When Evil Is Routine: The Law as a Shield

Hannah Arendt’s analysis of the “banality of evil” challenged the comforting belief that great harms are only committed by obvious villains. Her work points to something more disturbing: cruelty can be administered through routine, bureaucratic incentives, and institutional convenience — because evil can be normalized.

The United States often tells a story about freedom—founding ideals, rule of law, equal justice. But there’s another story braided through the first: a system built to protect power. A system where exploitation is not just committed—it’s managed. Where the law doesn’t only punish harm; it can also hide it, bargain with it, and launder it into legitimacy.

Today, we’re tracing a through-line: from the founding era—when some of the nation’s most celebrated leaders held people in slavery—to a modern case study in elite impunity: the Jeffrey Epstein trafficking operation and the way institutions repeatedly narrowed accountability and limited transparency.

This is not a story about “a few bad people.” It’s about patterns—how protection is produced (Waldstreicher, 2009; Harris, 1993; Davis, 2007).

Let’s start with a contradiction that is not a footnote, but a foundation: the early republic’s ideals coexisted with a legalized economy of human ownership.

We know the outlines—slavery was widespread. But zoom in and the mechanism becomes clearer: enslaved people were treated as property, yes—but also as labor, collateral, and status. This was a system that organized wealth and social power through control over other human beings.

Consider the story of Ona Judge—enslaved by George Washington and Martha Washington—who escaped in 1796. Historian Erica Armstrong Dunbar documents how the Washingtons used the machinery available to them to pursue her—showing how the same systems that espouse “freedom” were entirely inclusive of coercion and were indeed inextricably connected (Dunbar, 2017).

And consider what historians have established about Thomas Jefferson and Sally Hemings as a window into how sexual coercion and reproductive control were woven into slavery’s everyday reality—especially for enslaved women, whose bodies could be exploited with near-total impunity because the law treated enslaved people as property and denied them legal standing and meaningful protection. Historian Annette Gordon-Reed situates this in the lived world of the Hemings family and the legal structure that foreclosed consent and remedy for enslaved people (Gordon-Reed, 2008).

So from the beginning, we’re looking at a power arrangement: people with social, political, and economic authority—and people they could harm, trade, or silence, legally (Finkelman, 2014).

A common misunderstanding is that slavery was simply a moral failure that the law failed to stop. In reality, the law helped build slavery’s durability.

Historian David Waldstreicher argues that although the Constitution never uses the word “slavery,” multiple clauses were structured to protect slaveholding interests and embed slavery’s power into national governance (Waldstreicher, 2009).

Legal scholar Cheryl I. Harris gives us a crucial lens for what that protection looks like in practice: whiteness as property—a set of enforceable benefits, expectations, and immunities that law can confer and defend, often invisibly. (Harris, 1993).

Put simply: if the law can define people as property, it can also define some people as protectable—more credible, more defensible, more “worth” preserving—than others.

That architecture doesn’t vanish when slavery ends. It adapts. It evolves.

The abolition of slavery is one of the most important legal transformations in U.S. history. But the 13th Amendment includes an exception: involuntary servitude is banned except as punishment for crime (U.S. Const. amend. XIII).

That exception became a hinge—opening the door to systems like convict leasing and coerced labor after emancipation. Journalist-historian Douglas A. Blackmon documents how punishment regimes were used to re-enslave thousands through forced labor deep into the 20th century (Blackmon, 2009).

And those logics echo forward: when extraction is routed through “legal” categories, the system can keep reproducing racialized harm while narrating itself as neutral. (Alexander, 2010).

So when we say “the system is operating as designed,” we’re pointing to a recurring dynamic: harm and extraction are repeatedly routed through legal categories that create distance, deniability, and protection for the powerful.

Nowhere is that clearer than in modern cases where elite networks harm vulnerable people—and institutions manage the fallout.

