The Divide: American Injustice in the Age of the Wealth Gap

by Matt Taibbi

  Anyway, Tory scratched his head, looking confused. “It’s just—I don’t know, I’m like a magnet for cops.”

  Why do we put people in jail? We understand the concept instinctively, generally, but most people don’t know the actual legal justification. I didn’t know it.

  “Why do we put people in jail?” asked Neil Barofsky, the former prosecutor and TARP inspector. “That’s the question?”

  “Right,” I said. “What do they teach in law school?”

  “Well,” he said, “there’s general deterrence, individual deterrence, and justice for victims.”

  General deterrence is all about sending a message to the whole community of possible offenders. Individual deterrence is to send a message to the individual caught. And justice for victims speaks for itself.

  Financial crimes of the HSBC-UBS type cry out for jail terms on all three counts. Both deterrence angles are very compelling, because it’s a community of offenders that would likely be powerfully deterred by jail, if they thought it was a real possibility.

  And when you’re talking about crimes that affect so many people, the justice-for-victims aspect screams for jail, as few of these settlements came close to fully compensating victims for their losses. (In some of them, like the LIBOR settlements, there was no compensation at all for victims.)

  But these no-jail financial settlements, in which the money doesn’t come out of any individuals’ pockets, while they may do a lot for enforcement budgets, are virtually the only solution the state could come up with that doesn’t provide any real deterrent to individuals at all. Take, for instance, the Goldman Sachs Abacus settlement (as opposed to Chinatown’s Abacus Bank, a different case), in which the bank paid $550 million. A lot of money, but far less than the bank’s annual profits. Goldman even after that settlement could just think of itself as having received a $16.5 billion bailout from the state, instead of the $17 billion it actually got just through the AIG rescue.

  In a case like that, where the fine is insignificant compared to the company’s revenue, the settlement is almost an antideterrent. It just helps set the price for getting caught, and it makes the cost-benefit analysis for criminal behavior simpler.

  Even if you think the settlements are rational, they ignore the flip side. The flip side is where the excuses that prosecutors almost always give about the sweetheart settlements with banks like HSBC (that they’re the best deals the state can get, that evidence is hard to gather, that they may very well have lost had they prosecuted, etc.) fall apart.

  The problem isn’t just that prosecutors make these deals. More to the point, it’s that they’re not ashamed of them. And they don’t act like they need to be.

  The street criminal is hated, despised. It’s understood that sending him anywhere but to jail is grounds for public outrage. You’ll never see a local prosecutor call a press conference and pat himself on the back for letting a car thief or a mugger of old ladies off with a fine. Any local DA who made a deal like that for any reason, even a good one, would generally have enough sense to stay indoors and cancel the presser.

  But that’s not what we’re seeing with these white-collar cases. The government has not only made soft-touch, no-jail deals with criminal offenders repeatedly, but its officers have then tried to argue with straight faces that they’re good deals. There’s no attempt to explain or apologize for an enforcement failure. Nobody ever publicly complains about the difficulty of gathering evidence.

  In the HSBC case, for instance, the Department of Justice boasted about what a “robust” settlement it had achieved. It gushed in its press release about the unprecedented amount of money seized. Nowhere did it indicate any regret or apology to the public that no individual would have to face any penalty for what prosecutors themselves were describing as an “astonishing” record of dysfunction and “stunning” failures of oversight. Indeed, everybody seemed pleased as punch with the result.

  But even though nobody from the government ever says anything out loud about a lack of evidence being the real reason nobody from these companies goes to jail, we’re all—including reporters who cover this stuff—still supposed to accept that as the real explanation. It’s a particular feature of modern American government officials, particularly Democratic Party types, that they often expect the press and the public to give them credit for their unspoken excuses. They’ll vote yea on the Iraq war and the Patriot Act and nay for a public option or an end to torture or a bill to break up the banks. Then they’ll cozy up to you privately and whisper that of course they’re with you in spirit on those issues, but politically it just wasn’t possible to vote that way. And then they start giving you their reasons.

