Too Big to Jail

I’ve been reading through Glenn Greenwald’s With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful and it is as appalling as the title promises. Here’s a salacious and infuriating taste:

In July 2010, Martin Joel Erzinger, a hedge fund manager for extremely wealthy investors at Morgan Stanley Smith Barney, was driving his car near Vail, Colorado, when he hit a bicyclist from behind and then sped away. The Vail Daily reported that the victim, Steven Milo, suffered “spinal cord injuries, bleeding from his brain and damage to his knee and scapula,” which left him facing multiple surgeries. The newspaper’s account of the incident makes clear that Erzinger should have been prosecuted fro this event.

Milo was bicycling eastbound on Highway 6 just east of Miller Ranch Road, when Erzinger allegedly hit him with the black 2010 Mercedes Benz sedan he was driving. Erzinger fled the scene and was arrested later, police say. Erzinger allegedly veered onto the side of the road and hit Milo from behind. Milo was thrown to the pavement, while Erzinger struck a culvert and kept driving, according to court documents.

Erzinger drove all the way through Avon, the down roundabouts, under I-70 and stopped in the Pizza Hut parking lot where he called the Mercedes auto assistance service to report damage to his vehicle , and asked that his car be towed, records show. He did not ask for law enforcement assistance, according to court records.

Committing a hit and run is a felony in Colorado, and leaving the scene of a crime constitutes a felony as well. Nevertheless, the district attorney, Mark Hurlbert, announced that Erzinger would be charged only with a misdemeanor, which carries no jail time. Hulbert’s explanation for not charging Erzinger with any felonies was blunt: “Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession.”

In other words, Erzinger engages in such vital activity that charging him with a felony would be wrong because it might seriously disrupt his work: managing the money of mulitmillionaires and billionaires. According to Worth magazine, Erzinger “oversees over $1 billion in assets for ultra high net worth individuals and their families and foundations.” If he were charged with a felony he would be required to report that fact to licensing agencies; a felony conviction could result in his fund manager license being rescinded. Apparently, as far as the district attorney was concerned, it would be terribly unfair to subject someone like Erzinger to the risk of damaging his career, though presumably someone with less to lose could—and would—be charged as a felon without any such worries.

A petition signed by more than ten thousand local citizens demanding Erzinger be prosecuted was ignored. In similarly outrageous double standard logic that judges that criminal consequences are just too onerous to be applied to white collar criminals, Richard Cohen from The Washington Post inveighed against the prospect of Scooter Libby suffering for being convicted of obstruction of justice and against Special Prosecutor Patrick Fitzgerald for doing his job and demanding information from journalists:

Cohen went on to chastise Fitzgeral for having been unfairly harsh in his investigation, especially for terrifying the famous journalists whom he subpoenaed to testify. Cohen protested: As any prosecutor konws—and Martha Stewart can attest—white-collar types tend to have a morbid fear of jail.” of course, blue-collar types, and poorer ones still, do not mind prison at all. Why would they? It’s their natural habitat, where they belong. Prison is for people like them.

Under this view, law is needed to control and constrain the ignoble masses (that is, the powerless), who will otherwise spread chaos and disorder. But the noble among us need no constraints. Indeed, the opposite is true: society is better off if the most privileged are free to act without limits, for that will maximize the good they can produce for everyone.

In all the media outrage over the plight of poor Scooter Libby, that was the point all along. And the spirit of Cohen’s objection infuses the crusade for elite immunity in general. The real injustice is to consign the powerful to prison, even if they are guilty of crimes. There is a grave indignity to watching our vaunted political elite being dragged through criminal proceedings and threatened with jail time as though they were common criminals. How disruptive and disrespectful and demeaning it all is.

Finally, one more quote which sums up the thesis of the book most devestatingly:

In the United States, the lack of accountability for elites goes hand-in-hand with a lack of mercy for everyone else. As our politicans increasingly claim the right to commit crimes with impunity, they simultaneously escalate the severity of punishments imposed on ordinary Americans who have broken even the most minor laws…Permissiveness for elites, by itself, is unjust enough. But at least if that leniency were available on an equal basis to everyone it might arguably be fair, and certainly less injurious to basic precepts of justice. It is the elites’ insistence on treating all others in precisely the opposite fashion from the way they treat themselves that is so pernicious.

The United States now imprisons more of its citizens than any other nation in the world, both per capita and in absolute terms. The numbers are staggering. The United States has only 5 percent of the world’s population, yet nearly 25% of all prisoners in the world are on American soil. “Simply put, we have become a nation of jailers,” writes the Brown University professor Glenn Loury. “The American prison system hsa grown into a leviathan unmatched in human history.”

Read Greenwald’s entire book and his indispensable blog for many more of the gory details of contemporary American injustice. And spread the word and think constructively about how, if at all, the system can possibly be fixed.

A couple years ago, when hardly anyone was reading Camels With Hammers, I wrote a post offering 9 philosophical speculations about why authoritarian attitudes are increasingly appealing to Americans (specifically as related to increased acceptance of torture and the police state). I think the thoughts there are evergreen and I’d love Your Thoughts on them if you have the time and interest and (especially) any relevant expertise on the relevant issues.

