Future of Criminal Justice: Toward a Privatized Criminal Immunity and Constitutional Crisis

The future of criminal justice, for everyone except the wealthy, is increasingly bleak. Numerous problems arise from the fact that crime is an extraordinarily nuanced social concept that is not precisely defined, that violent crimes are deemed more serious when committed by individuals than when committed by corporate actors, and that ostensible constitutional protections fail to treat the poor and the wealthy similarly.

Crime is not defined in a manner capable of creating a consistent and uniform approach to socially destructive and undesirable behaviors because wealthy and powerful individuals are able to escape basic criminal definitions by hiding behind powerful corporations in ways that allow them to escape criminal culpability for apparently criminal types of acts.

This is especially true when one examines traditional distinctions between violent and non-violent types of crimes; more particularly, individual acts that result in physical harm are frequently defined as crimes in the criminal law whereas corporate acts that result in physical harm are instead frequently defined as non-violent or white-collar types of crimes.

The criminal law therefore creates a perverse type of incentive to commit crimes through corporate shells because the corporate structure in many ways shields individuals from criminal liability or diminishes the type of punishment. Such disparate criminal consequences, for example, can be seen in criminal cases involving Ford Motor Company’s decision to produce the defective Ford Pinto which resulted in multiple deaths and fatalities back in the 1970s as well as contemporary cases against private military contractors such as Blackwater in Iraq.

Because of the confusion regarding how crime ought to be defined, and because this confusion in turn results in differential treatment for individuals and corporate executives whom effectively cause the same types of physical harm, the future of criminal justice is ominous to the extant that it is quickly developing into a bifurcated type of criminal justice system in which the wealthy escape criminal culpability and the others are punished.

Although the federal and state constitutions are intended to protect against these types of differential treatment, mostly through special protections triggered by an arrest, the academic literature strongly suggests that constitutional guarantees fail to provide equal treatment for all people. There thus exists, to the extant that the federal and state constitutions fail to guarantee equal treatment in the federal and state criminal justice systems, an evolving constitutional crisis.

This paper will argue that the future of criminal justice will continue to be plagued by competing definitions of crime that will taint the legitimacy of the criminal justice system, that it will involve increasing corporate attempts to define the physical harm caused by their actions as non-violent in order to avoid criminal responsibility for the wealthy, and that this will inevitably lead to a serious constitutional crisis.