“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 social identity 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 easy to think 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 inequity in family experiences in the United States. When we talk about families, we are moving far beyond the social construction of the typical nuclear family (as discussed in Chapter 1), and the ways that government and other institutions define “family” for taxes, health care, and other legal rights and responsibilities (as discussed in Chapter 3). 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.

11.3.1 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, or case law, is law that is derived primarily from the court system. 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 ultimately make many decisions before a case even appears before a jury. Judges also make decisions 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, pictured in 11.1, the Regional Appeals Courts, and many lower-level courts. The Supreme Court is the highest court in the United States; decisions made by this court affect civil laws and all existing related case law in the country.

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.

Figure 11.1.The Supreme Court as composed June 30, 2022 to present.

Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson.

We will discuss the social construction of justice and criminality in the United States, and we will include aspects of the court system, government, and 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, “paying a 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.

The answers can also 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 (National Center for Drug Abuse Statistics, 2019). 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 social construction 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 (Grinspoon, 2020). 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 socially constructed difference of identities.

11.3.2 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 discrimination 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 (Figure 11.2). These laws lasted for about 100 years until the Civil Rights Act was signed in 1968.

Figure 11.2. Many spaces and services were explicitly or implicitly segregated.

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 (Figure 11.3). These actions are intended to keep people from harassing or harming them (Futterman & Minsberg, 2020).

Figure 11.3. Silhouettes of three runners on a city street.

11.3.3 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 (Figure 11.4). 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.

Figure 11.4. About half of the adults in the U.S. have had a family member incarcerated for one or more nights in prison.

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 12-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.

11.3.6 References

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