  And let’s be fair, on this issue, there are plenty of reasons. It’s true, regulators don’t have the resources to fight armies of high-priced lawyers who get paid by the minute to gum things up and beat cases back by attrition. And when your little team of government lawyers tries to beat back all the furious foot-high motions flowing from the Davis Polks and Covington & Burlings of the world, you often find yourself arguing before judges appointed by politicians who were elected with big-business money, jurists who in the best-case scenario will play it right down the line but even then will make you earn every yard on your way to the end zone. And then at trial, you might find out that some reputable firm like Ernst & Young or even, perhaps, an actual federal regulator knew about and okayed your target’s conduct all along and did so on paper. This is something you don’t often have to worry about with a Lincoln Park gangster—a permission slip to deal coke from the local precinct captain.

  The law isn’t supposed to be about unspoken excuses and behind-the-scenes calculations. The beauty of the system is that judges and juries are allowed to consider only what is seen and heard in open court. In between the white lines of this arena, it’s all supposed to make sense. This is where we all get to be equal again. In the defendant’s chair, rich and poor ride the same roller coaster, face the same music. Case has to match case. Sentence should match sentence.

  But they don’t match anymore. They probably never did, and probably it was never even close. But at least there was the illusion of it. What’s happened now, in this new era of settlements and nonprosecutions, is that the state has formally surrendered to its own excuses. It has decided just to punt from the start and take the money, which doesn’t become really wrong until it turns around the next day and decides to double down on the less-defended, flooring it all the way to trial against a welfare mom or some joker who sold a brick of dope in the projects. Repeat the same process a few million times, and that’s how the jails in America get the population they have. Even if every single person they sent to jail were guilty, the system would still be an epic fail—it’s the jurisprudential version of Pravda, where the facts in the paper might have all been true on any given day, but the lie was all in what was not said.

  That’s what nobody gets, that the two approaches to justice may individually make a kind of sense, but side by side they’re a dystopia, where common city courts become factories for turning poor people into prisoners, while federal prosecutors on the white-collar beat turn into overpriced garbage men, who behind closed doors quietly dispose of the sins of the rich for a fee. And it’s evolved this way over time and for a thousand reasons, so that almost nobody is aware of the whole picture, the two worlds so separate that they’re barely visible to each other. The usual political descriptors like “unfairness” and “injustice” don’t really apply. It’s more like a breakdown into madness.

  He laughs about it now, but when Andrew Brown was a little kid growing up in the projects of Brooklyn’s Bedford-Stuyvesant neighborhood—one of the roughest neighborhoods in America—he wanted to be a cop.

  “I’m serious, I wanted to be police,” he says. “I used to watch police shows on TV, and I thought it was real cool.”

  Asked what shows he watched, he smiles. “I used to watch CHiPs,” he says. “And Kojak. All of that.”r />
  It didn’t turn out that way. It went another way entirely. The thing is, Andrew has a past. He doesn’t deny it, he owns it. It’s part of what makes his story as crazy as it is. He started off on the wrong side of the law, then spent most of his adult life clawing his way back to the right side of it, just to get to the point where he could walk down the street with his head up.

  And then, as soon as he got there … but better to let him tell the story.

  “I was born in 1977, Long Island College Hospital, Brooklyn, New York,” he says. “My mother was Arsenia Brown, ‘Arsenia’ like Arsenio Hall, but with an ‘a.’ I have five sisters, three on my mother’s side, then two from my father.”

  What about his father?

  “I’ve been avoiding that question for a long time,” he says. “My birth certificate didn’t have my father’s name on it. A lot of fathers do that, because they don’t want to be on the child support.”

  Still, now thirty-five, a little shorter in stature but with the powerful build of an NFL fullback, Andrew still speaks fondly of his father. His dad was around in the Bed-Stuy projects when Andrew was growing up, and he still plays a role in Andrew’s life. But he never lived with Andrew and his mother.

