The Crime of Being Poor

part one

by Paul Wright, editor, Prison Legal News

"The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread." -Anatole France

A central part of the mythology of the criminal justice system in the United States is that everyone is treated equally, regardless of his or her race or class. The concept that no one is above the law is a noble one. Like many good ideas, reality usually lags far behind the rhetoric.

Recent years have seen a growing criticism of the criminal justice system on the premise that that the system itself is racist. Proponents of this position support their argument by pointing to statistics that show that black men make up 6 percent of the national population but almost half of the nation's prison population (see David Cole's No Equal Justice for a detailed overview of this position). This is taken as prima facie evidence that the system is inherently racist, at least in its outcome.

No one, it seems, is willing to discuss the role that class plays in determining who does and does not go to prison. If the law prohibits rich and poor alike from stealing bread, and both steal bread, how come only the poor go to prison for doing so? The proponents of the institutional racism theory do not claim that rich blacks and Latinos are being herded into prison and jail in vast numbers, because they are not. And what about the whites in prison? White prisoners tend to share one thing with their black and Hispanic compatriots: poverty. Most prisoners report incomes of less than $8,000 a year in the year prior to coming to prison. A majority were unemployed at the time of their arrest. Tellingly, in a society that measures everything, no government statistics are kept on pre-incarceration earnings and employment histories. Few researchers seem interested in proving the obvious.

Refusing to address the role that class plays in the criminal justice system, and politics in general, makes it all but impossible to address the root causes of two million people behind bars in the US. Race and racism do play a factor, but indirectly. To the extent that blacks and Hispanics are disproportionately poor compared to overall society, they are disproportionately represented in the prison population.

Few studies have examined the correlation between race and class. One of the few that did, (cited in the Elliott Currie's Crime and Punishment in America: Why the Solutions to America's Most Stubborn Social Crisis Have not Worked and What Will), looked at the crime, arrest and incarceration rates in a poor black neighborhood and a poor white neighborhood in Ohio. The not-so-surprising conclusion was that it is the poor, regardless of race, who bear the brunt of the "war on crime," which sounds better than a "war on the poor." This explains why many whites are in prisons and the relative absence of wealthy minorities in prisons and jails.

One of the few recent books to discuss wealthy people accused or convicted of violent crimes is Dominick Dunne's Justice: Crimes, Trials and Punishments, which documents the inherent systemic bias in favor of the wealthy in the criminal justice system. Despite its subject matter and the serious policy implications it raises, it is largely dismissed as a celebrity biography. Dunne, a victims advocate, documents criminals "getting away with murder." This would normally be great fodder for the tough-on-crime crowd. But since the "criminals" in his book are all wealthy, the topic is best ignored. Class looms like a hippopotamus in a swimming pool where all the dinner guests are too polite to mention its existence.

Other authors have given excellent, book length expositions of how corporate crime is rarely policed and lightly punished when it is. (See George Winslow's Capital Crimes and Jeff Reiman's The Rich Get Richer and the Poor Get Prison, both books are excellent and highly recommended).

The unspoken reality is that in America today there exist two systems of criminal justice. One for the wealthy, which includes kid-glove investigations, lackluster prosecutions, drug treatment, light sentences and easy, if any, prison time. The other, for the poor, is one of paramilitary policing, aggressive prosecution, harsh mandatory sentences, and hard time. Wealth, and the political connections inherent to wealth, is the determining factor in deciding which system one gets. This is most obvious when wealthy hip-hop artists and athletes, many of them black, are charged with serious crimes. Class trumps race every time, even if the wealth is newly found.

It has been said that America has the best criminal justice system that money can buy. For the most part, the obvious corruption of third world banana republics, with cash exchanging hands for not-guilty verdicts, is not present in the American justice system. Instead, we have the class-biased judge or prosecutor, who is the legal equivalent of going to the casino where the odds inherently favor the house and are unlikely to change.

The most seminal event in the criminal justice system in recent years was the trial and acquittal of O.J. Simpson in Los Angeles for the alleged murder of his ex-wife Nicole and her friend Ron Goldman. Regardless of Simpson's guilt or innocence, the trial clearly showed that class trumps race when it comes to the criminal justice system. At each step of the proceedings Simpson was able to obtain different treatment and results than he would have had he been penniless. This ranged from the obvious (the "dream team" of lawyers who represented him) to the not so obvious (the prosecution's decision not to seek the death penalty).

The government has virtually unlimited resources to investigate and prosecute those crimes it chooses to pursue. An indigent defendant with a low-bid court-appointed attorney with no resources for expert witnesses or investigators is simply being "processed" through the courts and into prison, not defended. It has been estimated that O.J. Simpson spent between $3-5 million on his defense. That is what it takes to level the playing field in a serious criminal case. It is also beyond the reach of all but the wealthiest of criminal defendants.

