Our criminal justice system is no “system” at all

Law and JusticeWhen we think of the Salem witch trials or Sacco and Vanzetti, our impulse is to discount that anything like that could ever happen now.

Yet it does.

We have all sorts of things going wrong in our judicial “system.”

Nor has it gotten any better in the Trump-Sessions notion of “criminal justice.”

We have too many cases because “stats” drive funding rather than policy driving order and peace.

The more sensational the case, the more winning the case “trumps” doing justice.

The more sensational the case, the more likely that the accused doesn’t have the resources to fight back.

We flood our courts with “drug” cases but not like the ones I handled as a federal prosecutor in New York against large heroin suppliers.

We spend our tax dollars chasing mostly kids and adults who possess to use, in such small quantities, mostly for personal use, and they are arrested on ruses – faux probable cause to toss cars with dogs – a kind of catch and release if they find nothing after the “search” – all so they can affix a stigma to the apprehended for pot or prescription drugs that, by the fact of arrest, may haunt their quality of life, foreclosing opportunities life-long.

If you fit one of the categories of persons that we “target,” though we say we don’t, watch out, if you’re young, if you’re a person of color, if you are even suspected of being from another nation, whether illegal or not, watch out, you are more likely to be stopped, questioned, provoked, and taken into custody.

If you end up in custody and can’t afford counsel, then they will likely set bail, keep you in custody, listen and record your jail calls, and only afterwards appoint an attorney who may or may not seek to reduce bail.

When they are setting bail, you’ll be sitting at a detention facility talking to a tv camera, broadcast to a court room miles away, making untutored statements that, if informed, you likely would not make at all.

If you go to court on Mondays after a weekend, you can get a sense of the breakdown of whom we prosecute.  In the courts that are not of record, where the gauntlet in our criminal justice system often begins, you can study the demographic of enforcement in any community.

When bail is set, it is more often a measure of your resources than about the likelihood that you’ll show up for your next court appearance.  If the case is sensational, it doesn’t matter how certain you will show up, the bail ends up matching the charges rather than who you are as a bail risk.

Most judges across the nation are former prosecutors who have never defended any one Accused of a crime; indeed, many judges have a low unstated regard for those who represent the Accused.

The best judges are victims to the crashing press of business, to move cases – again it’s the “stats.”  I had one judge ask me why didn’t  I use “my influence” to get more judges on the bench.  I told him that he had an enlarged view of what influence I had, though I agreed with him.  He has since left the bench.  I have asked judges to confer to discuss how we could do what that judge asked.  My calls have gone unreturned.

When one is arrested, you are told the charge, but you are not usually given the affidavit saying why you were charged.  You can get it but it’s not automatic.

At every turn, most prosecutors believe they do best in their prosecutions by “hiding the ball,” keeping the evidence from you that sets forth what happened.  I was taught as a prosecutor to have an open file unless it was going to result in danger to a witness or violate national security.  When you have a prosecutor who has an “open file” policy, they often invite you to copy the file by hand.  If there’s a recording, you can hear it but can’t always get a copy to make your own transcript.

Prosecutors rely on snitches in and out of jail who get deals – not very reliable evidence.  Prosecutors rely on eye-witnesses – also not very reliable evidence.  Daily in our courts we use junk science.  An easy example is the notion that a 65 year old man, when cold sober, ever walks heel toe or stands with one leg forward off the ground, and that that indicates anything but an easy way to compel a Breathalyzer.

The entire “system” would break down if almost everybody charged didn’t plead guilty to something.

When you go to trial, jurors who say they understand the presumption of innocence, on questioning, almost always say, “I’ll wait and see what explanation the Defendant has.”  The court will often ask the potential juror, can the juror put one or other wrong-headed bias they have out of their head and hear the case fairly.  “Sure,” the juror invariably says.

I heard a prosecutor tell jurors that he knew they didn’t want to be there.  He may have been right.  But what can you expect from a jury that doesn’t want to be there, and you go and reinforce their wrong-headed indifference to public service?

When we sentence someone, we have guidelines based on average sentences imposed on others, though we say guilt and punishment is individual.  We have mandatory sentences for certain offenses because that’s how legislatures convince the public that they are fighting crime.

We have a whole industry built up that sustains with jobs whole communities with our incarceration population – larger per capita than any place else in the world – in the land of the free and the home of the brave.

So, our “justice” system is the best in the world?  I don’t think so.

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