Blurts & Spasms

This question seems focused around whether folks have equal rights when they have different resources. And yes of course in practice the haves and have-nots are not really equal “under the law” or in many other contexts. Some examples:

1. Your million dollars can buy you an excellent lawyer, whereas my lack thereof may mean I must rely on an overworked and underpaid pubic defender. Any reasonable and observant person knows that many innocent poor people go to jail simply because they do not have a competent defense, whereas many rich people avoid court judgements altogether because they have excellent and expensive attorneys. In addition, due to how cash bail laws work in reality in the U.S., a poor person is often not able to post cash bail, and thus loses their job because they remain absent from work (and then their housing after that, etc.) before they have even gone to trial. In essence, then, a poor person is often punished as “guilty” with pretrial incarceration, where a rich person is not. That is certainly not “equality under the law.”

2. If circumstances beyond my control (natural disasters, pandemics, economic downturns, a physical disability, a sudden illness, etc.) cause me to lose my job and become homeless, my choices will be very limited if I don’t have someone to advocate for me or help me with my situation. Statistically, I am very likely to remain homeless, jobless and/or sick. You, on the other hand, can much more easily relocate, stay in a hotel, buy a new home outright, get the healthcare you need, and so on. You have a much greater probability of recovering or adapting — much more easily than me. But the point is that “under the law” we may appear to have equal opportunity to rent or own a home, or be protected in some way from further calamity, yet in reality we really don’t.

3. If you start a family and end up with a special needs child, that million dollars will come in very handy in assisting your child with special education, custom equipment, therapies, and so on, so that they may actually be able to become functional and independent over time. If my family suffers the same challenges, the likelihood that my child will gain the same level of independence and function is (statistically and realistically) much lower. Once again, “under the law” both of our children may have a right to equal levels of education or healthcare…but in reality your child will effectively have “more rights.”

I could go on, but these examples will hopefully shed light on the reality that a paucity of personal resources has very clear negative impacts on personal liberty, and an abundance of personal resources has very clear positive impacts, even under laws designed to treat them equally. To believe otherwise is the result of either ignorance of the realities of being poor, or ideological convictions that also have no basis in fact.

My 2 cents.

Question from John Anderson:

I am decidedly in the “poor person” category. I have also been on the losing end of a court case against a wealthy person. I am not blind to the advantage of having wealth, especially as it applies to the ability to hire better lawyers. That doesn’t change my view on the nature of my equality under the law with that person. I had as much right as he did to hire better lawyers even if I hadn’t the ability. The fact I could not afford to do so is not proof of a lack of the right to do so. Both he and I had to make our case before the judge. The very fact that we both did so is in fact proof (in my mind, anyway) that we were both equal under the law. I was not barred from appearing before the judge to argue my case. There was no assumption of guilt for me, nor prohibition against making whatever arguments I could to defend my position. And of course, like everyone who goes before the judge, I thought my position just and his unjust, and felt wronged by the judge’s decision. I also admit that the other man felt every bit as justified in his position as I did, and was gratified that the judge ruled with him. Our sense of justice is often subjective.

I can’t afford to purchase a new house on the beach, but I have the right to do so. No law forbids me from doing so or permits only those with a certain level of wealth to do so. I can’t act well enough to be the next Batman, but I have the right to do so. No law forbids me or allows only actors of a certain ability. I can’t run fast enough, catch well enough, etc. to play in the upcoming Superbowl, but I have the right to do so. No law forbids me from doing so or permits only those with a minimum physique, etc. If I wanted to, I could take acting lessons, I could hit the gym, I could invest wisely, and gain the skills to be the next Batman, or the muscle to be the Superbowl MVP, or the wealth to buy that beach house. There is no law that forbids from doing any of those -I am limited only by my current bank accounts, skills, fitness.

Wealth, like skill, good looks, physical strength and intelligence, conveys advantages or privileges, not rights. Beauty, physical stature and abilities, natural intelligence, aptitude and ingenuity, are all often inherited from our parents. Why shouldn’t wealth be, if they have it to give? Who has the right to decide how to dispose of their wealth?

You argue your point very well! And I do appreciate the distinction between “ability” and “availability” that you are making. If rights are only meant to convey equivalent “availability” rather than equivalent “ability,” then my side of this argument has no merit.

Except protected rights ARE also meant to convey equivalent ability, and not just the same availability. We are not talking about sports, or fame, or in fact the earning of wealth itself — all of which could fairly fall within the “ability” framework of your argument. We are instead talking about equality under the law, which has always expressly implied more than just equal “availability.” Some examples:

1. If I can’t afford an attorney, one will be appointed on my behalf. Why? Using your argument, I should be able to bone up on the law and defend myself, or take out a loan against my house to hire a good attorney, etc. Right? Except that’s not a realistic expectation, and so public defenders have been part of proposed equal ABILITY of an adequate self-defense. These attorneys would not exist if equivalent ability was not part of the equation of equal justice.

2. In the same way, a variety of special protections exist under the law for the disabled, children, the elderly, and so forth. Why? If these individuals are expected to somehow rise to the occasion when given the same “availability” of their protected rights — regardless of their objective abilities (or lack thereof) — why should they receive any special treatment at all? Because part of equal rights under the law is to attempt (successfully or not) to level the playing field with respect to one’s ability to execute or achieve those rights.

3. In an admittedly extreme extension of logic, if I am accused of vehicular homicide but subsequently end up in a coma from a brain aneurysm, according to your reasoning I should be tried in absentia for my crimes. It’s not the court’s fault (or the victim’s family’s fault, or society’s fault) that I can’t stand trial. Justice must be served. Except, as I’m sure you would agree, I must be “competent to stand trial” before that trial can proceed. Ergo: I must have adequate “ability” to answer for my alleged crime.

So, to put a very fine point on it, in any court of law, if my advantage in ability is extraordinary, and my opponent has profound deficits in their ability, there is not going to be anything close to “equality under the law” unless a judge makes special provisions on my opponent’s behalf, or both parties are forced into one of many leveling processes (such as mitigation, expedited jury trials, etc.). This is a well-known problem with many imperfect solutions. And, unfortunately, a hefty wallet can almost always find ways around these leveling approaches.

In reality, corporate officers of corporations who have knowingly killed tens of thousands of people through deliberate malfeasance (tobacco, pharmaceutical, and petrochemical industries for example) have never been held accountable for their genocidal profit campaigns. But innocent people who can’t afford a good defense have ended up on death row with alarming frequency. So anyone sincerely concerned with justice must ask: “Why is this so?”

Well…it’s for precisely the same reason that the wealthiest corporations often pay little to no taxes: they can afford the expertise to skirt “equality under tax law” and tilt the scales in their favor.

I hope this clarifies things a bit.