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The Justice System Is Criminal
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On January 23, 2017, I asked, “Are Americans Racists?” I pointed out examples where racist explanations prevail over empirical fact. I did not write that there is no racism in America. I said that racism is not the be-all and end-all explanation of American history and institutions. The point I made is that racist explanations are often inadequate and both work against racial harmony and blind us to more general and more serious problems. Perhaps the worst of America’s failed institutions is the criminal justice system. The US has the largest prison population in the world, not only as a percentage of the population but also in absolute numbers. “Freedom and democracy” America has an absolute larger number of incarcerated citizens than “authoritarian” China, a country with four times the US population. Many factors contribute to this result. One is the privatization of prisons, which has turned them into profit-making enterprises ever needful of more labor to exploit, which adds to the pressure for convictions. Another factor is the disregard of the protective features of law in order to more easily pursue demonized offender groups, such as the Mafia, child abusers, drug dealers and users, and “terrorists.” Lawrence M. Stratton and I describe the transformation of law from a shield of the people into a weapon in the hands of the state in our book, The Tyranny of Good Intentions. This transformation did not occur because of racism. It occurred because chasing after devils and convicting them became more important than justice. Today the criminal justice system is largely indifferent to a defendant’s guilt or innocence. This is a far worst problem than racism. It is the main reason that there are so many false convictions in the US and so many wrongfully convicted Americans in prison. Indeed, even the guilty are wrongfully convicted as it is easier to frame them than to convict them on the evidence. To be clear: The primary reason for wrongful conviction is that the success indicator for police, prosecutor, and judge is conviction, not justice. Crimes are solved by wrongful convictions. High conviction rates boost the careers of prosecutors, and high profile convictions boost their political careers. The key to rapid and numerous convictions is the plea bargain. And plea bargains suit judges as they keep the court docket clear. Today 97% of felony cases are settled with a plea bargain. This means police evidence and a prosecutor’s case are tested only three times out of 100. When the evidence and case are tested in court, the test confronts a vast array of prosecutorial misconduct, such as suborned perjury and the withholding of exculpatory evidence. In America, everything is loaded against Justice. In a plea bargain police do not have to present evidence, prosecutors do not have to bring a case, and judges do not have to pay attention to the case and be troubled by a growing backlog as trials consume days and weeks. In a plea bargain the defendant, innocent or guilty, is told that he can plead to this or that offence, which carries a lighter sentence than the crime that allegedly has actually occurred and on which the defendant is arrested, or the defendant can go to trial where he will face more serious charges that carry much harsher penalties. As it has become routine for police to falsify evidence, for prosecutors to suborn perjury and withhold exculpatory evidence, for jurors naively to trust police and prosecutors, and for judges to look the other way, attorneys advise defendants to accept a plea deal. In other words, no one expects a fair trial or for real evidence to play a role in the outcome. The short of it is that the pursuit of justice is not a feature of the American criminal justice system. Justice does not matter to the police, to the prosecutor, to the jury, to the judge, and often not to the hardened defense attorney who has witnessed so much injustice that he believes justice is a fairy tale. The only exception to this is the justice introduced from outside the justice system by innocence projects and pro bono attorneys, such as Bryan Stevenson. In 2014 Stevenson published Just Mercy, a fascinating collection of case histories of wrongful convictions that he and his colleagues managed to have overturned. A book such as this benefits from a main case, and the one that Stevenson delivers is that of Walter McMillian. It required six years for Stevenson to overturn what must be the most obvious, blatant frameup of a completely innocent man in US history. There were a large number of witnesses who testified that they were with McMillian at a fish fry during the time that a murder for which McMillian was indicted and convicted took place. The only “evidence” against McMillian was the suborned perjury of a man who retracted his coerced testimony three times, once in the courtroom of Alabama Judge Thomas B. Norton, who simply ignored it. McMillian is black, and the sheriff, prosecutor, judge, and jury that framed him are white. This fact, together with the fact that the ignored witnesses whose testimony cleared McMillian were black and McMillian’s sexual affair with a white woman in a small Alabama town, seem to convince Stevenson that McMillian was convicted because of racism. Using Stevenson’s own account, I am going to show that many other factors in […]
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