“In its majestic equality,” Anatole France wrote, “the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.”

And therein lie the flaws of “equal protection.” (More)

Power, Law, and Equal Protection (Non-Cynical Saturday)

I didn’t set out to write a three-part series this week, but it worked out that way. On Thursday we saw fraternities lobbying to block campus responses to rape, and yesterday we discussed how Indiana’s ‘Religious Freedom Restoration Act’ would more aptly be titled the ‘Religious Sovereign Citizen Act.’

“Everyone’s got a horror story about the police”

The link between those stories is not obvious. Even less obvious is their link to Thursday’s Huffington Post report by Ryan Reilly and Mariah Stewart about the appalling police and court systems in St. Louis County, Missouri:

A number of Ferguson officials have resigned in the wake of the DOJ report, including the police chief, Thomas Jackson, and the municipal court judge, Ronald Brockmeyer. Yet the problems with municipal courts in St. Louis County extend far beyond Ferguson.

In dozens of interviews with The Huffington Post over the past several months, residents have called the system “out of control,” “inhumane,” “crazy,” “racist,” “unprofessional” and “sickening.” Some have told stories of being slapped with large fines for minor violations and threatened with jail if they couldn’t pay.

“Everyone’s got a horror story about the police,” former St. Louis County Police Chief Tim Fitch told HuffPost in a recent interview. “And most of that horror story relates back to being ticketed for some minor violation.”

“Even clothing choices can be a target”

Many of the municipalities in St. Louis County rely on fines for up to a third of their revenue. The county’s 81 municipal courts – governing just 11% of Missouri’s population – account for 34% of fines collected statewide. And as Reilly and Stewart explain, the municipalities appear to write ordinances designed primarily to generate citations and fines:

The reach of these courts extends beyond traffic and parking violations. Some municipalities require occupancy permits for those who live in their jurisdictions, which in practice means people can be fined for sleeping over at their boyfriend or girlfriend’s house. In some municipalities, overgrown grass or failing to subscribe to a designated trash collection service are offenses that can ultimately lead to an arrest record.

Even clothing choices can be a target. Pine Lawn has a municipal code that bans saggy pants. One man received a $50 fine in 2012 for wearing pants that were too big for his waist, according to court documents. After he missed two court dates associated with his fashion crime, he was slapped with two additional $125 fines, and for a time, there was a warrant out for his arrest.

“You’re effectively being punished for being poor”

Those municipal ordinances are, presumably, worded neutrally. That is, I doubt you could find one that required occupancy permits only for people sleeping in lower-income neighborhoods, or prohibited baggy pants only for people of color. Such an ordinance would clearly violate the Fourteenth Amendment’s Equal Protection Clause, as well as the Equal Rights and Opportunity Clause of the Missouri Constitution.

But consider the procedure used in the municipal court of Jennings, Missouri:

On payment docket night in Jennings a few months ago, more than one hundred people, almost all of them black, made their way slowly into the courthouse. After passing through the metal detectors, they filled row after row of courtroom seats, waiting their turn to give the city money.

Not long after court officially began, the doors were locked behind them. Those who arrived late were not let inside. Arrest warrants would be issued for the late-comers and those who failed to show for any reason.

First, court officials called for those who could afford to pay more than $75 toward their outstanding fines to step forward. Next, they called for those who could pay more than $50. Then $40. Then $30. Then $25.

If you owe the city money and can afford to pay $100 or more per month, you can skip this whole process and mail in your payment or pay in person any other time during the month. But the poor must sit through this ordeal for hours, the doors opened occasionally only so that smokers can take a cigarette break. Those who can afford the least are forced to stay the longest.

“The time that you’re in court is directly related to the amount of money you can pay. So if you can pay more money, you get out faster,” said Thomas Harvey of ArchCity Defenders, a pro bono legal group that has crusaded against the practices of St. Louis County’s network of municipal courts, where they represent poor clients. “You’re effectively being punished for being poor.”

“For people like me this system works”

Stories like this put Anatole France’s famous criticism of law’s “majestic equality” in stark relief. They expose a glaring inequality that many Americans never see, Vox’s Sarah Kliff learned in an interview with Thomas Harvey last year:

SK: Why does this system persist? Is it about generating revenue for the city, or something else?

TH: It’s been in place for a long time, and I don’t think it gets questioned. The most charitable reading is that the courts don’t know the impact they’re having on peoples’ lives. For people like me this system works. If I got a traffic ticket I would pay $100 to a lawyer to represent me. I would get my speeding ticket turned into an excessive vehicle noise charge, pay a fine, the lawyer would get paid and the municipality too. It’s the easiest transaction. But if you’re poor, that system hurts you in ways they don’t seem to have considered.

“The law exists to support the interests of the party or class that forms it”

As Harvey concedes, that is “the most charitable reading.” A less charitable reading would invoke critical legal studies:

Critical legal studies (CLS) is a theory that challenges and overturns accepted norms and standards in legal theory and practice. Proponents of this theory believe that logic and structure attributed to the law grow out of the power relationships of the society. The law exists to support the interests of the party or class that forms it and is merely a collection of beliefs and prejudices that legitimize the injustices of society. The wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy. The basic idea of CLS is that the law is politics and it is not neutral or value free.

And here we find the connective tissue for this week’s Morning Feature articles. However neutrally-written a law, it will be enforced by human beings with conscious and unconscious biases. Add to that the disproportionate political influence of wealthy elites and powerful interest groups – such as fraternities demanding criminal burdens of proof for civil campus rape hearings, or Christians demanding that courts apply strict scrutiny when a complaint of “I don’t like that law” concludes with “because of my religion” – and it should not surprise us that mere constitutional guarantees do not ensure equal protection or equal opportunity.

If we value equal protection and equal opportunity, critical legal theory says, we must look beyond the law itself to the power structures in society. Indeed that is the thesis of Joseph Fishkin’s Bottlenecks: A New Theory of Equal Opportunity:

Equal opportunity is a powerful idea, and one with extremely broad appeal in contemporary politics, political theory, and law. But what does it mean? On close examination, the most attractive existing conceptions of equal opportunity turn out to be impossible to achieve in practice, or even in theory. As long as families are free to raise their children differently, no two people’s opportunities will be equal; nor is it possible to disentangle someone’s abilities or talents from her background advantages and disadvantages. Moreover, given different abilities and disabilities, different people need different opportunities, confounding most ways of imagining what counts as “equal.”

This book proposes an entirely new way of thinking about the project of equal opportunity. Instead of focusing on the chimera of literal equalization, we ought to work to broaden the range of opportunities open to people at every stage in life. We can achieve this in part by loosening the bottlenecks that constrain access to opportunities – the narrow places through which people must pass in order to pursue many life paths that open out on the other side.

The St. Louis County municipal court systems create bottlenecks. So do the privileges that campuses have long given to fraternities, and the license to discriminate implicit in ‘religious freedom’ laws.

We can’t reduce those bottlenecks if we focus solely on whether a law is written in neutral language. Indeed that narrow focus guarantees such bottlenecks will continue. To have a meaningful conversation about equal protection and equal opportunity, progressives must also talk about who holds power and how power imbalances are embedded in ‘neutral’ laws.


Happy Saturday!