By Katherine Gaudet
Excerpted from What Is a Criminal? Answers from Inside the US Justice System (Routledge, 2023)
In 399 BCE, a 75-year-old man was sentenced to death. In his city, people accused of a crime had the right to a trial, and their fate was decided by a jury of their fellow citizens. It happened that this man, who was a philosopher, had a student who liked to write down his teacher’s wise discourses. So today, we can read what Socrates said when he was accused of corrupting the youth of Athens (or, as Socrates sees it, helping them learn to think). Socrates’s trial, recorded by his student Plato, is an example of a long-ago argument about what it means to be a criminal. Socrates was forced to drink poison hemlock because his peers decided his continued life would pose a grave threat to their community. In the modern United States, a justice system with roots in ancient Athenian principles metes out the same verdict (with varying sentences) to staggering numbers of people. 2400 years after Socrates’s death, what it means to be a “criminal” remains a crucially important question.
Several years ago, I began teaching a college class called “What Is a Criminal?” I’m not a criminologist; my background is in literature. But I’m an American citizen, and it was becoming clear to me that the ways we think about criminality are of central importance to our society. As I’ve learned more about the topic, I’ve become convinced that it’s important for anyone who cares about justice to learn about the criminal system and the people involved in it. Furthermore, I think it’s essential to hear from people with firsthand knowledge, as well as those who have done sophisticated academic research. Criminality is such a complex, important topic that any single perspective will miss a great deal. The individual stories of people involved in the justice system often run counter to popular narratives, and in all cases offer context and depth.
While there are a lot of people who have deep knowledge of the justice system, many of them never talk to one another. People working in law enforcement, for example, may not be sharing their experiences with academics who are studying particular aspects of law and justice. Others may be passionate about reforming the justice system, but have little idea what it’s like to live and work inside it. This book is one attempt to bring these diverse kinds of knowledge together. It includes personal stories from people who have been incarcerated or treated as criminals, people who work in law enforcement, and people who strive to improve their local systems, as well as essays by academic researchers that provide historical and philosophical context. By reading these essays together, I hope readers will find that their perspective on the justice system becomes more open and nuanced.
“What is a criminal?” is a deceptively simple question. At the beginning of each course, I ask students for their answers. At first, here’s what they say:
- Someone who breaks the law
It’s easy to see that you’d have to have an extremely strict definition of “criminal” to apply the first suggestion. Most of us have broken the law; we’ve speeded, jaywalked, downloaded content illegally, lied on forms. It quickly becomes clear that there needs to be an “and.” A criminal who is someone who breaks the law . . .
- And is convicted of a crime
(What if a murderer never gets caught? Aren’t they still a criminal?)
- And harms someone
(As humans, we are all destined to harm other people, so the kind of harm has to be specified. And what if you harm someone accidentally? Also, what about crimes like drug use, in which the harm to others is unclear? What if I try to harm someone and fail?)
- And intends to seriously harm someone
(If I drive drunk, or fall asleep at the wheel, and hit someone, I had no intention of doing harm. Am I a criminal? What if I lack the cognitive ability to understand that my actions will create harm?)
We could go on. Most people believe that criminality has something to do with harm; that it requires some degree of intent, but that even unintentional harm is criminal if it could have been foreseen or avoided; that a “criminal” needs to be mentally competent and of an age to be responsible for their actions; and that the law needs to be just in the first place. There’s also a lot of disagreement about where these lines should be drawn—and who should be trusted to draw them. In short, though most of us think we know what it means to be a criminal, it turns out to be quite tricky to settle on a definition.
This is why societies throughout history have had complex criminal codes, standards, and norms. There’s no evidence of a civilized society without criminality—that is, without a system for identifying and punishing people who act in certain ways. From ancient Sumer to the present, these codes discuss questions of intention, ability, harm, and social status. Criminality is complex.
