While I’m not a lawyer, I’ve done a lot of writing on legal issues. This is because at an early age I became interested in the nature of the broad spectrum of civil rights issues faced by this country. My interest became an obsession at the age of ten. My parents, who were quite liberal, allowed me to stay up way past my bedtime to watch Edward R. Murrow bravely attack Senator Joseph McCarthy for his Communist Witch Hunt, by documenting the anti-constitutional excesses he used to destroy people’s lives and careers. Months later they kept me home from school to watch the Army-McCarthy Hearings which directly led to McCarthy’s downfall. On our twelve inch, black and white TV, I watched this famous scene:
“On June 9, 1954, the 30th day of the Army–McCarthy hearings, McCarthy accused Fred Fisher, one of the junior attorneys at Welch’s law firm, of associating while in law school with the National Lawyers Guild (NLG), a group which J. Edgar Hoover sought to have the U.S. Attorney General designate as a Communist front organization. Welch had privately discussed the matter with Fisher and the two agreed Fisher should withdraw from the hearings. Welch dismissed Fisher’s association with the NLG as a youthful indiscretion and attacked McCarthy for naming the young man before a nationwide television audience without prior warning or previous agreement to do so:
“Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.”
When McCarthy tried to renew his attack, Welch interrupted him:
“Senator, may we not drop this? We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”
McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:
“Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out. And if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further.”
The gallery erupted in applause.”
The drama of this distinguished lawyer chastising one of the most powerful men in the United States at the time and silencing his cruelty, was one of the defining moments of my life. It spurred a lifelong interest in the Constitution, the Law and the rights of the American People. Today, among other ills, I believe that our American Criminal Justice System is broken. Let me explain why I believe that.
While our Constitution allows us freedom of expression, thought and association, in the 40’s and 50’s, “Cold Warriors” began to institute witch hunts to root out those Left Wingers they deemed held radical political beliefs. People’s lives were destroyed because in their youth they had been part of various political groups that Congressional Committees deemed subversive. These actions tended to make citizens afraid to disagree with the “Cold War” excesses that were already beginning to give outrageous power to the Corporate/Military/Intelligence Complex. An analogous situation is arising to quiet those who espouse “internet freedom and openness,” as illustrated by the Aaron Swartz suicide detailed by these two posts at Jonathan Turley’s website.
Rather than focus on that particular case, to which those two posts provide excellent insight, I would rather look at certain aspects of our legal system today that serve to destroy the notion of a Criminal Justice System that operates fairly towards each citizen and make that system into an instrument of oppression. There is in my opinion so many things wrong about American Criminal Jurisprudence that covering the entire range of “injustice,” would require much larger space than this post can provide. So I would like to touch on what I think are the highlights corrupting this system.
Unfairness of Representation
The truth is that a person charged with a crime in America today needs the means, or connections, to have a good legal team. Wealth is a key decider of ones’ chances in a Criminal Trial and in the case of loss, the harshness of the imposed penalty. The prosecution has the advantage of virtually unlimited funds and powers to make their legal battle, a “David and Goliath” situation, without David’s advantage of God on his side. Another component of this is that Prosecutors tend to press cases that they think they can win and also avoid pressing charges in cases involving very wealthy and/or powerful people. Prosecutors have the advantage of Media publicity and a public that believes “where there’s smoke there’s fire”.
Indigent defendants are at a loss and despite the best efforts of the dedicated people who are Legal Aid Lawyers, the disparity in resources usually lead to defeat, despite exculpatory evidence. We also know that Black and Latino people make up the majority of those convicted and incarcerated in this country. I’ve written about this here and also here. This unfairness goes beyond just affecting people who would be considered poor. The average middle-class American would be overwhelmed with the cost of mounting a defense to a criminal prosecution. I think that raising bail money alone for charges considered major, would be a problem for a majority of Americans and even when found innocent the negative effects of the charges would take years, if ever, to end. An even-handed Criminal Justice System should give each defendant a fair chance to fight the charges against them. We have been led to believe that our Criminal Justice System represents the model of even-handed justice, yet this is not the case today in our country.
Under Funding of the Court System
To be considered to be a “fair” trial, a trial should a speedy trial. This is not the case and we see instance after instance of a trial taking many years between arrest, incarceration and verdict. While some might argue that this is caused by lawyers seeking delays, this answer is for the most part specious. Instead, these untoward delays are the result of under funding the court system which results in over crowding its dockets. From the Prosecution’s side, they will often delay trials to gain further evidence for their case. This ignores the idea that in arresting someone, there should be a presupposition that the evidence of guilt has already been obtained. The prosecution extends the length of the incarceration of the accused by making often outrageous bail requests (on “bail able” offenses) that go far beyond a defendant’s ability to pay. This skews the system against those without financial resources and also increases the Prosecution’s chances of getting a plea bargain leading to an admission of guilt and conviction.
