Despite its age, the Golden Rule remains a pretty good principle for guiding moral behavior: do unto others what you would have them do unto you. Taken seriously, it’s very tough to follow. It means that we have to actually be consistent in our treatment of people, no matter how much we loathe them. We can’t have one standard for people we don’t care about and one standard for people we do; fairness is universal, and applies even to the despised.
If we do accept this, if we think that all people should be treated fairly, then we should be disturbed by what just happened to Anthony Weiner and Martin Shkreli.
Shkreli was convicted in August of securities fraud and had been awaiting sentencing, when a judge revoked his bail and sent him to prison. Shkreli, known for issuing a nonstop stream of insufferable/inscrutable provocations on social media, had offered to pay $5,000 for a strand of Hillary Clinton’s hair, which the judge perceived as an incitement to assault, and declared Shkreli a “danger to society.” He’ll be incarcerated for the months until his sentencing hearing, when he may be given more time. Weiner was sentenced to 21 months in prison for “sexting” with a 15-year-old girl. Having already destroyed (1) his congressional career, (2) his mayoral campaign, (3) his marriage and family life, and (4) his wife’s career, Weiner’s sexting compulsion has now landed him on the sex offender registry.
It would be hard to deny that there is something satisfying about the fates of these two men. Each of them is deeply and truly loathsome. Shkreli is so dislikable that even the sight of his face made it difficult to select an unbiased jury (said one prospective juror during the selection process: “I looked at him, and in my head, that’s a snake — not knowing who he was. I just walked in and looked right at him and that’s a snake.”) He not only price-gouged AIDS drugs, but he seems to be on a personal quest to become the most irritating human being alive. And Weiner, similarly cocky and loudmouthed, has repeatedly engaged in incredibly creepy and disturbing behavior, with seeming disregard for its effects on his family. Prison seems the definition of “comeuppance” for two men who apparently believed themselves immune to consequences.
But nobody should be cheering about the fates of Weiner and Shkreli. America’s prison system is horrific, and sending two more people into it (particularly for nonviolent offenses), however repellent they may be, is in no way just. Watching karma finally have its brutal way with Martin Shkreli, from his being convicted of fraud to being dissed by the Wu Tang Clan, has recently become a pleasurable national pastime (to the point where it’s almost worth coining a term to describe the intense feeling of schadenfreude one gets at watching another misfortune befall Shkreli; “Shkrelenfreude”?) But he is in federal prison for posting something stupid on social media. What happened to Shkreli happens all the time in the justice system: criminal defendants not only suffer consequences for the crimes they are convicted of, but their entire lives are policed. You or I would not want a joke we made about Hillary Clinton on Facebook to land us in a prison cell. In no world should what Shkreli did be grounds for limiting a person’s ability to see sunlight and fresh air. Yet that’s precisely what happened. Of course, Shkreli was one of the lucky ones: he actually got bail. Plenty of people don’t, even those who haven’t even been convicted yet and are legally innocent. But it’s only “luck” by comparison: Shkreli’s jailing is still nothing to cheer.
Anthony Weiner’s punishment is even more disturbing. Weiner very obviously has an addiction. And his addiction has already ruined his life. There’s even an argument that Weiner has it worse than an average person who did what he did: imagine being nationally infamous, having literally everyone who sees you on the street know you as a pervert and a sex criminal. Those of us who criticize sex offender registries do so in part because we object to humiliating “Scarlet letter” justice, and Anthony Weiner has received the ultimate scarlet letter. He hasn’t just been punished with the loss of everything he held dear, but he’s a nationwide figure of ridicule and disdain. Few of us would want to wake up tomorrow and discover we had died and been reincarnated as Anthony Weiner.
That’s not to say that Anthony Weiner’s national prominence should be grounds for leniency. In his case, though, the opposite happened: the judge actually saw Weiner’s fame as a reason to increase his punishment. Judge Denise Cote said it was “very important” that Weiner’s punishment for transfer of obscene materials to a minor should serve as a warning to anyone else considering similar, illicit online activities. “Because of the defendant’s notoriety, gained well before he engaged in this criminal activity, there is intense interest in this prosecution, in his plea, and his sentence, and so there is the opportunity to make a statement that could protect other minors,” she said. “General deterrence is a very significant factor in this sentence.” The judge, then, openly admitted that Weiner partly received the prison sentence because he is famous and it will scare other people, not because it will help rehabilitate him. As the New York Post said, she “needed to make an example of the high-profile pervert”. The judge was very clear about the reasons for such a harsh punishment in the face of evidence that treatment would be a more viable and effective option.
This should shock us. It means that the punishment was not designed to be a fair response to the harm caused by Weiner’s crime, but a “message” to keep other people from doing the same thing. In fact, the punishment is clearly not designed to keep Weiner from reoffending. After all, if “bad consequences” could deter Weiner from sexting, the implosion of his work and family should have done the trick. This is a guy with a compulsion, and people with compulsions need help, yet while the judge acknowledged that Weiner was undergoing treatment for sex addiction, she chose to cancel that treatment in favor of something uselessly harsh. The logic used by the judge in Weiner’s case is the same logic that keeps millions of drug addicts from being given the help they need: judges know that prison helps nobody, but they are more concerned with enforcing the law for its own sake than with reducing the chances that the individual will reoffend. This helps nobody: it doesn’t help the offender, who receives no treatment. And, in a case like Weiner’s, it doesn’t even help the victim, because Weiner isn’t being given the kind of treatment he needs to make sure he doesn’t do this again upon release.