Why it important to explore what criminal means? For one thing, in the US, a vast number of people are affected by that label. About 3% of American adults have served or are serving time in prison—7.3 million people. People who have been convicted of felonies (which are crimes that can carry prison sentences of more than a year) make up 8% of the adult population; alternative sentences, like probation, mean that many with felony convictions do not go to prison.[i] Those numbers, large in themselves, form just the narrow top of the “criminal” pyramid. About 80% of all arrests are for misdemeanors, which range from petty offenses, like not wearing a seatbelt, to crimes that carry up to a year of jail time.[ii] The enormous number of misdemeanor arrests in the US means that a full third of American adults carry an arrest record—about the same proportion as those who hold a college diploma.[iii] Even without a conviction, arrest records can show up on background checks—and arrests can be costly and even traumatizing in themselves. Furthermore, arrests and convictions are concentrated in certain places and among certain groups of people.[iv] While you’re almost certain to come into contact with people with criminal records in any social circle, criminalization has a far greater effect on some communities, contributing to inequality and undermining community structures.
On a more abstract level, digging into what it means to be a “criminal” can tell us a lot about the society in which we live. One way to think about a criminal justice system is as a summary of the behaviors a society wants to prevent. Criminal codes can specify not only that you can’t murder or steal, but what you can’t wear, where you can’t go, what you can’t sell, and with whom you can’t have sex. These rules differ between cultures and change over time. In the US, for example, within the past generation interracial and same-sex marriage were illegal, while it was legal to assault one’s spouse or child. It seems likely that within the next few years we will see changes in the criminal status of abortion and drug use. Criminality is not a fixed, universal category but one constructed within a particular culture and power structure.
In the United States, the societal stakes of criminality are apparent in the fact that under criminal law, it is not the plaintiff is not the victim, but “the People” or “the State.”[v] This structure suggests that the injured party is less the person who was directly harmed than the nation itself. Criminal law encompasses all cases that can carry prison time or capital punishment; only the government can seek and impose these penalties. (If non-governmental parties were to incarcerate or kill someone, those would be crimes in themselves.) It stands to reason that this power must be carefully limited, and these limits were a priority for the writers of the Constitution. Even for the crime of making war against the United States—treason—they specified that “no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”[vi] Of the ten amendments that form the Bill of Rights, half (Amendments 4, 5, 6, 7, and 8) concern the rights of people accused of crimes. Crime, as a concept, is intrinsically bound up with the State, its power, and its values; a “criminal” is someone who has crossed a line set by the State.
A person convicted of a crime loses, to a remarkable extent, the rights of a US citizen. Most dramatically, when the 13th Amendment abolished slavery, it specified an exception: slavery can still be used as a punishment for people convicted of crimes. People convicted of felonies can lose what many Americans think of as inalienable rights: life, liberty, and the pursuit of happiness. Importantly, once a person is convicted, their status may be forever changed, even after they have, as the phrase goes, paid their debt to society. People who have felony convictions may continue to be ineligible for many governmental benefits and types of employment for the rest of their lives. While many people do rebuild productive, happy lives after being convicted of a crime, the label of “criminal” often continues to dog them socially and professionally.
Should we be using the word “criminal” to describe people at all? Some believe it is a slur, and should be avoided in the same way we avoid offensive words about race and disability (see Jessica Henry’s contribution to this volume for a discussion of this idea; Patrick Schmucker also discusses the problems with labeling). Similar concerns apply to words like “felon,” “inmate,” “convict,” and so on.[vii] In this book, each writer has used the terms they felt comfortable with. Whatever words one employs, the reality is that for many people, a criminal conviction signals a loss of humanity. In addition to the loss of citizenship rights discussed above, people with criminal convictions face the knowledge that others may see them as undeserving of basic human needs, like comfort, connection, and the ability to improve their lives. Criminality carries a stigma like nothing else in our society, and that stigma can obscure the uniqueness of the people who carry it.
This book aims to share the human stories of people involved in the criminal justice system. As I gathered these stories, it became clear that every one could be a book in itself. Each of the first-person essays allows a glimpse of a unique person—where they came from, why they made the choices they did, what happened to them, where they might go in the future. They are stories of journeys, of learning, and of change.
The first section, includes first-person stories of people who have served time in prison. These are all success stories, to some extent. All but one of the writers have left prison and reintegrated into society. (The other, Bobby Bostic, was serving a life sentence when he wrote the essay, and has since been granted parole.) Joseph Lascaze and Jamel Muhammad served long sentences before leaving prison to work for social change. Writer Diane Gottlieb interviewed three men who are working to rebuild their lives after release. In telling their stories, these writers dug deep into their pasts to relate how they ended up in prison and how they left criminal behavior behind, and they share the struggles of living with a criminal conviction.