  Andrew’s first home was in the Tompkins projects. “Four eighty-six Willoughby Avenue, that was our first place,” he says. It’s a grim little stretch of brick buildings built in the shadow of the elevated M subway line, dead in the center of Brooklyn, far from any museums or amusement parks or any other place white New York might visit. The absolute last place on your list of New York tourist destinations, perhaps, but one of the most heavily policed areas in the country. “A red zone” is how Andrew puts it.

  Thirty-five years later Andrew lives two avenues over from Willoughby, in an apartment on Myrtle Avenue. Except for the years he would spend in jail, he’s spent his whole life in this small stretch of project buildings. In thirty-five years, he traveled three blocks, but that trip was longer than it sounds.

  Two families lived in that Willoughby apartment, one belonging to his mother, and the other to her sister, Andrew’s aunt. “It was me, my two sisters, my cousin, his little brother, my aunt, and her son’s father,” Andrew says. “Oh, and my grandfather, Theodore Brown.”

  Andrew never got along with his aunt, a strict Jehovah’s Witness who wasn’t shy about disciplining her wild nephew. His grandfather was another story—Andrew loved his grandfather. He remembers one time his aunt was chasing after him to let him have it and he ran into his grandfather’s room and hid under the bed. “He let me hide there,” he remembers. “He was cool.”

  By 1986 Andrew’s aunt and her kids had moved out and gotten their own place. Andrew’s mother, Arsenia, was beginning to have problems. Just nine years old, Andrew would come home and see his mother sitting on a couch, nodding out, trying to stay awake. He didn’t understand anything about drugs at the time and didn’t know what was going on. One day his cousin—that would be his aunt’s son—came over and told Andrew to bring his sisters over to his aunt’s house around the block.

  “I thought it would just be for the afternoon,” he says. “It was for three years.” His aunt took custody of him and his sisters while his mother struggled to get clean.

  This was in 1986. New York in the 1980s was one of the angriest, most racially divided places in the world. This was the time of subway shooter Bernie Goetz, the Howard Beach massacre, and the Central Park jogger case. It was a time when blacks protesting the beating of four teenagers by a mob of young whites in the Brooklyn neighborhood of Bensonhurst could be met by a crowd that, unfazed by TV cameras, waved watermelons at them and chanted, “Niggers go home!” The city was a war zone, a tinderbox of race hatred ready to blow at any time.

  Andrew wasn’t aware of any of that at the time. When he first had to move out of his mother’s house, he was just a regular nine-year-old kid—the kids in the neighborhood called him “Cookie Ears” because he liked to eat chocolate chip cookies and he had little ears. He went to school and spent a lot of his time home listening to records like Kurtis Blow’s America on his cousin’s record player. “If I Ruled the World” was his favorite track. He listened to the dreamy rap-fantasy classic over and over again, closing his eyes, imagining being other places. If I ruled the world, was king on the throne / I’d make peace in every culture, build the homeless a home. He remembers his cousin used to get angry because he’d ruin the needles on the record player, trying to scratch like the MCs.

  In 1989 Andrew’s mother got clean, and he was able to go home. But things weren’t the same. After years of friction with his aunt, who Andrew suspected only wanted custody because it boosted the size of her welfare check, Andrew was turning angry. He started to get in fights and have other problems. Then in 1991 old Theodore Brown had a stroke and died right there in the apartment, in his bed. Andrew remembers he was given his grandfather’s room, the first time he’d ever gotten his own room, but the old man dying messed him up. “I didn’t even want the room,” he says.

  It was after that when he started getting into real trouble. Police caught him and some friends smashing an abandoned car in a parking lot, picked him up, and brought him back to his mother’s door. “They still did that back then,” he says now, wistfully. “I mean they’d just bring you home to your mother, instead of processing you.”

  Another time police saw him with a cap gun, mistook it for a real gun, and drew their own guns on him, telling him to drop the weapon. He dropped the weapon. Again, they brought him back to his mother, who was beside herself, as she was every time he got into trouble.

