Monday, August 2, 2010

The Systemic Unfairness of the Criminal Justice System

A rich man railroaded by an unconstitutional law reflects on his 28 months in federal prison:

It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.

Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.

The whole thing, very much worth the read, here.

UPDATE: I should mention that I don't endorse everything Mr. Black says in the piece and I think he is guilty of over-generalization, especially painting public defenders as "in league" with the prosecutors. I think the PD system needs serious adjustment, as does the plea bargaining process. I stand by my encouragement to read it, but not without a critical eye. -JPB


Elle A said...

I can only comment on the four public defenders I know - three my classmates and one a former professor of mine. All are deeply committed to defending their clients and insuring their rights are not trampled. It is hard and often thankless work. It is a disservice to these dedicated attorneys to perpetuate the 'incompetent/in league with the DA office' stereotype.

And yes, they are paid by the case - as are almost all criminal law/trial attorneys. But do you know how much they make? They make jack shit.

JPB said...


I should have expressed caveats about the piece. I think he gets a considerable amount wrong--I don't think you can get a full grasp of what is wrong with the CJUS system in an op-ed, and certainly not from only his position.

I think the PD system should be revamped and reevaluated, but that's a whole other blogpost. But you're right--the broad brush for PDs was unfair.

thanks for keeping me honest. (and thanks for reading.)

Elle A said...

I should also add - criminal law attorneys can only be paid a flat fee per case or an hourly rate; it is against the Rules of Professional Responsibility to be paid any other way.

i mean, assuming you think they should be paid and all.