It’s up to all of us—Black, white, everyone—no matter how well-meaning we think we might be, to do the honest, uncomfortable work of rooting it out. It starts with self-examination and listening to those whose lives are different from our own. It ends with justice, compassion, and empathy that manifests in our lives and on our streets. –Michelle Obama, J.D.
Your affects your experience with justice, how you understand what justice is, and how you will respond to this chapter, and this textbook, which is written with an equity lens. It is appealing to think that we live in a country where every family has equitable access to opportunity, representation, and justice, but we must recognize the ways in which justice is distributed unevenly. Justice is typically defined as equal access or opportunity, equal treatment, and equal rights.
It is the intent of this chapter, and of this text, to uncover the ways in which representation and justice contribute to in family experiences in the United States. When we talk about families, we are moving far beyond the social construction of the typical family and the ways that government and other institutions define “family” for taxes, health care, and other legal rights and responsibilities. We are including all the ways that people define their own families. It is our aspirational goal to inspire readers to understand injustice more deeply and to advocate and contribute to changes toward greater equity for families in the United States.
The Social Construction of Justice and Criminality
Flowing from the representation via elected officials is the common law system of justice generally in use in the United States. Common law (aka case law) is law that is derived primarily from the court system, meaning that when a case is tried and decided in a court it can affect civil law, those laws that are created by governing bodies such as state legislatures and the federal congress.
The level a particular court holds will affect whether counties, states, or the whole country will see a change in law based on the decision. Who makes those court decisions? While juries are involved in some cases, judges are the ultimate arbiters, as they make many decisions before a case even appears before a jury, as well as decisions all along the way about what evidence, witnesses, and motions will be allowed. Many cases are decided by a single judge or a panel of judges, without a jury. This is true to the United States Supreme Court, the Regional Appeals Courts, and many lower-level courts. Who judges are, their experiences, their beliefs, and their backgrounds have a big impact on all citizens of the United States. Judges in the United States must meet requirements such as having a Juris Doctorate (law degree), passing the bar exam, and practicing law. Judges may be elected or appointed depending on the governing regulations of the county, state, circuit, or federal system. Appointments are made by elected officials (e.g. the President of the United States appoints federal justices and then The Senate must confirm that appointment in order for it to be official). As you can see, the system of common law comes back to elected officials, and participation of residents in the United States.
We will discuss the social construction of justice and criminality in the United States, and we will include aspects of the court system, the government, and the criminal justice system for our examples. If you would like to more clearly understand the structure and interrelationships of these systems, these openly licensed and free texts are useful:
- American Government – 2e from the University of Oklahoma
- Introduction to the American Criminal Justice System from Southern Oregon University
Like every system created by human beings, the justice system, and what is considered to be criminal, is a social construction. We have created and defined structures, roles, and institutions that we tacitly agree to abide by. Ideas such as “justice” “rehabilitation,” “debt to society,” and “criminality” all have definitions that have changed over time and location. For example, let’s look briefly at the plant marijuana which is frequently dried to be smoked, has oil extracted, or is otherwise ingested or applied. Is it a valuable medicine? Is it an illegal drug? Is it bad for you? Is it a comparable form of recreation to alcohol? Is it an essential service in the time of COVID-19? Are you a criminal if you use it? The answers to these questions vary based on location (federal, state, and county laws) and over time. They vary based on your profession and employer. Currently, it is legal in 33 states to use marijuana for medical purposes, and it is also legal for recreational purposes in 11 states, including Oregon. But its use is also considered to be criminal; cannabis over 0.3% THC continues to be completely illegal under the federal Controlled Substances Act of 1970. The increased legislative activity around marijuana between 2009 and the present day illustrates the very complicated relationship between federal and state governments and that the of marijuana is in contention. For recent history and up-to-date changes, consult the Cannabis in the United States Wikipedia page here.
Cannabis flowers contain many different psychoactive compounds that are used for recreational or medicinal purposes. The plant goes by many different names: marijuana, pot, weed, dope, Mary Jane, etc. The bud is usually either crumbled up and smoked or mixed with food into an edible.
From this example, you can see how a social construction can determine whether something (in this case, a plant) is perceived to be criminal, medicinal, or recreational. The most common use of marijuana for medical reasons is for chronic pain control which has been found to be effective for millions of Americans. Based on location, someone who uses this plant medicinally may be branded a criminal rather than a patient treating a medical problem. We will extend this idea to people: how social constructions such as gender, race, poverty, and sexuality translate into justice being interpreted and applied unevenly to different people based on implicit bias and the of identities.