Wealthy defendants frequently come from the same social strata and share friends and acquaintances with prosecutors. State prosecutors are all elected officials and as such they rely on campaign donations to get elected. The same goes for judges in most states. Does a wealthy campaign contributor get prosecuted or judged differently if accused of a crime, compared with the poor and politically unconnected? Judges and prosecutors claim there is no difference. Just as legislators claim that major campaign donors get no special treatment.

After more than 16 years in prison I have yet to meet anyone who was wealthy when they were convicted. I long ago concluded that what people did, in the way of crimes, had no bearing on whether they came to prison. Wealth is the determining factor. Some may disagree with this assessment and insist it is the criminal conduct of the poor that leads to our incarceration but the evidence indicates otherwise.

For the purposes of this article I am not going to discuss rich people accused of crimes for which they were later acquitted. Instead, I want to focus on wealthy people who are convicted of crimes, especially violent crimes, and note their experience in the criminal justice system. At this point, guilt is not in doubt or question.

My research assistant for this article, Thomas Sellman, commented that his computer database search criteria of "violent crime" and "light sentence" invariably turned up "wealthy defendant." Imagine that.

Guilty of Murder, Go to Jail, Maybe

Susan Cummings is a billionaire heiress. Her father, Sam Cummings, was a global arms trader who made his fortune selling weapons to guerrillas, dictators and despots allied with the United States before he died in 1998. On September 7, 1997, Susan shot and killed her lover, Argentine polo player Roberto Villegas, 38, in the kitchen of her 350 acre estate in Warrenton, Virginia. Eventually she was charged with first degree murder after police determined that she had shot Villegas four times while he was sitting down and that she had planted a knife near his body to make it appear as if he had attacked her.

On May 13, 1998, Cummings, 35, was convicted of voluntary manslaughter by a Faquier County jury and sentenced to a whopping sixty days in jail. Defense attorney Blair Howard was overjoyed at the verdict and commented it was the lowest sentence for manslaughter he had heard of. Cummings was also fined $2,500 for the killing. The jury rejected Cummings claim of self-defense but apparently was swayed by her claim that Villegas was abusive.

J. Gregory Ashwell, a county prosecutor, said, "For the longest time, we had a reputation of being pretty darn tough on criminal activity.... This verdict [Cummings] has pretty much cast a shadow on that." Just how tough is Fauquier County? The year before Cummings' trial Ashwell successfully prosecuted a man for killing a cow. The cow killer was sentenced to nine months in jail, seven more than Cummings. A woman who shoplifted a back scratcher got 135 days; a car thief five years; a purse thief 15 months and a man who fired into an empty dwelling got two years.

For her part, with good behavior in jail, Cummings was released after serving 51 days of her 60-day jail sentence. Lest she be bothered by the riff raff, the sheriff sent all five of the other women prisoners in the jail to other counties to be housed so that Cummings could have the entire women's section of the jail to herself while incarcerated. Whistleblower guards told media that Cummings received special treatment no other prisoners received: unlimited visits from friends and family, food from restaurants, etc.

But at least Cummings went to jail. In 1986 Dallas, Texas lawyer John Curtis shot fellow lawyer Bill Perrin nine times in his office. Perrin died. Alan Galichia was a client in the office who witnessed the shooting. At trial he testified that Curtis had terrorized Perrin and himself with a pistol for 30 minutes before opening fire on Perrin for no reason. In 1987 a jury convicted Curtis of murder.

Curtis faced a sentence of up to 99 years in prison, but the jury only sentenced Curtis to ten years probation based on his lawyer's argument that Curtis would be disbarred from the practice of law due to the felony conviction.

As it turned out, Curtis only had his license to practice law suspended for five years. All told, Curtis only spent three years on probation and paid a $10,000 fine for killing Perrin. Curtis had argued he could not practice law while on probation and that he needed to resume his legal practice to pay restitution to Perrin's widow. However, state law did not allow judges to impose restitution until 1993, and Curtis never paid a penny of restitution to Perrin's family. At the time of the murder, Curtis was a highly successful lawyer who owned a luxurious home and a 1,000-acre ranch in East Texas. By 1996 when the Dallas Morning News reported on his comeback, Curtis once again had a thriving law practice.

Texas is known worldwide as the execution capital of America, where poor criminals are killed on an assembly line of death. Yet co-existing with the same harshness that makes Texas the nation's executioner, is a system of laws that allow the wealthy to escape punishment.

To be continued next issue.

Sources for parts one and two: New Times, New York Times, Richmond Times Dispatch, Washington Post, Dallas Morning News, National Law Journal, Washington Times, Baltimore Sun, Palm Beach Post, Charleston Gazette, San Francisco Chronicle, St.Petersburg Times, St. Louis Post Dispatch, Newsday, Los Angeles Times, Rolling Stone, FAMM-Gram, Atlanta Journal Constitution, North Coast Xpress, New Yorker, Seattle Times.

Special thanks to Thomas Sellman for research assistance in this article. This article originally appeared in longer version in the June 2003 issue of Prison Legal News It was condensed and reprinted with permission from the author. See www.prisonlegalnews.org for the complete version.

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