Here is a common refrain one hears when pointing out the unfairness of what happened to Shkreli and Weiner: Look, I hate mass incarceration too, but these guys are lucky. If they had been poor people of color, things would have been a lot worse for them. I don’t shed any tears for smug white creeps who found out their privilege isn’t license to abuse people. I’m fine with these assholes being taught a lesson.
This response is an important one, insofar as it cautions us to spend our time focusing on the worst injustices, and not to make a cause out of the people who have suffered comparatively little. Since we can only draw public attention to a finite number of individuals, it’s a waste to spend time lamenting the fates of Weiner and Shkreli. And let’s be clear, people of color are mashed by the criminal legal system every day. To take just one example (one we have covered here before), Bernard Noble of New Orleans, an African American father of five, was sentenced to thirteen years in a Louisiana penitentiary for possession of two marijuana joints. It’s important to keep overall the focus on people like Noble, who get so little attention despite being the prime victims.
And yet: to the extent that this response suggests that what happened to Weiner and Shkreli was fine, or untroubling, it is inconsistent with a principled opposition to the logic of mass incarceration. Martin Skhreli is now in prison because he posted some dumb comment on Facebook about stealing Hillary Clinton’s hair. Anthony Weiner is an addict and clearly needs serious treatment, yet instead he is just going to be made to suffer gratuitously.
Yes, this is precisely what happens to everyone in the justice system. And it’s unfair when it happens to them, too. Nobody should argue that because Anthony Weiner was a white ex-congressman, he deserves probation and treatment rather than prison. It’s because Anthony Weiner is a person that he deserves compassionate and proportionate punishment, exactly as every other person should be entitled to. It’s true, and tragic, that it’s easier to arouse public sympathy when a famous white person is subjected to excessively harsh punishment than an anonymous person of color. But an injustice is an injustice, no matter who it is done to.
In fact, we should always be careful when discussing issues of “inequality” in the justice system. Because the problem isn’t just “inequality,” it’s punitiveness. You could, for example, fix the racially unequal imposition of death sentences by mandatorily sentencing everyone to death. “Death for all” is a highly egalitarian rule. But it’s also cruel and inhuman. One problem is that, given the same kind of crime, a white defendant is likely to get a lesser sentence than a black defendant. But both sentences can still be unjust. It could be that a black man caught with marijuana in Louisiana will get a 13-year sentence while a white man would get 10 months. But while one of these is clearly far worse, neither of them is acceptable.
It’s true that, if certain populations are suffering disproportionately greater consequences, their situation is the most pressing and should be the focus of the most attention. But it’s also true that if we don’t pay attention to the general issue of punitiveness, we might not make things better for anyone.
Bill Clinton famously promised that he would push to eliminate the infamous “crack-powder sentencing disparity” for cocaine, which was causing (typically) black crack cocaine users to receive far harsher punishment than (typically) white powder cocaine users. Yet Clinton later admitted that the solution he favored was to increase the sentences for powder cocaine, rather than decreasing the sentences for crack cocaine.
According to an “egalitarianism-only” point of view, what happened to Anthony Weiner and Martin Shkreli is actually a good thing. After all, it does mean that even if you’re a rich Wall Street trader or a sleazeball ex-congressman, you’re not above the law. And that’s… sort of good, except that the law in question is still absurdly over-inclined to use incarceration as the remedy for all social ills. Is the amount of justice in the world truly increased by throwing two more people into America’s overstuffed prison system?
This highlights one of the often ignored elements of the rise of mass incarceration – the overall increase in punishment. It’s not just that the war on drugs began making new crimes out of thin air and targeting communities of color for mass jailing. While that’s true, it’s also true that the criminal system, and prosecutors in particular, became more punitive as a whole. Everyone’s sentences increased, even for crimes that had been on the books for a long time, and those who normally would have been able to get off on probation found themselves pleading to sentences of years on minor charges.
The criminal system is racist and unequal. It disproportionately punishes people of color and poor people. That should occupy the bulk of our attention. But if that’s the only thing that we oppose, then we are being short sighted. There is an easy fix to unequal jailing: jail more people. But if that’s not what we want, then we have to apply our principles equally. We must oppose the incarceration of Weiner and Shkreli as much as we oppose the incarceration of Bernard Noble, or the millions of others caught in a viciously harsh criminal justice system. That’s tough, of course. As one commenter observed, Martin Shkreli almost appears to be a fictional character designed to test one’s commitment to prison abolition. But the Golden Rule is pretty clear. It’s not “Do unto Martin Shkreli whatever would wipe that smirk off his face.” We have to do unto him as we think he ought to have done unto others. That means being decent and humane, even to those who are not decent and humane themselves.