Introduction

In the post-modern and multicultural worlds of criminology and criminal

justice characterized by post-structuralism, post-Marxism, post-affirmative
action, and post-feminism, the variables of class, race, and gender remain
fundamental to both theory and practice. After all, the disciplines of
criminology and the fields of criminal justice have always been about the real
and imagined differences between criminals and non-criminals.
Theoretically, explanations of crime and crime control, regardless of
perspective or school of thought, have sought to make sense out of these
differences. In the process of trying to sort out these differences, virtually
every theoretical framework has addressed class and race overtly, and
gender at least covertly. Up until recently, the problem with this line of
inquiry was not only that there had been very little, if any, agreement on the
effects of these three critical variables, but worse yet, folks were still
debating whether or not these variables matter.
By the turn of the 21st century, however, a growing number of criminologists
from several orientations, including but not limited to critical, feminist,
Marxist, positivist, and integrative, had come to appreciate, in different yet
related ways, that class, race, and gender matter. Today, many inquiries are
interested in finding out just how exactly class, race, and gender matter in
the production of crime and criminal justice. Some inquiries focus on class,
race, and gender as autonomous variables. Some inquiries focus on these
three variables as inter-related. Of course, key questions on the complexities
of these relations and on the means of exploring them still remain. And even
though the ways of seeing difference or of approaching class, race, and
gender vary, there is certainly an emerging consensus on the importance of
these three variables, and increasingly, on the intersections between them or
on their interactive or reciprocal relationships.
In fact, it is my contention that in present-day criminology and criminal
justice, there are at least four approaches to the study of class, race, and
gender: (1) quantitative studies; (2) time and place studies; (3)
ethnographic studies, and (4) social construction studies. These approaches
are part and parcel of older and newer traditions in the study of crime and
criminal justice. At the same time, they are also reflective or representative,
over the last twenty years or so, of larger movements in academia to
distance itself from both essentialism and determinism. Finally, each of these
approaches is capable, more or less, of studying class and crime, race and
crime, or gender and crime as separate or related phenomena. Whether or

not class, race, and gender are studied in isolation or in relation to each
other, depends to a very large extent on the kinds of questions that are
asked by each of these approaches. When class, race, and gender are
studied together, the way they are linked or connected will also depend on
the questions asked. The traditional rule under the common law is that an
appellate court may not review a sentence that the trial court has imposed if it is
within statutory guidelines.' Since the legislature establishes narcotics laws, this
rule effectively leaves the question of proportionate punishment for narcotics
violations within the purview of politicians.2 In the context of the War on Drugs and
a political climate bent on being "tough on crime," which incentivizes greater
penalties for certain criminal offenses, the political element removes the query as to
whether a penalty is proportionate and replaces it with an imperative to ramp up
penalties.
However, there is a small but growing trend to move away from strict application of
the common law rule, even where the statute does not authorize appellate sentence
review.4 Nor is this a new trend, as the case law demonstrates. A generation ago, in
People v. Thomas, an appellate court held that a state statute prescribing a
sentence of fifteen years without the possibility of parole for a third felony drug
conviction violated California's constitutional right to be free from cruel and unusual
punishment.5 Courts that depart from the common law rule discuss amorphous
standards such as "shockingly disproportionate" and "clear abuse of discretion," and
may resort to comparing the penalties for offences of similar gravity in making their
determination.6
There has been much professional and academic discussion about sentencing
guidelines fueled by the strong concern that drug sentences may be overly harsh.7
The conflict may be characterized as majoritarian (legislatures passing popular
crime laws) versus counter-majoritarian (judges challenging legislative power to
achieve what they consider fairer results).8 In short, this Comment argues that the
movement away from the common law in sentencing for narcotics and other
stigmatic crimes signals judicial dissatisfaction with legislative decision-making, and
represents a form of institutional protest, the continued and expanded efforts of
which may play a major role in achieving a rational drug criminal policy.
This discussion also concerns itself with the implications of expanding the role of
appellate sentence review. Insofar as a greater role for the courts comes at the
expense of a lesser role for the legislatures, certain separation of powers questions
arise that must be addressed in a government of checks and balances, namely: (1)
Is legislative power weakened unconstitutionally?; (2) Do the courts possess
manageable standards by which to assess the appropriateness of sentences?; (3)
Does a greater role for the courts in this area cause legitimate concern about a
slippery slope in criminal cases where sentences have not generally been thought
excessive?; and (4) Given the importance of criminal sentences as a badge of
societal opprobrium, does appellate sentence review unfairly deprive the citizenry
of its voice in making public its disapproval of conduct?
These difficult questions rarely square up with easy solutions in the form of brightline rules. For those who subscribe to a formal understanding of the separation of
powers, the practice of appellate sentence review may be fairly characterized as a

