Equality as the Soul of Justice

On Friday at work, I began reading Michelle Alexander's The New Jim Crow, which spurred my thinking about equality and justice in the US as it plays out in legal enforcement and in social welfare.

Alexander's book, which addresses the racial biases in our current age of mass incarceration, highlights the inherent inequity in the enforcement of drug laws.  For instance, even though roughly the same percentage of both whites and African Americans use illegal drugs, African Americans make up about 75% of those incarcerated for drug-related felonies.  Add on to that the fact that in many states, those with past felony convictions often face disenfranchisement and employment discrimination, and we can see how the current policies of the drug war and the US justice system exacerbate existing inequities and create a sort of underclass that goes against the values that both politicians and the public claim to hold dear.

Before I address a few cases of unequal treatment in US social and economic policy today, it is important to have a firm understanding of what is meant by the word justice.

Embracing the mathematical terminology that I so rarely get to use nowadays, I would express justice in terms of a mathematical function.  Let's represent the "enactment of justice upon action x" as j(x). 

Then we can say
        For every actions (or situations) x and y, j(x) = j (y).

That gives us the simplest representation of what justice as equal treatment means.  There are some areas of justice, such as distributive justice, where this function may require adaptation; however, as far as the enforcement of a legal code goes, it can suffice.

With this in mind, let's take a look at the U.S. drug war.  If 75% of those incarcerated for drug-related felonies are African American even though the rate of usage of illegal drugs mirrors the demographic breakdown of the population at large, then we can tell that there is unequal enforcement of the drug laws--both racially and geographically.  In her book, Alexander highlights examples of police officers engaging in warrantless searches of the cars or homes of urban blacks. Does the same also happen in white suburbia, where drug use is as high as it is in the city?  The answer is, of course, no.  In order to achieve the ideal of justice, one must take one of two routes.  First, we could as a society decide that we want to more strictly enforce the drug laws in the suburbs, as well as in the cities.  We could heighten our spending on law enforcement, perhaps crowding out other parts of the budget or necessitating tax increases.  We could have regular searches of the cars and residences of affluent whites in suburbs and on college campuses with the aim of identifying drug users, and we could then provide felony convictions to the teens in the affluent suburbs--something that would likely damage their college prospects and career prospects.  We could heighten the surveillance apparatus of modern society to ensure that no person is able to break the drug laws on the book without facing due punishment because if a law can be broken regularly with impunity, then respect for law must inevitably wane. However, we could take a different route, one that would entail the legalization (but heavy regulation) of the less harmful of illegal drugs (such as marijuana), and we could use the money we would gain from taxation to fund prevention programs and rehabilitation programs.  We can aim to arrest everyone, or we must change the law to arrest no one.  However, selective enforcement cannot hold in the court of the ideal of justice.  (I, for one, would prefer the second path.)

Let's take another example.  If you have a felony conviction, you can be denied access to public housing, or your family can be evicted.  If the state decides to refrain from subsidizing the housing of those with past felony convictions, should it then not also deny the home mortgage interest deduction--a tax expenditure that disproportionately favors the rich--to those with past felony convictions?  If Martha Stewart gets a new home, should she be able to take advantage of this tax break?

Proposals to drug test recipients of unemployment benefits or food stamps have recently resurged in state legislatures.  Unemployment insurance and food stamps are both non-universalistic programs that entail the provision of individuals with state resources in order to help them to reach or re-gain economic self-sufficiency.  And our conservative friends think that they should thus be tested for drugs lest we spend money on those who will use it unwisely or impair their ability to work.  Right?  If that is the case, and if corporations count as people, then should we not have a drug testing policy for the corporations that receive federal bailouts, tax credits, or subsidies?  We should drug test the executives of the banks who received federal bailouts lest they spend that money unwisely or come to work in an impaired state.  We should drug test all farmers who receive crop subsidies and the executives of oil companies that our government subsidizes.  I would be quite intrigued to see how universally they seek to apply their principles.