This just in: Lady Justice can see race and class quite clearly from under that blindfold. In 2012, HSBC a criminal banking conglomerate settled in court for $1.9 billion in fines rather than face criminal prosecution. Restorative justice has its virtues, but less so when said justice is routinely offered to some and not others. The 2012 settlement detailed how Mexico’s Sinaloa drug cartel and Colombia’s Norte del Valle cartel laundered $881m through HSBC and a Mexican unit. In some cases, Mexican branches had brazenly widened tellers’ windows to allow big boxes of cash to be pushed across the counters. HSBC also violated US sanctions by working with customers in Iran, Libya, Sudan, Burma and Cuba.
More recently, a litany of articles have rightfully criticized our tiered system of punishment that goes well beyond disparate sentencing across lines of race, space, and class. As of late, private run facilities for “select” offenders offer upgraded amenities for the upwardly mobile incarcerated. For $100 dollars a night, rapists and petty drug offenders, and those found guilty of a range of crimes can sidestep traditional prisons for an extra modicum of safety and comfort. For that very fee, one sex offender circumvented the indignities and dangers of county jail in order to stay at a boutique jail in Seal Beach, replete with flat screen TV’s, a computer room, and brand new beds. After serving his six months of pseudo-incarceration, Alan Wurtzel left with an $18,250 dollar tab. Perhaps more importantly, his experience was most certainly more palatable than that of those serving time in county jail for the very same crime, or in other instances, lesser crimes. “Pay-to-stay” private jails have been on the rise in California since 2011, adding yet another chapter to our history of unequal punishment.
As an historian of the Crack Era, I’m well-versed in our unfettered enthusiasm for punishment, particularly when it applies to poor nonwhite urbanites. A closer look at the years leading up to the national panic over crack in 1986 suggest that our patterns of tiered justice have much deeper roots. As David Courtwright has reminded us again and again, what we think of particular drugs (or crimes) and how to respond to them as a society is often dictated by how we view its particular set of users, or in Wurzel’s case, predators. The scandal that shook Choate Rosemary Hall in 1984 elucidates this reality. Perhaps the preeminent boarding school in the nation, Choate sprawls across 500 pristine acres in Wallingford, Connecticut, with a century-old tradition of wealth and excellence. Well-heeled graduates are too numerous to name, but one young man we might remember was John F. Kennedy. Certainly, young Jack might have been up to similar mischief as his contemporaries were in the early 1980s, mischief that lands citizens from the wrong sides of the track long stretches in county jail, state or federal prison–not Seal Beach.
So what happened at Choate and why should we care? In April 1984, scholarship student Derek Oatis arrived at Kennedy Airport from what can only be called a two-day business trip to Caracas, Venezuela with former Choate student and his girlfriend Catherine Cowan. Per customs agents, a random inspection of the young entrepreneur’s luggage and pockets netted five plastic bags and a talcum powder container filled with one pound of high-purity cocaine. Later reports tabbed the take at 350 grams with an estimated street value of $300,000, a substantial amount of cocaine to be smuggling internationally. Worse still, Oatis had on his person a list of Choate students who were financing his drug run and expecting their drug of choice upon his return. All told, 16 former Choate students plead guilty to participating in the buying scheme, while countless others managed to elude authorities. Further investigation by prosecutors revealed that smuggling from Venezuela directly to the school had occurred on at least seven occasions dating back to 1982.
Several curious events ensued. First, within 24 hours the DEA turned the case over to local law enforcement–an odd decision given the quantity and international scope of the purported crime. Second, within the same 24 hours, local officials granted Oatis release on $10,000 bail. Third, New York prosecutors received an unusual call from the then Governor of Arkansas, Bill Clinton, on behalf of Little Rock native and defendant Cathy Cowan. Despite feasting upon the political utility of Law and Order politics as Governor, routinely approving hundreds of extradition orders for Arkansas residents prosecuted in other states, Clinton balked in this particular instance. Clinton delayed the process for months, stating that it would be “unconscionable” to expose Cowan to New York’s harsh drug laws. After receiving a fair bit of political criticism for the move in a conservative climate of punishment, Clinton personally negotiated reduced charges for Cowan–three years of probation and 1,000 hours of community service. It is worth noting that Cowan’s lawyer, William R. Wilson had close ties with the Clinton’s. In addition to his role as a longtime campaign contributor, Wilson had tried cases and shared legal fees with Hillary Clinton. More germane to the moment, Wilson was at the time representing Clinton’s half-brother, Roger, on federal cocaine charges.
Here we might suggest that gender and Cowan’s purported “tangential” role in organizing the student funds and arranging for airline tickets helped her get a good deal. But what about Derek, the boyfriend with all the drugs on his person and in his luggage? Surely he would see the inside of a prison less enticing than the offerings of Seal Beach, and surely for a substantial duration. But, “after tearful pleas for leniency” by his white middle-class parents in Federal District Court, Judge T.F. Gilroy Daly called a recess. The judge returned moments later from his chambers and announced that he had come to work prepared to send Oatis to jail. But that would not come to pass. Oatis was sentenced to five years of probation and 5,000 hours of community service in November of 1985. Per Judge Daly, it would have been unfair to sentence Oatis harshly because of “the spotlight on this case.” Dozens of relatives “embraced and sobbed in relief” at the redemptive prospects of restorative justice. Otis’ defense attorney, somehow, managed to assess the verdict as substantial punishment stating, “this is not a slap on the wrist,” citing that the lengthy community service “will take two years out of his life.” If only petty crack offenders from the Bronx and elsewhere had such luck just one year later after passage of draconian federal mandatory minimums intended to punish crack dealers and users.
One might also ask, why did Oatis and his attorney’s lobby to be tried in Federal District Court? In 1985, Oatis would have faced stiff Rockefeller sentencing for his transgression. Federal mandatory minimums would not come until a year later, when a new set of users, accessing a cheaper form of the same derivative were punished with impunity. Take for example Vietnam Veteran Larry Hogue, the “Wild Man of 96th St.” in New York. A shambling homeless man with a sizable disability pension, Hogue was clearly a victim of the deinstitutionalization of the mentally ill, the rise of cheap crack cocaine, and harsh sentencing. After being struck in the head by a propeller blade, Hogue suffered damage to the frontal lobe of his brain. He spent the 1970s in and of state hospitals about 20 times. In the 1980s, per his former psychiatrist, Hogue was “pushed through the cracks,” turning up on the Upper West Side struggling with his dual diagnosis of mental illness and substance abuse. Far from the halls of Choate, little sympathy came from the criminal justice system, and most residents, for Mr. Hogue. His attempts at survival and self-medication were branded criminal, a social problem to be eradicated. Derek Oatis and the other 15 students were just bored rich kids riding out a phase. Probation, fines, and for some, community service would do the trick.
Perhaps most troubling are the long-term consequences of these disparate applications of justice for poor communities and nonwhite citizens. While scores of youth are branded Felon’s–thereby limiting their life potential–others get to move forward with life and become productive members of society. To that end, Google Derek Otis now. Not only is he not in jail, he is a successful, practicing attorney.