since the lion’s share of criminal behavior, especially as analogous social injury, is shown to result from the actions of wealthy white persons, blacks are in fact less criminal than whites as a group. Stressing this point goes a long way in demonstrating the problem with William Wilbank’s “myth of a racist criminal justice system” thesis. The reality that the crime control system is not unleashed on the harmful acts of force and fraud committed by affluent whites damns his ideas even more than pointing out the discrepancy between racial identity of perpetrators recorded by the Uniform Crime Report and the National Criminal Victim Survey (itself a devastating critique).

Individuals are responsible for the predictable consequences of their actions–and those who formulate and implement crime control policy in a nation with deep and transparent economic and racial inequities are in a position to know such things.

As the historical inertia argument now stands, the argument is incomplete. Granted, later on, Reiman stresses the point that he is focused on the contemporary system and is unconcerned with presenting a historical analysis of the piecemeal development of the criminal justice structure. I understand the desire to avoid historical analysis because this would thicken a book that has as one of its selling points its brevity. But it seems that a few well-placed caveats would allow for a lucid historical overview.

Such an overview would accomplish two objectives. First, it would give substance to the historical inertia argument. Reiman would then not have to ask the reader to trust him in such matters, but will have put before the reader a historical overview with a wealth of resources that the reader may follow up on for further investigation.

Second, a historical chapter would provide the preconditions from which flows the contemporary logic of the criminal justice process. For, however much the racist-capitalist system changes in its specifics, there is little alteration in the dynamics and broad outlines of its structure over time. Plus ça change plus c’est la méme chose.

Summarizing to this point, there are three broad matters given too little attention in the beginning of the text: an explicit and up-front discussion of the structure of capitalism and how the criminal law and enforcement are designed to reproduce this structure by managing some of the problems this structure generates, namely street crime and violence; an overview of the historical development of the system sufficient to ground the historical inertia thesis and demonstrate continuity of bias in the criminal justice system; and a deepening of the moral argument and a broadening of the logic of crime as social injury to produce an indictment of dominant political actors and the capitalist system they personify.

This third matter brings us to another problem with the text: Reiman’s movement over successive editions of the book towards a more consciously Marxian standpoint while holding fast to an advocacy of progressive (i.e. welfare-liberal) reforms. I do not in principle disagree with reforming systems, and I am in agreement with Reiman’s specific reforms (these are the least that should be done), but I am not convinced Reiman fully understands that capitalism inevitably spawns not only the inequities that result in street crime but also the imperatives that drive the wealthy to injure society.

To put the matter another way: if I grant that Reiman grasps the reality that capitalism is an exploitative mode of production (he has said so much in other writings), he nonetheless fails to communicate this to the reader in terms sufficient to provoke them into questioning the legitimacy of the system in its totality. I don’t see a choice between reform and revolution, but rather consider both means to an end, to be pursued simultaneously, the end being a fully democratic republic in which significant inequalities are eliminated or substantially reduced. We should strive for policy to ameliorate poverty and race-ethnic and economic inequities, but we should at the same time struggle to transform the system fundamentally. That means struggling for socialism.

This is no small matter. The high point of the book is when Reiman raises the ethical point that a state’s legitimate right to monopolize violence is not automatic but instead depends on the ends the state or, more concretely, state actors pursue. Admitting that some aspects of US criminal justice function properly, Reiman finds that the system fails to develop policies and practices that could significantly reduce crime and enhance personal safety, and that the system fails to provide equal protection and justice. Since it does not treat those subject to its power equally, the criminal justice system is unjust and its legitimacy is called into question. In some ways, in principle, it becomes criminal in itself.

But this argument is one of the most frustrating aspects of the book, for it seems to follow from it that the moral legitimacy for the official wielding of any instrument of force depends fundamentally on whether the society in which the state acts is a just society. If the society is unjust, then the instrument of force is necessarily used unjustly.

The greatest flaw of this book is perhaps the disjuncture between the logic of the analysis taken to its logical conclusion, on the one hand, and the limits in reform, on the other, reforms that are restricted to the criminal justice system, a system that is itself understood in a restricted manner. The criminal justice apparatus becomes an island and the reforms stop at the water’s edge. It may be that the criminal justice system in a capitalist social order cannot be made sufficiently just to warrant a claim of moral legitimacy–this because capitalism it an unjust historical system. In any case, this possibility should at least be wrestled with.

Finally, I find the character of the intersection of race and class, especially racism as a relatively independent force in world capitalist society, to be undertheorized in The Rich Get Richer…. Reiman states that he believes it is possible to treat racism as a proxy for class oppression, describing it as “simply one powerful form of economic bias.” He writes, “I use evidence on differential treatment of blacks as evidence of differential treatment of members of the lower classes.” He then proceeds to show how blacks are made to suffer in the criminal justice system, and although he speaks truth with these facts, the picture he describes is not the collective experience of all poor people but of blacks specifically.

Can race-ethnic oppression be reduced to class oppression or economic bias? There are moments when Reiman collapses the latter into the former. To be sure, racism involves material disadvantage. But it is more than this. One must at least confront W.E.B. Du Bois’s “wages of whiteness” where it is observed that to be poor and white is not the same thing as being poor and black. Blacks across the wealth and income spectrum find themselves targeted by the police, while whites in all social classes are not as easily perceived as Skolnick’s symbolic assailants. Being identified as a black man carries its own effects relatively independent of class.

In failing to address racism as a relatively independent force, critical scholarship in this vein fails to make a sufficient theoretical commitment to interrogating the possibility of the objectivity of race-ethnic structures. The criminal justice system represents the most explicit mechanism of race oppression—criminal justice in America is not only about controlling the “dangerous classes” along economic lines, but also about reproducing the racial caste system by controlling the dangerous races—and in this sense it provides a model analysis to get at other forms of race oppression. Reiman misses an opportunity to amplify the point that criminal justice is one element in the coercive side of race-class oppression. 

Reiman may disagree with the argument that racism should be conceptualized in this manner and accorded a greater role in warping Reiman’s “carnival mirror,” but there is a body of scholarship, found in the works of Manning Marable, David Roediger, and Howard Winant that provides key insights into how we might move to a more comprehensive understanding of oppression under racist capitalism. (I have developed a model of the intersection in “Mapping the Junctures of Social Class and Racial Caste“). At the very least, the point should be made that the law secures the racial order just as it functions to reproduce class relations. 

At the same time, there are many poor whites who find themselves tangled in the criminal justice web. Indeed, more whites than blacks by the numbers. I have focused quite a bit on the matter of the problem of only focusing on race on Freedom and Reason (see, e.g. “The Problematic Premise of Black Lives Matter” and on the Freedom and Reason podcast (see Freedom and Reason Podcast #7: The New Jim Crow) so I will leave the matter there.

Let me close by reprising my prefatory remarks: The Rich Get Richer and the Poor Get Prison is an outstanding contribution to the critique of the American approach to crime control. With this book, Jeffrey Reiman may have made the most important popular contribution to the ongoing project to raise awareness about the injustices of the US criminal justice system.

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Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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