usurpation of democratic power.9 For others, more concerned with the functional
aspects of a government of checks and balances, the current lack of incentive for
the legislature to act highlights a breach in effective government, calling for an
effective solution or at least a means to such a solution.

The four ways of seeing difference in the social relations of class, race, and
gender that have been described as characteristic of criminology and
criminal justice are, of course, ideal types or social constructs themselves.
As a proponent of integrative criminology and as one who has advocated for
integrating the different criminologies, there are no hard and fast boundaries
between the four approaches (Barak 1998). As most social and behavioral
scientists of crime and justice would agree, using a variety of methods to
validate any phenomenon is generally better than using only one method. By
way of discussion and closure, let me try to share some of the thinking
behind Barak, Flavin, and Leightons forthcoming book, Class, Race, Gender,
and Crime: Social Realities of Justice in America (2001).
To begin with, we regard the criminal justice system as a culturally powerful,
label-conferring institution that has evolved in relation to the changing
definitions of crime over time. Additionally, we view the defining of crime
and criminals as a product of moral agents, social movements, political
interests, and media dissemination. In other words, what becomes a crime
and who becomes a criminal are politically, economically, and socially
constructed phenomena, reproduced daily through various discussions in the
streets, the home, the school, the church, the government, the courts, the
airwaves, and the other cultural bodies. Finally, we approach crime and
justice from historically developing standpoints of class, race, and gender
as these undergo social construction.
When we specifically examine class, race, and gender in relationship to law,
order, and crime control, on the one hand, we appreciate the unique
histories of these social groupings both in isolation and in combination, and
on the other hand, we appreciate the way these different social attributes
and cultural constructions represent interrelated axes of privilege and
inequality. At any moment, class, race, and gender may feel more salient or
meaningful in a given persons life, but they are overlapping and cumulative
in their effects on peoples experience (Andersen and Hill Collins 1998: 3).
As we historically demonstrate in our book, in terms of the social realities of
justice in America, the experiences of diverse groups of people in society
have contributed to the shaping of the types of criminals and victims that we
have had. Like Andersen and Hill Collins (1998: 4) in their discussion of what
they refer to as a matrix of domination, we too conceive that class, race,
and gender represent multiple, interlocking levels of domination that stem

from the societal configurations of these structural relationships. These

patterned actions, in turn, affect [ing] individual consciousness, group
interaction, and individual and group access to institutional power and
privileges.
For example, Roberts (1993) in her examination of the intersections of
crime, race, and reproduction, discusses the convergence between the racial
construction of crime and the use of reproduction as an instrument of
punishment. She has argued that the technology of power that links crime,
race, and reproduction epitomizes how racism and patriarchy function as
mutually reinforcing systems of domination that help to determine who the
criminals are, what constitutes a crime, and which crimes society treats
most seriously (Roberts 1993: 1945). More specifically, in terms of
abortion, birth control, and social control, Roberts discusses how this
domination is meted out through the control of black womens bodies that
discourage procreation, subordinate groups, and regulate fertility. As part of
our integrative analysis of class, race, and gender, we similarly attempt to
explore how each of these hierarchies helps to sustain the others, and how
these reinforce the types of crimes and justice we have in society.
More generally, we bring at least four related assumptions to our study in
the social relations of class, race, gender, and crime control:
First, that each of these categories of social difference share similarities and
dissimilarities of justice, especially as these relate to power resources and to
the allocation and distribution of rewards and punishments in society.
Second, that the systems of privilege and inequality derived from the social
statuses of class, race, and gender, share distinct as well as integrative, or
overlapping and accumulating, affects on the type of crime control that
various groups of people receive.
Third, that there are connections and linkages between these systems of
difference, inequality, and privilege as each, separately and together, helps
reproduce the social divisions of hierarchy and stratification that dynamically
affect peoples life experiences, inside and outside, the criminal justice
system.
Fourth, that systems of crime control socially construct selectively enforced
and differentially applied norms to social groups, according to relationships
of power, status, and authority.
Historically, we know that the legal differences favoring corporations over
individuals, workers, and consumers, or the wealthy over the middle,