Race, Legal, and Extralegal Justice
We know that the original construction of equality in the United States actually referred to equality amongst White male landowners (as described at the start of this chapter.) The purpose of this textbook is to examine the needs and experiences of current American families, and some exploration of history is helpful for context. There exists a disparity in the United States currently related to criminality and justice. This can be traced back to the poverty, bias, and institutional that Black people have faced not just during slavery, but through post-emancipation Jim Crow Laws, the racial caste system that limited income, wealth accumulation, and rights of African Americans. For example, Black people were limited from using bathrooms, drinking from water fountains, sitting in certain seats in restaurants and transportation, and generally segregated to separate locations in public spaces including libraries and schools. These laws lasted for about 100 years until the Civil Rights Act was signed in 1968.
A result of these laws was the criminalization of everyday actions by Black people, performed in spaces that were either explicitly or implicitly for White people. This resulted in both formal punishment, such as imprisonment, but also the beating and lynching of Black people. Families continued to be broken up, not through slavery, but now through violence, imprisonment, and death for the socially constructed criminality of being in the wrong place or talking with the wrong person. Multiracial interactions were stigmatized, and Black men were consistently punished for any interaction with a White woman. Class, gender, and race intersected in a way that often led to Black men being killed or imprisoned by legal or extralegal means.
In February 2020, Ahmaud Arbery was killed while out jogging. Three men believed that he looked “suspicious” and similar to someone who committed a burglary weeks earlier, armed themselves with a shotgun and a handgun, chased him, and shot him dead. In the New York Times, many Black people who jog to stay fit and relieve stress wrote about the dangers of “running while Black.” They describe staying in parks rather than running on neighborhood streets, wearing brightly colored shirts and shoes to signify that they are joggers, avoiding new areas, and taking care to call out “hello” or “excuse me” in order to signal to people that they are friendly. These actions are intended to keep people from harassing or harming them.
Socioeconomic Status and Incarceration
Organizations such as the American Bar Association and media outlets like The New York Times and The Washington Post have all written extensively about the criminalization of poverty. Many crimes are punished by fees and fines in addition to some kind of incarceration (jail, prison, probation and/or parole sentences). Incarceration affects individuals and families by the loss of autonomy, parenting and family connections, as well as loss of income. Many people will lose their jobs, so that even when they finish a sentence, they are unemployed. Finding employment and housing is more difficult with a criminal record. Add on top of this, there is the payment of fines and fees.
Families with accumulated wealth and higher incomes will be able to pay these fees and fines more quickly than a family that has not accumulated wealth or has a low-paying job. In some states, if interest and additional fees accrue, it can lead to additional incarceration, loss of a driving license, or loss of an occupational license, making it more difficult to earn money with which to pay the fines. This affects the financial, physical, and mental health of families. Examples such as a 12-month sentence for stealing a can of beer, three days in jail for catching a fish offseason, and 22 days in jail for not having enough money to pay fees when appearing in court are cited by the National Public Radio investigation into court fees and the incarceration of poor people who cannot pay them. You can listen to the twelve-minute report here: As Court Fees Rise, The Poor are Paying the Price.
Approximately half of all adults in the United States have had an immediate family member incarcerated for one or more nights in prison, raising incarceration in the United States to the level of a social problem. Incarceration disproportionately impacts low-income families and people of color. Compared to White adults, Black adults are three times more likely to have had a family member incarcerated and Latinx adults are 1.7 times more likely to have had a family member incarcerated for more than one year. Adults with lower household incomes (less than $25,000) are three times more likely than adults with a household income of $100,000 or more to have a family member incarcerated for a year or more.
In the following essay, Human Services major Heather Denherder describes her experience with working through her addiction-associated criminal background and toward her career passion of working with families. Along the way, she uncovered realizations about the role that race plays in her journey.
During my Human Services practicum class, I worked with Justice-involved students (people who have experience with jail, prison, parole, or probation) and I have seen a trend of discrimination. This comes not from anyone working at my site, but their experience when they tell their stories about not being able to find work, housing, and some not being able to go into the field they are interested in because they have a criminal record. Even though they have changed the law and can no longer ask if you have a criminal record on work applications, it still sometimes comes up in the interview.
