On “Equal Justice Under Law” for People with Criminal Records

There is no Founding Father or constitutional support for the notion of “equal justice under law.” An architect made it up. But this aspiration is engraved on the front of the United States Supreme Court and on countless other courthouses nationwide. So, it must mean something.

Viscerally, in this context, we might think “Equal justice under law” should mean that people with criminal records can proceed with their post-sentence lives on a level playing field. But that’s not the case.  We need far more equality than now exists in the myriad circumstances that confront those who have paid their dues, reenter society and who attempt to live fulfilling lives in the pursuit of happiness.

There are far more clear answers for what equal justice under law is not, than what it is. There are horrendous challenges, particularly in the way law is crafted and the way the rule of law is applied to people with criminal records, but mostly to felons. We give much lip service to blind justice, which theoretically means our application of law is universal and equal. But, while the “application” of the law must be as universal and as equal as possible, even in its equal application as universal, law can remain a tool of discrimination. Often (not always), the appeal to the universal both presumes and replicates the forms of difference to which it applies.

When reminded of our history of disenfranchisement of criminals (including voting and employment exclusions), we see how the problem of racist and classist laws is seldom that they aren’t equally written and applied. Poll taxes and literacy tests are good examples, actually. These laws were carefully written to be “color-blind” in their form and application. A huge problem with most laws that bear on disenfranchisement is precisely that they have failed and continue to fail to take into account difference. These laws did and do their work “through” the equal application of the law to an unequal population.

This is Grand Canyon between “justice” and “law.” We can feel good chanting the mantra of “equal justice under law” as an aspiration, because there is such a thing. The problem, however, is often that equal justice might not be possible through law on its own.

One lesson to take from disenfranchisement in all its forms, is the limit of the law to rectify both historical and current practices that adversely effect economic, educational, and political opportunities. Disenfranchisement knows no race or class boundaries, but it’s impact in all forms, does have a concentrated effect, and reproduces a whole series of boundaries. Especially in a country (and city) like Chicago, where class, race, gender, and sexuality have all been mutually defined through the use of criminalization over time.

We can be impassioned and maybe even unduly optimistic about the notion of advancing “equal justice under law” for felons, but we should be circumspect given the counsel of history. We can embrace projects of universal application of equal laws, but the likely and endless struggle will likely be that just “getting the law right” will be insufficient to end classism, racism, sexism, and the like.

So, we have our well-advised hesitations. This is not easy work.