It’s up to all of us—Black, white, everyone—no matter how well-meaning we think we might be, to do the honest, uncomfortable work of rooting it out. It starts with self-examination and listening to those whose lives are different from our own. It ends with justice, compassion, and empathy that manifests in our lives and on our streets. –Michelle Obama, J.D.
Your social identity affects your experience with justice, how you understand what justice is, and how you will respond to this chapter, and this textbook, which is written with an equity lens. It is appealing to think that we live in a country where every family has equitable access to opportunity, representation, and justice, but we must recognize the ways in which justice is distributed unevenly. Justice is typically defined as equal access or opportunity, equal treatment, and equal rights.
It is the intent of this chapter, and of this text, to uncover the ways in which representation and justice contribute to inequity in family experiences in the United States. When we talk about families, we are moving far beyond the social construction of the typical family and the ways that government and other institutions define “family” for taxes, health care, and other legal rights and responsibilities. We are including all the ways that people define their own families. It is our aspirational goal to inspire readers to understand injustice more deeply and to advocate and contribute to changes toward greater equity for families in the United States.
The Social Construction of Justice and Criminality
Flowing from the representation via elected officials is the common law system of justice generally in use in the United States. Common law (aka case law) is law that is derived primarily from the court system, meaning that when a case is tried and decided in a court it can affect civil law, those laws that are created by governing bodies such as state legislatures and the federal congress.
The level a particular court holds will affect whether counties, states, or the whole country will see a change in law based on the decision. Who makes those court decisions? While juries are involved in some cases, judges are the ultimate arbiters, as they make many decisions before a case even appears before a jury, as well as decisions all along the way about what evidence, witnesses, and motions will be allowed. Many cases are decided by a single judge or a panel of judges, without a jury. This is true to the United States Supreme Court, the Regional Appeals Courts, and many lower-level courts. Who judges are, their experiences, their beliefs, and their backgrounds have a big impact on all citizens of the United States. Judges in the United States must meet requirements such as having a Juris Doctorate (law degree), passing the bar exam, and practicing law. Judges may be elected or appointed depending on the governing regulations of the county, state, circuit, or federal system. Appointments are made by elected officials (e.g. the President of the United States appoints federal justices and then The Senate must confirm that appointment in order for it to be official). As you can see, the system of common law comes back to elected officials, and participation of residents in the United States.
We will discuss the social construction of justice and criminality in the United States, and we will include aspects of the court system, the government, and the criminal justice system for our examples. If you would like to more clearly understand the structure and interrelationships of these systems, these openly licensed and free texts are useful:
Like every system created by human beings, the justice system, and what is considered to be criminal, is a social construction. We have created and defined structures, roles, and institutions that we tacitly agree to abide by. Ideas such as “justice” “rehabilitation,” “debt to society,” and “criminality” all have definitions that have changed over time and location. For example, let’s look briefly at the plant marijuana which is frequently dried to be smoked, has oil extracted, or is otherwise ingested or applied. Is it a valuable medicine? Is it an illegal drug? Is it bad for you? Is it a comparable form of recreation to alcohol? Is it an essential service in the time of COVID-19? Are you a criminal if you use it? The answers to these questions vary based on location (federal, state, and county laws) and over time. They vary based on your profession and employer. Currently, it is legal in 33 states to use marijuana for medical purposes, and it is also legal for recreational purposes in 11 states, including Oregon. But its use is also considered to be criminal; cannabis over 0.3% THC continues to be completely illegal under the federal Controlled Substances Act of 1970. The increased legislative activity around marijuana between 2009 and the present day illustrates the very complicated relationship between federal and state governments and that the social construction of marijuana is in contention. For recent history and up-to-date changes, consult the Cannabis in the United States Wikipedia page here.