“Plea Bargaining” an Insult to Justice
Due to the overcrowding and under funding of the Judicial System “plea bargains” arose to clear the dockets. In my opinion “plea bargaining” is a desecration of justice. It lead Prosecutions to “overcharge” as a means of threatening a defendant who would assert their innocence. In cases where there are multiple defendants, it allows one or more defendants to make a deal for their testimony against the others. The bargained for testimony is usually self serving to the witness and to the prosecution. Plea bargaining often leads to unequal results, sometimes even giving guilty defendants lesser sentences than their crime deserves. About 90% of criminal cases are “plea bargained” and thus the notion of trial by jury is fast becoming extinct. This was put so well in a paper by the Cato Institute titled “The Case Against Plea Bargaining”:
“Because any person who is accused of violating the criminal law can lose his liberty, and perhaps even his life depending on the offense and prescribed penalty, the Framers of the Constitution took pains to put explicit limits on the awesome powers of government. The Bill of Rights explicitly guarantees several safeguards to the accused, including the right to be informed of the charges, the right not to be compelled to incriminate oneself, the right to a speedy and public trial, the right to an impartial jury trial in the state and district where the offense allegedly took place, the right to cross-examine the state’s witnesses, the right to call witnesses on one’s own behalf, and the right to the assistance of counsel.
Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom. Given the Fifth Amendment’s prohibition of compelled self-incrimination and the Sixth Amendment’s guarantee of impartial juries, one would think that the administration of criminal justice in America would be marked by adversarial trials — and yet, the opposite is true. Fewer than 10 percent of the criminal cases brought by the federal government each year are actually tried before juries with all of the accompanying procedural safeguards noted above. More than 90 percent of the criminal cases in America are never tried, much less proven, to juries. The overwhelming majority of individuals who are accused of crime forgo their constitutional rights and plead guilty.” http://www.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf
That this articulate attack on plea bargaining comes from the very conservative Cato Institute illustrates that a fair court system is not a political notion, but one that goes beyond political divides. It is a basic Constitutional issue and one that has degraded our criminal justice system as this paper from Cato goes on to point out:
“The rarity of jury trials is not the result of criminals who come into court to relieve a guilty conscience or save taxpayers the costs of a trial. The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials. Plea bargaining consists of an agreement (formal or informal) between the defendant and the prosecutor. The prosecutor typically agrees to a reduced prison sentence in return for the defendant’s waiver of his constitutional right against self incrimination and his right to trial. As one critic has written,
“The leniency is payment to a defendant to induce him or her not to go to trial. The guilty plea or no contest plea is the quid pro quo for the concession; there is no other reason.”
Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense lawyers. But is it proper for a government that is constitutionally required to respect the right to trial by jury to use its charging and sentencing powers to pressure an individual to waive that right? There is no doubt that government officials deliberately use their power to pressure people who have been accused of crime, and who are presumed innocent, to confess their guilt and waive their right to a formal trial. We know this to be true because prosecutors freely admit that this is what they do.”
Political Nature of Judges
The appointment of Judges in this nation has always been one deeply intertwined with politics and with wealth. Thus often the most important cog in our political system, the person who is to ensure that each case is fairly adjudicated, are many times lacking in the skills and insight to do the job fairly. In those venues where Judges run for their offices, the most important factor is party endorsement. With the need for party endorsement comes the obligation to adhere to “unspoken rules”. In areas where judges are appointed, their appointment is usually beholden to the “powers that be” whether they represent political party, or local wealth. We know factually that there have been powerful efforts by the backers of ultra Conservative movements to have judges put into position that represent their political interests. I don’t believe it is a coincidence that our Constitutional protections have deteriorated severely in the last 50 or so years. While no one can really escape partisan feelings, we should be able to expect that a judge can rise above their own personal beliefs to administer the Law fairly. An expectation it seems to me that has fallen far short of its mark in recent years and contributes to the breakdown of our Criminal Justice System.
Prosecution as a Career Stepping Stone
In a system truly interested in justice the position of Prosecutor would be one of impartiality, with their actions based on the evidence and on the Law. Sadly, for most of American history this has not been the case. Many who become prosecutors do so because they understand that they could use their “record” in that office to advance their careers. Their conviction rate and their prosecuting noteworthy trials elevate their public fame. Many of today’s most prominent politicians began their legal careers as prosecutors and used their office to advance themselves. Rudy Giuliani parlayed his headline grabbing antics as a Federal Prosecutor into great wealth and a political career that made him a Presidential candidate. Yet most of the “convictions” that brought him fame and media attention were overturned at the appellate level. His grandstanding, such as the arrest of a young stockbroker accompanied by TV cameras ultimately resulted in the man’s acquittal, yet the impression of Giuliani as a “fighter for justice” remained in the people’s minds.
