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Barbara McQuade Breonna Taylor and Robert Kraft: A tale of America's two justice systems

If we want to be the kind of country where all people are created equal, we need a criminal justice system that treats all people fairly, regardless of income, race or power.
We cannot be a society that values some lives more than others or that allows wealth to buy one's way out of prison.
We cannot be a society that values some lives more than others or that allows wealth to buy one's way out of prison. Julius Constantine Motal / NBC News

In the same week that we learned that the police officer whose bullet killed Breonna Taylor would not be charged with a crime, we also heard that charges would be dismissed against Robert Kraft, owner of the New England Patriots. For many Americans, we cannot help but see this as a tale of two justice systems.

In one system, a Black woman was awakened in the middle of the night by pounding on the door of her apartment. Armed intruders entered in what must have been a terrifying scene of chaos. Her boyfriend fired his lawfully possessed gun at the intruders, and they fired back, 32 times, killing her.

In the same week that we learned that the police officer whose bullet killed Breonna Taylor would not be charged with a crime, we also heard that charges would be dismissed against Robert Kraft.

Kentucky's attorney general announced that the grand jury investigating the case had found that the officers fired in self-defense and that no charges would be filed against the officers who shot Taylor. One officer will be charged with wanton endangerment, accused of firing shots that entered a neighbor's apartment.

In police use-of-force cases like this one, the law focuses on the conduct from the perspective of reasonable officers at the scene and allows an officer to return shots when under fire. While the grand jury's decision here may make sense under the law, the entire sequence of events leaves one with the feeling of injustice for Taylor. After a summer of unrest over the death of George Floyd, an unarmed Black man, in the custody of a white police officer, once again it seems that another Black life did not matter to those in power.

Taylor's death leaves a number of unanswered questions. In Taylor's case, why was the warrant executed after midnight in what appears to be a garden-variety drug case? Why not wait until early the next morning, as is done routinely in most cases? How long did officers wait after knocking and announcing their presence before forcing entry with a battering ram? Did these decisions get the kind of scrutiny we would expect if the occupant of the home were wealthy or powerful?

Contrast Taylor's case with that of Kraft. The Patriots' owner was charged with soliciting a prostitute in Florida last year as part of an investigation into sex trafficking at massage parlors. Kraft pleaded not guilty, and his lawyers convinced a judge that key video evidence should be suppressed from his trial. The state attorney, Dave Aronberg, said "economic inequities" led to the dismissal of charges against Kraft, suggesting that wealthy people can hire expensive lawyers to help with their defense when others cannot.

It may very well be that the facts support the decisions made in both cases. But the cases still very clearly demonstrate that there are two systems of justice in America, one for the wealthy and powerful and another for the rest of us. It is not an accident that people with lower economic opportunity and people of color are disproportionately represented in our prisons.

High-priced defense attorneys can file motions and challenge every aspect of criminal cases. Public defenders, on the other hand, though highly skilled and dedicated lawyers, often carry large caseloads that do not permit them to give each case the same kind of time and attention that a private attorney can when paid a high hourly rate. In some states, court-appointed counsel is paid by the case and not by the hour, providing an incentive to invest as little time as possible in each defendant and push for quick guilty pleas. In addition to their inability to pay lawyers, low-income defendants often cannot afford to make bail, remaining in jail while they await trial, while their wealthier counterparts are released on bond.

In addition to resources, biases in the criminal justice system often work in favor of people with financial means, who tend to be white. A wealthy defendant in a white-collar crime case will often argue at sentencing hearings that the judge should impose a sentence of probation instead of prison because the defendant has already "suffered enough" just from the indignity of being charged with a crime. Defendants may claim that the shame they feel when they walk into the country club is all the reminder they need to stay on the straight and narrow. Indigent defendants do not even try to make that argument.

In addition to resources, biases in the criminal justice system often work in favor of people with financial means, who tend to be white.

What's more, these arguments actually work on judges, who often share the privileged socioeconomic backgrounds of the defendants before them in white-collar cases. According to a 2017 study, the majority of judges in fraud cases impose sentences below the sentencing guidelines.

High-income defendants can present "character" evidence at trial to show all of their contributions to society that a jury should consider in deciding their guilt or innocence, even if the good works are completely unrelated to the crime. But only people with a certain amount of wealth can make copious, trackable charitable donations or have the time to serve on nonprofit boards or volunteer.

If we want to be the kind of country where all people are created equal, we need a criminal justice system that treats all people fairly, regardless of income, race or power. One way to overcome inequality is by recognizing it and identifying it as a problem. We also need to attract more diversity to our institutions of justice: police, prosecutors and judges. When we have different perspectives represented among decision-makers, we can hope to bring more fairness to the system. But more important than either of these factors is culture. We cannot be a society that values some lives more than others or that allows wealth to buy one's way out of prison. Otherwise, over time, our laws will lose legitimacy and compliance, resulting in lawlessness. We need to make equal justice a priority in the criminal system.

The arc of the moral universe may bend toward justice, but only if someone pushes it, hard, in that direction.