  She’d call Andrew’s father, who’d come over and straighten him out, but he always ended up back in trouble again. “I was starting to be in the streets,” he says, selling drugs, stealing. An older guy in the neighborhood taught him about stealing jewelry, taught him how to set people up, take their chains and rings. You could take the jewelry to a pawnshop, but sometimes it wasn’t even about the money. “Sometimes you just wore it,” he says.

  Nobody was calling him Cookie Ears anymore. Some of his friends caught him messing around one day with a pair of glasses, aiming them like they were a gun. The glasses were Liz Claiborne glasses, had a big “LC” logo on them. So people started to call him “LC.” He started to play around with the name, like it meant different things: “Loose Cannon” maybe, or “LoCo.” Or sometimes he’d be “Little Cookies.”

  By 1992 Arsenia was beginning to deal with serious health issues. She was a diabetic and had a bad heart, and she was going crazy over Andrew’s problems. It all came to a head early that year, during a school vacation. Arsenia was literally trying to keep Andrew from going outside; she didn’t want him in the streets and hanging out with the wrong people.

  Too sick to handle the growing boy herself, she asked Andrew’s sister Tanja to keep him in the apartment one night. Andrew made a scene and forced his way outside. His mother warned him that if he left, she’d lock him out. Andrew said fine, you do that. Out of spite, he stayed out all night.

  The next morning he came home and found his mother had been taken away to the hospital. She had literally been sick with worry. Andrew was devastated. He cried, made up with her. “I promised I would never get in trouble again,” he says now, adding that he really believes he meant it when he said it. But it didn’t last long. He got arrested one more time that fall, a robbery case that went to family court and got dismissed. Then, in May 1992, Andrew was arrested in a more serious case, an assault that grew out of an incident in which he and a bunch of neighborhood kids were joyriding in the elevator of a local high-rise project and got into an altercation with one of the residents.

  Andrew ultimately pleaded to a lesser offense in that case and got out with time served, but before he did, he spent the whole summer of 1992 in Spofford Juvenile Detention Center in the Bronx, a jail for minors that would eventually be condemned and shut down by the city in 2011 after generations of complaints about its filth a
nd brutality. In July 1992 he learned in a telephone call that his mother had been hospitalized again. She was, he was told, very seriously ill. Andrew to this day wonders if his arrest that summer played a role in her final illness.

  A few months later, in December 1992, Arsenia died. Andrew was actually selling crack when he heard the news. “There was a scrap metal yard near where I lived, and all the workers there were addicts,” he says. “I was standing there when my stepfather came and found me.”

  It took most of the next ten years for Andrew to get over that series of events—his guilt over what happened, the feeling that he’d put his mother in the hospital, the memory of being on the streets selling drugs when she died. But also the anger about the juvenile charge he took in the elevator assault case, an incident he guessed would end his life before it even began.

  After his mother died, Andrew went off the grid. He stopped going to his probation meetings, stopped going to school. The housing police came to take him away from his mother’s apartment, took him and his sisters to a youth home in the Bronx.

  Andrew walked out of the waiting room of the youth home and never came back. The next six to seven years of his life were a blur of guns, arrests, jail time, pointless violence.

  Andrew spent most of the early 1990s on a tour of the correctional facilities of New York State, everywhere from youth prisons like Spofford and Harlem Valley Secure Center to Rikers Island, to the Ulster Correctional Facility, to prisons in Catskill and Coxsackie. At each stop, he fought constantly. Ask him about Rikers, his first adult jail, and he’ll tell you he got bashed over the head with a scrub brush practically the moment he entered the facility and then had to fight fifteen or twenty times before he found a way to do his time. “It was at least that many before I got relaxed and I was just waiting to go home,” he says. He got out of Rikers in 1996 and was free for exactly thirty-four days before he got busted again on a weapons charge and went back inside. He fought so much at his next jail, in Ulster County, that they moved him to Greene County, where he got involved in a stabbing and got moved to Coxsackie, where at one point he served 365 consecutive days in the hole, supposedly for a verbal threat.