Liability to criminal punishment is linked, as both cause and effect, to the systematic social disadvantage of the poor, especially those who are black and Latino. Our social and political institutions do not rescue people from unemployment, unaffordable rents, unfavorable loans, lack of competitive educational preparation, poor public transportation, drug and alcohol addiction, or homelessness. A lack of adequate, legal opportunities for the disadvantaged to satisfy basic needs and to gain social status influences some people’s choice to participate in the underground economy or to use violence to gain access to resources and to enhance their security and self-esteem. While not the only cause, social disadvantage is a cause of the rate of commission for both nonviolent and violent felonies.
When disadvantaged members of society engage in criminal activity, they are more likely than the socially privileged to be arrested. Police surveillance is more intense in poor neighborhoods, the urban poor are more likely than other people to be subjected to “stop and frisk” policies, and in poor neighborhoods criminal activity is more likely to occur in public spaces than on private property. Studies also show that racial minorities are more likely to be charged with serious crimes, less likely to receive favorable plea agreements, and more likely to receive harsher sentences, including the death penalty. For example, in poor neighborhoods criminal activity is more likely to occur in proximity to schools, which can enhance criminal sentences. Urban schools themselves are more likely to have police presence, and data indicates that schools with police are more likely to take a law enforcement approach to student misconduct.
On the “effects” side, criminal arrest and conviction carry with them serious and lasting social stigma. This stigma is often accompanied by the permanent retraction of important entitlements and rights, such as eligibility for student loans, housing assistance, food stamps, and the right to vote. Felony conviction can lead to deportation in the case of noncitizens. Licenses in many professions and occupations are unavailable to people with felony records. For example, in the state of California, a person with a record of conviction for any felony is ineligible to be licensed as a nurse, social worker, optometrist, landscape architect, contractor, psychologist, marriage or family therapist, worker at the Department of Motor Vehicles, home care aide, or professional photocopier. The stigma of criminality supports the law’s verdict that it is not illegal to discriminate against felons who apply for employment, admission to college, mortgages, or housing. As a result, felons are more likely to be jobless, poor, uneducated, and homeless.
I will argue that social injustice presents special problems for philosophical theories according to which the liability to punishment depends on the state’s moral authority to blame criminal offenders for their criminal acts. This extends our discussion of the problems with the familiar blaming function of punishment. But social injustice also presents a problem for any theory of punishment, including an account of punishment focused on harm reduction rather than retribution. When it is serious, social injustice can undermine the democratic authority of the state to enforce legal rules, whether or not punishment functions to express blame. This is because it is objectionable for people to be to be burdened with serious, harmful consequences for breaking the law when they are not treated, in basic respects, as equal members of society. This objection is serious enough to unsettle the conventional presumption of law’s authority.
 For example, in schools with a “school resource officer,” possession of illegal drugs is almost twice as likely and robbery without a weapon is 3 ½ times more likely to be referred to local law enforcement. See http://data.huffingtonpost.com/2016/school-police/mississippi
Erin Kelly earned her undergraduate degree in philosophy from Stanford University; in further pursuit of philosophy, she then went to Columbia University for graduate study before moving to Harvard University, where she earned her PhD. Her research interests are in moral and political philosophy and the philosophy of law, with a focus on questions about justice, the nature of moral reasons, moral responsibility and desert, and theories of punishment. She has a non-academic interest in music, film, the outdoors, and two young children.