Criminology has long had a name for this pattern: white-collar crime—offenses committed by people with status and occupational power, often within legitimate institutions. The concept is associated with sociologist Edwin H. Sutherland, who argued that serious lawbreaking by elites should be recognized as crime—not minimized as mere “misconduct.”

In the scholarly tradition that follows Sutherland, researchers emphasize that consequences are shaped not only by what happened, but by class position, institutional relationships, and who the system treats as a “real criminal” in the first place. (Sutherland, 1940; Geis, 2010).

Legal scholar Angela J. Davis makes a related point about prosecutors: their discretion is enormous—and when systems reward conviction rates, institutional harmony, or political safety, discretion can reproduce inequality in how victims and defendants are treated (Davis, 2007).

These lenses set up our case study: how elite impunity is built—through decisions, incentives, and institutional self-protection.

Between 2006 and 2008, federal prosecutors in Florida investigated allegations that Jeffrey Epstein had sexually abused underage girls.

In November 2020, the U.S. Department of Justice’s Office of Professional Responsibility released an executive summary reviewing how prosecutors handled that investigation. The summary describes a federal non-prosecution agreement intended to end the federal investigation, routing the outcome into a state plea process, and it discusses serious problems in how victims were treated and informed (DOJ OPR, 2020).

Victims and their attorneys later challenged the secrecy and process under the Crime Victims’ Rights Act. In re Wild, the United States Court of Appeals for the Eleventh Circuit (en banc) held that the CVRA does not provide a private right of action allowing victims to seek judicial enforcement of CVRA rights outside the confines of an existing proceeding. The court declined to resolve the broader question of whether CVRA rights exist pre-charge; the practical result, in that posture, was that victims could not judicially enforce CVRA rights against a pre-charge non-prosecution agreement. (In re Wild, 994 F.3d 1244 (11th Cir. 2021) (en banc)).

Legal scholars have argued that this structure invites a workaround: if negotiations occur “pre-charge,” victims’ statutory participation can be functionally sidelined (Cassell, Peck, & Edwards, 2021).

Notice the pattern:

• A powerful man accused of systematic sexual harm to minors.
• A process conducted in ways that limit transparency.
• A legal structure that, in practice, constrains victims’ participation.
• And the end result: accountability is narrowed into technical channels.

This is what “the law as a shield” can look like.

Elite protection rarely relies on one decision. It’s an ecosystem.

One part is institutional intermediation—the way respected organizations, from firms to banks, can normalize and sustain elite networks. In civil litigation, major financial institutions faced lawsuits over their alleged ties to Epstein’s finances; those cases resulted in large settlements approved by courts. Settlements can be crucial for compensation, but they are also a form of containment: they can resolve claims without trial and typically include no admission of wrongdoing, limiting what becomes public (Reuters, 2023a, 2023b).

Another part is social insulation—what gets dismissed as rumor, what gets labeled “credible,” who gets believed. Harris’s “whiteness as property” framework helps us see how legitimacy is unevenly distributed, so that some people’s word is treated like evidence and others’ like noise (Harris, 1993).

And another part is legal chokepoints: statutes, standing rules, NDAs, procedural hurdles, and discretionary choices that can turn “everyone knows” into “nothing can be proven,” even when harm is substantial.

It matters to say: accountability is not entirely absent. In 2022, Ghislaine Maxwell was sentenced to 20 years in prison for conspiring with Jeffrey Epstein to sexually abuse minors (U.S. Attorney’s Office SDNY, 2022).

But uneven accountability is part of the pattern: punishment often lands on some actors more than others—while broader enabling structures remain intact.

That brings us back to the founding-era through-line: slavery was not just interpersonal cruelty; it was an entire system of governance and profit. And elite impunity today is rarely just one predator; it’s a network of permissions, silences, incentives, and protections.

If we want to tell the truth about the United States, we have to tell a double story:

• the story of ideals, and
• the story of who those ideals were designed to exclude.