Section two, Journeys in Law Enforcement, gives the perspectives of people employed within the justice system. Like people with criminal convictions, those who work in law enforcement can be subject to dehumanizing stereotypes. They, too, are people on their own journeys, and the stories here show how members of the law enforcement community have learned, changed, and worked to better their communities. This section shows what it is like to be a corrections officer (Blair Rowlett), a police officer (Brendan Cox, Lawan Cancer), and a school resource officer (Patrick Schmucker and Cancer). Rowlett and Cox also discuss the programs they now lead, which provide alternatives to sentencing and arrest.
The third section, Ripple Effects, is about people whose lives have been affected by the justice system in somewhat less direct ways. It includes stories of the children of incarcerated parents (Seren Sensei and Anna Roberge), a filmmaker deeply affected by making a film about solitary confinement (Jennifer Fischer), and an asylum seeker who risks detainment and deportation because of his immigrant status (Alex Macias). Each of these stories shows how criminalization ripples outward.
The final section, Scholarly Perspectives, presents four pieces of academic work that put individual stories into broader contexts. McKenzie Wood presents an overview of research into what makes people more likely to commit crimes. Valena Beety examines how pseudoscientific forensics and bias against queer people resulted in the wrongful conviction of two Mississippi women. Jessica Henry, too, discusses a wrongful conviction—which occurred in a case that involved no crime at all. Michelle C. Sermon shows how one family in Washington, DC has been affected by the criminalization of one of its members, and how their experience is linked with broader social issues. Jasmine E. Harris discusses the problematic role of disability in the criminal justice system, and argues that bias against people with disabilities is rooted in how we perceive other people.
These stories are not meant to provide a thorough overview of the criminal justice system, but rather to dive deeply into particular experiences. Nor does this book advocate for specific changes to the justice system, though several of the essayists offer up models of transformation. Nevertheless, this book does make an argument. It attempts to show that creating a more fair and successful justice system requires listening: to the individual people who live and work within it, as well as to the research of scholars who dedicate themselves to careful, in-depth research.
During Socrates’s trial, in explaining how he came to have a reputation as a sage, he recounts how the oracle at Delphi named him the wisest of men. Thinking this must be false, Socrates sought out people who seemed wiser. Each, he decided, was not really wise. Because those people knew a lot about something—politics, poetry, or craft—they assumed they understood everything, and so became foolish. His own wisdom, Socrates concludes, is in knowing how little he knows.
Making fools out of powerful people didn’t win Socrates many friends, and the Athenian jury voted to put him to death. But his message of intellectual humility remains a valuable one; too many of us, secure in what we know, forget what we don’t know. My hope in presenting these 17 accounts of our justice system is that each reader will encounter new knowledge and new perspectives around the question “What is a criminal?”—and will close the book with a desire to learn more.
[i] There is no comprehensive, centralized data on arrest, conviction, and incarceration in the US, so scholars have used available data to produce estimates. The estimates that 8% of adults in the US have felony convictions and 3% have served time in prison are from Sarah K. S. Shannon et al., “The Growth, Scope, and Spatial Distribution of People with Felony Records in the United States, 1948–2010,” Demography 54 (2017): 1795–818. For a discussion of the lack of available data about the US Justice System, see John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017), 16–17.
[ii] On misdemeanor arrests and their effects, see Alexandra Natapoff, Punishment without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (New York: Basic Books, 2018).
[iii] Matthew Friedman, “Just Fact: As Many Americans Have Criminal Records as College Diplomas,” Brennan Center for Justice, November 17, 2015, http://www.brennancenter.org/our-work/analysis-opinion/just-facts-many-americans-have-criminal-records-college-diplomas
[iv] Black men in particular are extremely overrepresented in the criminal justice system; 33% have felony convictions and 15% have been to prison. See Shannon et al. for analysis and discussion.
[v] Victims may personally sue those who injure them under civil law. If a person is convicted in a civil case, they may have to pay damages to the person injured or penalties to the government, but will not be sentenced to prison. Civil defendants do not have the same constitutional protections as criminal defendants, and the standard for conviction is easier to meet.
[vi] U.S. Constitution, article 3, section 3.
[vii] The Marshall Project website has a helpful section called “The Language Project,” which presents multiple perspectives on the use of contentious terms, as well as a style guide. http://www.themarshallproject.org/2021/04/12/the-language-project