working, and poor classes, have remained fairly constant over time despite
efforts to regulate and control monopolies of wealth or to assist povertys
destitute. During the 20th century, we recognize that, on the one hand, the
more blatant forms of discrimination based on alleged differences of race,
ethnicity, and gender, have been significantly reduced in the United States.
On the other hand, we also recognize that although the legalized and
institutionalized forms of bias have been reformed and abolished by law,
that, in practice, differential treatment based on race and gender still
persists. Hence, in terms of the operations of crime control, poor persons
still have fewer resources or less power working for them in negotiating
outcomes within and without the criminal justice system than the affluent or
middle classes. And, when poor persons are of color or are female too, they
usually hold even less power, and if they are all three-poor, of color, and
female-then they typically possess lesser power still.
Our study is not an ethnographic study of victims or victimizers, but rather
its an analytical investigation into the institutionalized practices and
outcomes of crime control. Nevertheless, we share the insights and the
desires of Madriz and Totten to unravel the complexities of class, race, and
gender as these interact with the cultural production of crime, justice, and
inequality. We also share their critical view that crime, justice, and crime
control cannot be separated from the totality of the ordered, structural, and
cultural contexts of their productivity. Each of our cultural approaches holds
that the inequalities in control and justice are part and parcel of the social
constructions of class, race, and gender differences, as these are
experienced in relationship to place, order, conflict, and perception.
Moreover, social perceptions of what constitutes unacceptable social injuries
and acceptable social controls are shaped by the underlying elements of
social organization, or by the production and distribution of economic,
political, and cultural services (Michalowski 1985). Following Antonio Gramsci
(1971), we are not talking about conspiracies of elites and decision-makers
here, but rather, we are referring to agreed upon definitions of harms and
injuries, pains and sufferings, and crimes and punishments that reflect
capitalist political-economic relations and interests. Hence, in the final
judgment serious crime defined from above or below, from the suite to the
street, and from the official reports of the Federal Bureau of Investigation to
the cultural media, all become statistically mediated and socially constructed
phenomena.
In culturally generated numbers, narratives, and pictures alike, a distorted
view and limited perception of harmful behavior emerges. Crimes and
criminals are restricted primarily to the tabulations and representations of
conventional criminal code violations, such as homicide, rape, burglary,