From enslaved people pursued by the founders, to victims shut out of crucial negotiations, to settlements that substitute for public reckoning—this isn’t just hypocrisy. It’s design.

So what changes the design?

1. Victims’ rights with real teeth—including enforceable participation that cannot be avoided through procedural timing. (Cassell, Peck, & Edwards, 2021; In re Wild, 2021).
2. Transparency by default around non-prosecution and deferred prosecution decisions—especially in high-power cases. (DOJ OPR, 2020).
3. Institutional accountability that goes beyond fines—structural changes, responsible executives, and meaningful public disclosure. (Geis, 2010).
4. And a cultural shift: refusing the temptation to treat sexual violence as the work of “exceptional monsters,” rather than a pattern normalized and protected by institutions. (Sundaram & Jackson, 2018).

Because the question isn’t only: Who did harm?
It’s also:

Who made it safe to do harm—again and again and again?

References

Alexander, M. (2010). The New Jim Crow: Mass incarceration in the age of colorblindness. The New Press.

Arendt, H. (1963). Eichmann in Jerusalem: A report on the banality of evil. Viking Press.

Blackmon, D. A. (2009). Slavery by another name: The re-enslavement of Black Americans from the Civil War to World War II. Vintage.

Cassell, P. G., Peck, J., & Edwards, B. (2021). Circumventing the Crime Victims’ Rights Act: A critical analysis of the Eleventh Circuit’s decision upholding Jeffrey Epstein’s secret non-prosecution agreement. Michigan State Law Review, 2021, 211–253.

Davis, A. J. (2007). Arbitrary justice: The power of the American prosecutor. Oxford University Press.

Dunbar, E. A. (2017). Never caught: The Washingtons’ relentless pursuit of their runaway slave, Ona Judge. 37 Ink/Atria Books.

Geis, G. (2010). Sutherland, Edwin H.: White-collar crime. In F. T. Cullen & P. Wilcox (Eds.), Encyclopedia of criminological theory (pp. 911–916). SAGE.

Gordon-Reed, A. (2008). The Hemingses of Monticello: An American family. W. W. Norton & Company.

Harris, C. I. (1993). Whiteness as property. Harvard Law Review, 106(8), 1707–1791.

In re Wild, 994 F.3d 1244 (11th Cir. 2021) (en banc).

Reuters. (2023a, October 20). US judge approves Deutsche Bank $75 million settlement with Epstein accusers. https://www.reuters.com/legal/us-judge-approves-deutsche-bank-75-million-settlement-with-epstein-accusers-2023-10-20/?utm

Reuters. (2023b, November 9). JPMorgan’s $290 million settlement with Epstein accusers approved by US judge. https://www.reuters.com/legal/us-judge-weigh-jpmorgans-290-million-settlement-with-epstein-accusers-2023-11-09/?utm

Sundaram, V., & Jackson, C. (2018). ‘Monstrous men’ and ‘sex scandals’: The myth of exceptional deviance in sexual harassment and violence in education. Palgrave Communications, 4, Article 147. https://doi.org/10.1057/s41599-018-0202-9

U.S. Department of Justice, Office of Professional Responsibility. (2020, November). Executive summary of report: Investigation into the U.S. Attorney’s Office for the Southern District of Florida’s resolution of its 2006–2008 federal criminal investigation of Jeffrey Epstein and its interactions with victims during the investigation. https://www.justice.gov/opr/page/file/1336471/dl?utm

U.S. Attorney’s Office, Southern District of New York. (2022, June 28). Ghislaine Maxwell sentenced to 20 years in prison for conspiring with Jeffrey Epstein to sexually abuse minors. https://www.justice.gov/usao-sdny/pr/ghislaine-maxwell-sentenced-20-years-prison-conspiring-jeffrey-epstein-sexually-abuse?utm

Waldstreicher, D. (2009). Slavery’s Constitution: From Revolution to ratification. Hill and Wang.