can be no healing without pardon’83 – a principle denied to the 7.3 million Americans on probation, behind bars, and on parole.
It’s a familiar pattern. The evidence for crimes committed under the recent Bush administration, for instance, is overwhelming, well documented and widely accepted. Few now deny that persistent lawbreaking took place, including the authorisation of torture, imprisonment without trial, the kidnapping and disappearing of detainees, warrantless domestic spying, the destruction of incriminating evidence and an illegal war. In 2014, former top US counter-terrorism official Richard Clarke, who served under the Bush administration before resigning following the 2003 invasion of Iraq, said he believes that Bush and his administration are guilty of war crimes for launching the invasion.84 Yet, neither George Bush nor his partner in war, Tony Blair, has faced any criminal charges.
As a presidential candidate, Barack Obama passionately declared his support for the rule of law, claiming he was open to investigating and prosecuting Bush-era crimes, but, once elected, his rhetoric quickly changed to support the view that ‘we need to look forward as opposed to looking backward’ – a principle he has not extended to the 2 million inmates that crowd his nation’s prisons, the illegally held captives of Guantanamo Bay, or the whistleblowers Chelsea Manning and Edward Snowden.85 Obama has blocked every attempt to conduct an investigation into his predecessor’s actions.
The 2008 financial crash was caused by fraudulent activity on an incredible scale. This is now widely acknowledged, even by long-time defender of Wall Street, Alan Greenspan, ex-Chairman of the Federal Reserve, who described the financial sector’s behaviour as ‘just plain fraud’.86 Their actions have had an unimaginably negative impact on the lives of millions of people but – to date – not a single senior American or British banking executive has been placed behind bars. Instead, those responsible for the crash in the US received over $700 billion of public money with no strings attached; their counterparts in the UK were granted a £1.3 trillion rescue package. Some American states did try to take legal action against the banks, but the Obama administration fought hard against these attempts.87 A number of banks were found to have lied in court, not once or twice but hundreds of times, yet no bank officials were sent to prison.88
The multinational insurance company AIG is a case in point. The same executives who presided over the fraudulent transactions that led to its demise – one that was only averted with taxpayer’s money – were soon pocketing millions of dollars in bonuses. In the face of public pressure, Obama claimed there was nothing he could do. Defending his boss, Obama’s economic adviser Larry Summers claimed, without a hint of irony, that ‘We are a country of law. There are contracts. The government cannot just abrogate contracts.’89 Later, in 2010, commenting on the $17 million bonus given to Jamie Dimon of JP Morgan Chase and the $9 million bonus paid to Lloyd Blankfein of Goldman Sachs – both banks that were recipients of the billion dollar bail-out – Obama declared that ‘I know both those guys; they are very savvy businessmen’ and ‘I, like most of the American people, don’t begrudge people success or wealth. That is part of the free-market system.’90 Of course, this had little to do with the ‘free market’. These banks would not have survived but for the government bail-out. As many have observed, the financial sector has managed to privatise profits while socialising risk: the rich take home the winnings while the poor are forced to cover the losses.
In the UK in 2014, two RBS bankers who were found guilty of £3 million worth of property fraud walked free after Judge Rebecca Poulet QC decided they had ‘suffered’ enough already, having ‘expressed shame and embarrassment’ at what they had done.91 Matt Taibbi, an American journalist who has spent years exposing the crimes of Wall Street, writes that ‘Even in the most abject and horrific cases – such as the scandal surrounding HSBC, which admitted to laundering more than $800m for central and South American drug cartels – no individual ever has to do a day in jail or pay so much as a cent in fines.’ Taibbi often asked officials why there were no criminal cases. ‘Well, they’re not crime crimes,’ was an answer one prosecutor gave him. Taibbi continued, ‘When I asked another why no one went to jail in the HSBC narco-laundering case, given that our prisons were teeming with people who’d sold small quantities of drugs, he answered: “Have you been to a jail? Those places are dangerous!’’’92
The truth is that inequality outside the confines of the courtroom eviscerates the equality within it. Steal a car and you end up in jail. Destroy the global economy and you are rewarded with billions of dollars. ‘Too big to fail’ becomes ‘too big to jail’. The reason is clear: banks, along with most large industries, spend millions of dollars lobbying and funding political parties. Roughly 3,000 lobbyists in Washington work on behalf of the financial sector. Since 1997, the banks have spent more than $3.6 billion lobbying the government. Over this period, bank profits have soared. In effect, the money spent on lobbying and campaign funding bought the deregulation that allowed the crisis to occur and, later, the influence to avoid paying for it. Perhaps even more significant is the revolving door between finance and politics. Executives from the financial sector are routinely granted top governmental roles as advisers, regulators and policy-makers while government officials are regularly given top jobs in the banking sector after leaving public office.
The influence we have over the formation of the law, the burden it places upon us, and our ability to defend ourselves from it, depend on the wealth and power we already possess. Large corporations routinely spend millions of dollars on political lobbying, the creation of think tanks, and the funding of political parties to induce governments to pass laws that protect their interests. In court, wealth continues to bring its advantages. It costs money to defend ourselves, and more money buys a better defence. Legal aid can go some way to levelling the playing field but it is often under-funded (particularly in the US), under attack, and is not available for all cases. Those with plenty of money can endure long and costly legal battles and, in some instances, escape criminal charges altogether by settling out of court. A standard strategy of corporations, when dealing with less wealthy opponents, is to offer a small sum by way of compensation and then threaten to engage in an expensive and drawn-out legal battle with an uncertain outcome if the offer is not accepted. Walmart has been accused of paying most of its staff less than $10 an hour, pressurising employees to work overtime for no extra pay and routinely locking them in warehouses overnight. Such treatment has led to at least sixty-three lawsuits in forty-two states, all of which Walmart chose to settle out of court for a tiny fraction of the wages it has saved.93 Moreover, because the law is complex and difficult to understand, wealth can buy the expert advice necessary to navigate it successfully and, wherever possible, to exploit its loopholes for personal gain – tax-avoidance being an obvious example.
Though laws may apply equally to all in theory, in practice there is little equality. Prohibiting sleeping under public bridges has no impact on the millionaire but to the homeless traveller it could mean hypothermia and death. A law against stealing bread places no burden on the affluent but a heavy one on those struggling to feed their children. Some laws explicitly target the most vulnerable people. In Florida, for instance, citizens have been banned from sharing food with the homeless. Arnold S. Abbott, a ninety-year-old advocate for the homeless, defied the law and was arrested and threatened with a $500 fine and sixty days in jail.94
The sea of inequality on which the legal system floats makes a mockery of the principle of equal rights before the law. The notion that the law treats all people the same, regardless of race, gender, status or creed, is a much celebrated ideal but, in a society in which the distribution of wealth, power and opportunity are so profoundly unequal, equality before the law is itself unjust. The assumption made by many legal theorists that, with few exceptions, ‘the same rules may be applied to all’ is a fantasy that becomes less justifiable the more unequal society becomes. This was not lost on the third American president, Thomas Jefferson, who said ‘There is nothing more unequal than the equal treatment of unequal people.’95
Private law
Who decides what counts as a crime? Who decides which criminals are held accountable? In 2002, three twelve-year-old British children were playing in the street with plastic toy guns. The game abruptly ended when they were surrounded