Another bias: institution-based privilege

The commodification of American justice is nothing new. Those with means have always enjoyed better legal representation in the courts, presuming their wealth failed to shield them from arrest in the first place. Beyond wealth, sociological distinctions have also conferred judicial advantage.

But what we have witnessed lately is, if not new, a particularly nefarious strain of social stratification in our already appallingly economically unequal society, which grants privileged citizens additional protections because of their association with prominent social, economic or political institutions.

Consider how differently the Michael Brown and Ray Rice incidents in the news this past month were adjudicated.

For argument’s sake, let’s assume Mr. Brown stole those cigars shown in a widely disseminated video, menaced the store clerk who tried to stop him and, for good measure, mouthed off to and resisted arrest from Ferguson, Mo., police officer Darren Wilson. With no institutional protections buffering him against the legal system, however, Mr. Brown in his final and fateful moments faced the law in the form a gun barrel aimed at his head. In judicial terms, the six fatal shots Mr. Wilson allegedly fired into Mr. Brown may as well be called “arrest,” “arraignment,” “trial,” “conviction,” “sentencing” and “execution.”

Despite Mr. Rice’s more violent act of beating a woman at an Atlantic City casino — caught on videotape, at that — the wheels of justice churned more deliberately and favorably on his behalf, thanks, it appears, in large part to intervention by the Baltimore Ravens and the National Football League. Mr. Rice, a Ravens running back who has since been let go, was allowed to avoid a trial in his criminal case — and possible conviction for aggravated assault — and instead enter an intervention program that could clear his record if successfully completed.

The differences in treatment for Messrs. Rice and Brown cannot be attributed to race or gender or wealth, even though one man is rich and the other man was poor. Beyond money or celebrity, Mr. Rice appears to have benefited from the status accorded to him because he is — or was, for now — associated with the NFL. New Jersey prosecutors have said they treated Mr. Rice as they would any first-time offender, but that strains credibility.

Indeed, if the commodification of justice were solely determined by wealth, sexual attacks in dorm rooms and military barracks committed by middle-class and poor rapists would be prosecuted in the same manner as those of off-campus perpetrators. They aren’t. Likewise, the Steubenville, Ohio, high school football players who videotaped the rape of a female classmate came from middle-class families, yet they benefitted from their identities as athletes.

Confronted by powerful institutions, it’s easy to understand why police and prosecutors might hesitate to exercise their full legal or judicial authority: Institutions play vital roles in our communities and it might be perfectly reasonable to allow institutional leaders to handle matters internally.

But the widespread failure of college administrators to adequately respond to rape cases, or the fact that the NFLuntil last week had suspended 56 players with records of domestic violence a combined total of just 13 games, suggests that handling matters internally often leads to mis- handling them. Sweeping problems under the carpet is simply too tempting.

Only after the public release of a disturbing video showing Mr. Rice punching Janay Palmer in an elevator did the NFL and Ravens treat the incident as significant. The Ravens released Mr. Rice from his contract, and the NFL suspended him indefinitely, after initially suspending him for just two games.

I’m not sure what to call this phenomenon of institution-based privilege. But by whatever label, it represents an abjectly anti-meritocratic form of social stratification wherein justice is at least partly mediated by an individual’s association with self-interested and self-protecting institutions. For branding or financial reasons, these institutions are predisposed to insulate those in their charge, be they dazzling running backs, star pupils or highly-decorated gunnery sergeants.

Some of us — and as a white male working for a major state university, I include myself — clearly benefit from the implied buffers against the law extended to us courtesy of our institutional identities. This is a form of unequal protection nearly as arbitrary and abhorrent as preferences based on race, gender or wealth. Theft, assault and rape are crimes regardless of where or by whom they are committed.

We remain far from the perfect union to which our Constitution aspires. To get there, we must demand a justice system that’s blind not only to gender, race and socioeconomic status, but also the advantages conferred to some Americans by virtue of their affiliation with powerful institutions.