The other problem with the prosecutorial system is that people seeking to advance their public careers, either in politics, or in pursuit of wealth, are reluctant to target people with wealth and power. To build a career one must not make enemies of those people who you might need to call upon for aid and support in the future. I find it interesting that Bernie Madoff, who in essence stole from the rich and powerful is in prison for life, while the CEO’s of large financial institutions are not held liable for the frauds their company has admitted to and the result is that their firms are being fined trifling amounts in restitution for their admitted criminal activity.
The Ongoing Corruption of Law Enforcement
I have a great deal of respect and empathy towards Law Enforcement Officers, despite what some may think from my writing. Having worked in a large Municipal Bureaucracy for many years, I can truly empathize with people who work for law enforcement bureaucracies, which are similarly dispiriting. I believe that most people who go into law enforcement start out filled with idealism and the belief that the pursuit of justice is a noble cause. Far too many of those who made that idealistic choice have found themselves corrupted by both their fellow officers and by a politically influenced bureaucracy that robs them of their idealism. The training in many law enforcement agencies reinforces an “us vs. them” mentality, rather than putting emphasis on an officer’s duty to uphold our Constitution and our laws. There is also an undue influence of politics upon Law Enforcement Officer’s that comes down from the higher levels of the bureaucracy they represent. There is lately the increased militarization of LEO’s which leads to the notion that any orders from a “superior” are to be followed to the letter.
There is a further factor, however, that I think leads to corruption of LEO’s. Historically in the United States, law enforcement meant the protection of the propertied class, or of White citizens against the “encroachments” of people of color and or ethnic immigrants. In the south this meant enforcement of “Jim Crow”, but is was not simply a Southern problem. Many city police departments had recruiting drives in Southern States to find officers who had gained experience enforcing “Jim Crow”. The Los Angeles PD and the Detroit PD were famous for this. In NYC the Irish immigrants went from a people disdained, to the position of prominence in a police force “controlling” the Blacks emigrating from the South, the next generation of ethnic immigrants and the Puerto Rican influx. The message disintegrating the ideals of many new police officers was merely the cynicism that arose as they saw what their “real duties” should be. some refused to take part in this cynical view of enforcing the law and kept trying to fairly perform their duties, for some like Frank Serpico this almost led to his death as he was shot by a fellow officer to coverup a police run drug trafficking operation.
A third factor is that those officers who rise to the ranks of Detective and are thus the ones charged with investigating crime, are promoted into a dysfunctional system where expediency takes precedence over justice. Too often they are overloaded with “caseloads” that demand quick turnover, or else they’ll see their career advancement possibilities diminished. The detective soon learns that their superiors are more interested in “clearing” cases, rather than pursuing justice. This leads even the best of detectives to have a narrow focus on who they suspect and pursue that doggedly, even though other evidence might present itself.
Public Ignorance of our Criminal Justice System
While most people with some knowledge of our Criminal Justice System understand its purposes and its flaws, the general public is for the most part ignorant of the issues. While I’ve heard some elitists blame this on the level of intelligence of the general public, I don’t agree that most people lack the intelligence to understand what is at stake in our Criminal Justice System. I believe that much of the problem of the public’s lack of knowledge is twofold.
The first is that our public schools no longer spend the years of school teaching the nature of our Constitution and how our government works. My own education through high School was in public schools until graduation in the early 60’s. By the time I graduated I had a pretty complex understanding of our Constitution, of our governmental structures and of our legal system. I know though from the education of my daughters (they went to excellent public schools) that what had been so much a part of my own Civics (Social Studies) curriculum had been simplified to the point of becoming incomprehensible. The more detailed views of our Constitution and our legal system have been left to the collegiate level and unfortunately by then pre-judgments and lack of understanding a citizen’s constitutional protections have already become relatively entrenched and misconstrued.
The second basis of public ignorance of the criminal justice system comes from propaganda that sometimes is purposeful and sometimes is inadvertent. More than 50% of our television shows are police procedurals, of various forms, which show crimes being solved and justice being handed out in the convenience of one hour, less commercial time. The portrayal is overly simplistic and creates a “good guy police/bad guy criminal” counterpoint. The overt propaganda we see on TV can be seen in the news conferences and press releases of police and prosecutors. Despite what jurors might swear to the judge, the majority of them are aware of the negative publicity regarding the defendant and have had “evidence” leaked to them via TV. By the time a defendant comes to trial in a well-publicized case many possible jurors have already made up their minds and their mindset is rigid. With these factors interacting with the views of the public, is there any cause to wonder that so much has been done to destroy our Constitutional safeguards, without widespread public protest?
These are my views of our Criminal Justice System today and to me it is “broken”. As I began this post detailing how the “McCarthy Years” shaped my outlook on criminal justice, it was done as an admission that my views today may be colored by my epiphanies back then.