robbery, theft, and less often, assault. From a comparative perspective,

whatare traditionally omitted from these images and narratives of justice are
two things: from below, the grossly under-reported and/or hidden crimes,
such as the trafficking and possession in stolen merchandise, illicit sex,
gambling, loan sharking, internal pilferage, and less so, the smuggling of
weapons; and from above, the severely ignored and invisible crimes, such as
the frauds and embezzlements of white-collar and professional criminals as
well as numerous corporate offenses against the environment, workplace,
and consumer.
Just as these materially and culturally produced images of crime and
criminals leave impressions that reinforce one-dimensional notions that
criminality and harmful behavior are exclusively the responsibility of the poor
and marginal members of society, the material and cultural images of crime
control and the administration of justice leave impressions that reproduce
limiting social realities of social control and crime prevention. As mass
consumers, for example, we all share a virtual reality of mediated facsimiles
of lawbreakers and crime-fighters. Common narratives or stories of crime
and criminal justice appear and reappear so often in the news, in films, in
television, in literature, and in popular discourse, that most Americans
imagine similar renderings of crime, criminals, law enforcement,
adjudication, punishment, and so forth.
Is it no wonder that when people try to picture the typical American crime,
the common images that emerge are of mostly young victimizers and
victims of color? In repetitive news stories, African American and Hispanic
male youths in particular, have been encountered in pools of blood lying
dead, victims of so-called random or senseless violence. There are also
the numerous police action reenactments that can be viewed regularly on
such television programs as Top Cops or Americas Most Wanted, that
similarly recycle images of these young men as dangerous drug dealers
whose dwellings must be invaded during the early hours of dawn by storm
trooper police and other law enforcement personnel, in order to secure the
war on crime. In like fashion, the images of crime control that are
constructed throughout the criminal justice system as we move from law
enforcement to adjudication and from sentencing to incarceration, again
serve to reinforce limited and fairly biased portrayals of the realities of
criminal justice in America.
When we imagine a criminal courtroom, for example, images come to mind
from relatively long and involved trials, exposed either in feature length
films, or from Court Televisions gavel-to-gavel coverage of such celebrated
trials as the murder conviction of Sandy Murphy and Rich Tablish for killing
multi-millionaire and former Las Vegas casino owner, Ted Binion, in

September 1998. The actual trial of these two sympathetic murderers did
not convene until February, 2000, and ended in May with both of them
receiving the minimum sentences for murder that the state of Nevada
permits. At the same time, the public is led to believe, based on very
succinct and curt shots of highly charged courtroom scenes from various
television series like The Practice and Law and Order, that competent
attorneys for each side are present and engaged in vigorous battle, always
doing their best to secure justice for all. In these fictional and non-fictional
dramatizations, the images that do not come to mind are the ones where the
rights of defendants have been all but eliminated. Reference is made to the
overwhelming majority of criminal cases, 90 percent, that are pleabargained everyday in courthouses throughout the nation. These negotiated
deals in lieu of trials usually take less than a few minutes for judges and
courts to process and uphold.
Moving from adjudication to punishment, popular images come to mind of
dangerously violent offenders who need to be locked up indefinitely. Such
pictures make unimaginable the possibility of ever re-aligning the offender,
the victim, and the community. As part of the politics of American
punishment and the political economy of incarceration, the languages and
images of retribution serve to negate efforts in the rehabilitation of people
while they reproduce the United States 100 billion dollar a year criminal
justice-industrial complex (Shelden 1999). Overall, the representations of
offenders depict feuding convicts divided into racial and religious cliques
doing scared time, with young and inexperienced inmates guarding their
derrieres from sexual predators, rather than images of residents engaged in
school or a vocation, and of former offenders fitting back into society.
Lastly, the award winning HBO dramatic series of life in a maximum security
prison, OZ, portrays a based-on-facts fictional account of the complexity of
one of those hell on earth holes or archipelagos. On the one hand, such
representation ignores the social realities of some 1500 other state and
federal prisons of less severity and pain. On the other hand, OZ does not do
justice to the growing apartheid like conditions of crime and punishment that
disproportionately affects black and brown Americans. At the same time,
commercially successful prison films, like Lock Up (1989) or The Shawshank
Redemption (1994), tend to personify a plurality of ethnic and cultural
diversity in prison, as they tell stories of mostly white inmate protagonists
doing conflict with mostly white correctional antagonists, against a
background of out of control systems of criminal justice. These narratives
are not only dated, but they represent white-washed versions of life behind
bars in the United States.

In the final analysis, what we try to show in our book is how the social
relations of class, race, gender, and crime control as well as the ways of
seeing difference, are both related to the inequalities of crime, social justice,
and culture production. After reviewing in the first portion of the book, the
histories of class justice, race justice, and gender justice in the U.S.
states, we then examine class, race, and gender in the administration of
criminal justice: first, in terms of the relative uniqueness and isolation of
class, race, and gender; and second, in terms of the interactions between
class, race, and gender. We then go on to discuss alternative discourses on
crime and justice as well as to propose policies that reflect upon crime,
marginality, and justice in relationship to the prevention and the reduction of
harms and crimes in American society.

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