I myself have a criminal record and when I was deciding what I wanted to do for a career I received a lot of flak not only from people just looking in from the outside, but also from people like my drug counselor who informed me I would never be allowed or certified by the state to work with children, even if I had a degree. I struggled with the thought of getting my degree and then not being able to work in the field I wanted not because I wasn’t equipped to, but because of my bad decision when I was young.
I not only have been able to complete a degree in the field I want to work but I also am approved by the state of Oregon to work with children. Currently, I am working with an educator that has been involved with the justice system. I believe that this has been possible for both of us not just through our own hard work and determination but also because we are White because in the society we live in today we are still the “power” race. I am lucky enough to be working at a site that treats everyone equally and they just want to help everyone no matter what your race is or what your background looks like they want to teach/guide you in being successful as not only a college student but also as a functioning member of society once they have a certificate.
My mentor believes that everyone is capable of change as long as they have the correct tools, support, and know-how to use the tools they have been given. I was listening to one of the students talking about how hard it is for her to even decide what field of study to go into because of her criminal history and that she was told she would never be able to get a job in that field because of her history; she couldn’t decide what or if she even wanted to continue with school, she was crying and felt defeated.
I could definitely relate with her for that was me when I first came back to school I often felt defeated because I felt that the “felon” label was going to follow me the rest of my life. What I know now is even if we are labeled and there is a stigma around the label society has given us that through hard work and determination it can be overcome.
When I was trying to find a placement for the Human Services practicum I could not find one and not because I wasn’t qualified or even because of my felonies but because my release date off parole hadn’t been long enough ago and once again I felt completely defeated. Being open and honest about my past put me right where I needed to be. If you are a minority with a label it can be more difficult to overcome such stigmas. It is all too often that being White has become the most powerful race not only in the workplace but also in the eyes of the law. It is prevalent in the legal system. How many times have you seen or heard about a person of privilege “a White person” committing a crime. I have very rarely heard it was a “White person” that attacked me, instead I hear it was a “person” whereas people of color are usually called out by race or ethnicity, such as a “Black person” attacked me.
In 2009 the statistics for individuals incarcerated as Blacks were six times higher than White males. I know that even though I have been to prison there is a higher chance of me being able to find a job in any field than a minority with the same criminal history as me being able to work. I think that social media and the news do a great job at highlighting the crimes of minorities while brushing the crimes of Whites under the rug. How many serial killers have you seen that are anything but White? I personally can not think of one that isn’t White yet when we think of a murder we think of people of minority and why is that? Social media and the news are huge indicators of what society is going to see and know about. It is sometimes hard for White people to acknowledge that they are in the power position when it comes to race. Being in college, talking with others, and doing research helped me see that White people hold the power in most situations.
The intersections of our social identities will overlap with the identities of those who make the policies and laws, those who enforce them, and those who make the judgments that impact incarceration, parole, probation, and future experiences. Paying attention to these overlaps and attempting to overhaul our systems to correct discrimination that is built into our psyches and our systems will create more equitable opportunity, treatment, and rights for all families.
Licenses and Attributions
Open Content, Shared Previously
Figure 8.1. Photo by the Supreme Court of the United States. Public domain.
Open Content, Original
“Career, Criminality, and Race” by Heather Denherder. License: CC BY-NC-ND 4.0.
- National Center for Drug Abuse Statistics. (2019). Marijuana Incarceration Statistics. Retrieved July 17, 2020, from https://drugabusestatistics.org/marijuana-incarceration/ ↵
- Grinspoon, P. (2020, April 10). Medical marijuana. Harvard Health Publishing. https://www.health.harvard.edu/blog/medical-marijuana-2018011513085 ↵
- Futterman, M. & Minsberg, T. (2020, May 8). After a killing, “running while black” stirs even more anxiety. https://www.nytimes.com/2020/05/08/sports/Ahmaud-Arbery-running.html ↵
A person’s sense of self as defined by and in relation to the combination of social characteristics, roles, and groups to which they belong.
Unfair access or treatment, usually systemic in nature.
A mutual understanding and accepted reality created by members of a society: something that is not determined by biology or the natural world
Hierarchical value is assigned to perceived differences between one socially constructed idea and another. Class, race, and other hierarchies based on social identity are social constructions of difference.
The personal or institutional action of treating people unjustly based on notable characteristics, often related to traits such as race, sex, age, or sexual orientation.