Finally, back to Greenwald, you can watch a very good interview with Democracy Now which overviews the themes and information in With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. Greenwald also gave an excellent video interview to Bill Moyers awhile back making the case against America’s perpetual war making.

Your Thoughts?

About Daniel Fincke

Dr. Daniel Fincke  has his PhD in philosophy from Fordham University and spent 11 years teaching in college classrooms. He wrote his dissertation on Ethics and the philosophy of Friedrich Nietzsche. On Camels With Hammers, the careful philosophy blog he writes for a popular audience, Dan argues for atheism and develops a humanistic ethical theory he calls “Empowerment Ethics”. Dan also teaches affordable, non-matriculated, video-conferencing philosophy classes on ethics, Nietzsche, historical philosophy, and philosophy for atheists that anyone around the world can sign up for. (You can learn more about Dan’s online classes here.) Dan is an APPA  (American Philosophical Practitioners Association) certified philosophical counselor who offers philosophical advice services to help people work through the philosophical aspects of their practical problems or to work out their views on philosophical issues. (You can read examples of Dan’s advice here.) Through his blogging, his online teaching, and his philosophical advice services each, Dan specializes in helping people who have recently left a religious tradition work out their constructive answers to questions of ethics, metaphysics, the meaning of life, etc. as part of their process of radical worldview change.

  • John Morales

    You make a prima facie case that I personally would not care to attempt to honestly dispute.


    (Truth is harsh)

  • F

    Have you read Vidal’s Perpetual War for Perpetual Peace? It an historical romp through the US’ constant belligerence. I mention this with respect to your closing sentence.

  • nemothederv

    When corporations are people and money is speech why would anyone be suprised by this?

  • Ace of Sevens

    This is way more blatant than usual. There needs to be some sort of good disincentive for this behavior. The prospect of elections helps, but also gets harsh punshments for scary poor minorities. Maybe an oversight commitee?

  • Everett Attebury

    This reminds me of premises 4 and 5 of Derrick Jensen’s Endgame:

    Premise Four: Civilization is based on a clearly defined and widely accepted yet often unarticulated hierarchy. Violence done by those higher on the hierarchy to those lower is nearly always invisible, that is, unnoticed. When it is noticed, it is fully rationalized. Violence done by those lower on the hierarchy to those higher is unthinkable, and when it does occur is regarded with shock, horror, and the fetishization of the victims.

    Premise Five: The property of those higher on the hierarchy is more valuable than the lives of those below. It is acceptable for those above to increase the amount of property they control—in everyday language, to make money—by destroying or taking the lives of those below. This is called production. If those below damage the property of those above, those above may kill or otherwise destroy the lives of those below. This is called justice.

    • Daniel Fincke

      Fascinating, thanks.

  • plutosdad

    I bike to work every day in Chicago, and am familiar with these scenarios. this is a poor example of the “haves” getting away with something, because, while it does show disproporationate justice, it doesn’t show what you think it shows.

    What it really shows is how a car driver can get away with hitting a pedestrian, bicyclist, or motorcyclist, and just say “they swerved into me , there was nothing I could do”. It’s even easier to get away with it if the victim dies, making a perverse incentive to make sure to kill people you injure.

    This dichotomoy applies even when the auto driver is a “have not”, and happens over and over. Last year (once in chicago, once in naperville) there were cases of a driver deliberately trying to hit a bicyclist, and in the chicago case it was a poor gangbanger who got a suspended sentence, and in the naperville case it was a poor to middle class woman who got 28 days in jail. that is for attempted murder.

    So, while the cases of people literally getting away with murder, or usually getting way with negligent driving, infuriate me, they are not a case of “have nots vs haves” and he shouldnt’ be using those exmaples. They are a far bigger case of “majority” vs “minority”, where the minority (bicyclists, pedestrians) is simply not believed.

    Look at the comments section in any newspaper when a bicyclist gets hit, and it’s full of “he got what he deserved, those damn bikers are crazy” etc. It makes you think the average car driver, whether a “have” or “have not” is a bloodthirsty maniac.

    That is why I now wear a helmet cam every single time I commute on my bike, because it’s my word against an auto drivers, and experience teaches that my word is worth nothing, and only hard evidence will protect me (or at least get damages for my survivors).

    If you really want to see a better case of a Have getting away with murdering a Have Not when the Have Not is on a bike, then google ex Attorney General of Toronto Michael Bryant, you can see the video on youtube where he, THREE TIMES, hits kid on bike. He actually backs up and rams him again. The charges were dropped. When I read the case I thought well maybe he was afraid like he said. But then you watch the video and see how the kid posed no danger, and he could have driven around, and you realize Michael Bryant is a flat out murderer, who got away with it due to his political connections.

    Another case is the Pritzker kid in chicago, who tried to ram a biker, and when the police found out who it was they crossed out what they wrote on their report and rewrote their entire report, even though there was another witness. The Chicago Tribune showed the pics of the crossed out report.