May 04, 2017 - Issue 697: Where's the Justice in Our Criminal Justice
System? - The Invisible Woman - By Sharon Kyle, JD, BC Editorial Board
May 04, 2017 - Issue 697
Where's the Justice in Our
Criminal Justice System?
"One contributing factor that doesn’t get
discussed enough is the public’s naive belief
in the fairness of our justice system. You
don’t have to be a rocket scientist to see that
the United States has a legal system that
dwarfs that of every other nation—but calling
it a justice system seems to be a stretch."
been listening to a podcast I wish I could have heard while in high
school—I probably would have gone to law school earlier than I
did. Listed by Rolling Stone magazine as one of the 10 podcasts
everyone should follow, “Actual
started by Brook Gittings, a social worker who—after watching
the Netflix series “The Making of a Murderer”—realized
how little she knew about our judicial system. Her desire to
learn more led her into the world of wrongful convictions, which has
now become the driving force behind her podcasts. Each episode tells
the story of a person who has served time in the system for a crime
they did not commit.Actual
the uninitiated a view of our criminal justice system that won’t
be found on CSI or Law & Order.
Gittings, most Americans have little to no direct contact with the
judicial system. With the exception of minor traffic violations,
divorce proceedings, or an occasional dispute in small claims court,
what they think they know about the judicial system has come to
them through the movies or television dramas. Nevertheless, if
asked, the average Joe would probably say that our system is just and
are reared to believe that ours is a nation of laws. That the U.S.
criminal justice system is blind to race, religion or station in
life. Unless you are an attorney, a police officer, law student, or
are in some other way associated with the law, you probably don’t
know that one out of nine people on death row has been exonerated
since the introduction of DNA evidence—or that the overwhelming
majority of people serving time for a criminal offense in the United
States never had a trial.
much as 97% of federal criminal cases end with a plea bargain, which
means the defendant and the prosecution struck a deal—a guilty
plea in exchange for a lighter sentence. This business of having your
day in court as depicted on TV and in the movies is largely fiction.
Our criminal justice system today is almost exclusively a system of
plea bargains—no trials, no juries, and no discovery with
defense counsel and judges having little to no say.
was designed to be one of the greatest assets of our criminal justice
system—the discovery process with a trial by jury—is
largely a relic of the past. And the system it was supposed to
support has increasingly become a predatory one or, as famed defense
attorney Bryan Stevenson says, “We have a system of justice
that treats you better if you’re rich and guilty than if you
are poor and innocent.”
fact, the late Supreme Court Justice Antonin Scalia believed that
actual innocence was not a strong enough reason to overturn a
conviction, even in the face of a death sentence. He once said
that the execution of a convicted defendant who has had a full and
fair trial but is later able to convince a court that he is ‘actually
innocent’ is not a legal basis to overturn the conviction or,
in other words, not enough reason to stop an execution. So, it
appears we’ve come to the place where actual innocence can be
treated as if it were irrelevant.
jaw-dropping truth stands in sharp contrast to the protections most
Americans believe are enshrined in the Bill of Rights of the U.S.
Constitution. Surely the Founding Fathers did not intend to create a
system that results in tens of thousands of innocent people
incarcerated annually and—in a few cases—being put to
system is so bloated and so prone to mistake and
frankly, prosecutorial misconduct, that today there are enough
people convicted of a crime who were later determined to be
wrongfully convicted that they have an annual conference. In 2016,
one such gathering, the Innocence Network Conference held in San
Antonio, attracted 500 attendees.
a piece published by Mother Jones magazine titled, “How
Many Innocent People Are in Prison?”
writers Beth Schwartzapfel and Hannah Levintova admit that answering
that question definitively is almost impossible. But they say,
from the 281 known DNA exonerations in the US since the late 1980s, a
conservative estimate is that 1 percent of the US prison population,
approximately 20,000 people, are falsely convicted.”
studies by respected institutions support this estimation—some
believe the number is higher. So the question is what can be done?
rid of the money bail system. The
money bail system is used in just two countries—the United
States and the Philippines. Every year thousands of people in the
U.S. are jailed while they await their trial simply because they
can’t afford to post bail. These people are technically
innocent. Recent research found that, compared to people who are
released sometime before their trail starts, people held in jail the
whole time before their trial were four times more likely to be
sentenced to jail and three times more likely to be sentenced to
prison. There are alternatives to this system that have a
proven track record of success.
Alternatives-to-Arrest and Alternative-Incarceration Programs. Fifty
years ago the U.S. incarceration rate in the United States was on
par with similarly situated nations. Over the past four decades,
changes in law and policy have resulted in the nation’s prison
population ballooning by 500%. This growth has outpaced the crime
rate and research suggests over the long term, that it has actually
increased the crime rate.
Laws That Reduce Overly Harsh Sentences. People
are serving life sentences for non-violent drug offenses. The United
States is unique among countries in the “civilized”
world to handle these types of offenses this way. Clearly this
method is not producing the desired outcome as is evidenced by our
high recidivism rate. We should work on eliminating mandatory
minimum sentences and cut back on excessively lengthy sentences by
using an alternative to incarceration for these types of offenses.
Prosecutors and Police Responsible for Deliberate Misconduct. Police
and prosecutors who deliberately engage in misconduct are almost
never held accountable for their actions—actions like hiding
or destroying evidence that could clear the accused of charges, or
fabricating evidence to make a defendant appear guilty, or relying
on testimony that is known to be false, or obtaining and then using
coerced confessions. In fact, 40 years ago the U.S. Supreme
Court granted prosecutors absolute immunity for acts committed in
their prosecutorial role.
All States to Provide Compensation to the Exonerated. Only
30 states, plus Washington D.C., have laws that provide compensation
to the wrongly convicted. Some of these laws provide only token
support to the exonerated, while 20 states provide no compensation
at all. When the criminal justice system makes a grievous mistake by
sending an innocent person to prison, the state has a moral and
ethical responsibility to make amends by providing adequate
financial support, counseling, educational and job training, and
housing. If your state doesn’t have a law, ask your legislator
to pass one.
or abolish Plea Bargaining. Timothy
Lynch of the Cato Institute has presented a strong
favor of abolishing the plea bargain system. He believes it is
unconstitutional because the plea bargaining system encourages the
government to pressure an individual to waive a Constitutional right
and then punishes defendants who chose to exercise their Sixth
Amendment right to a trial by jury.
the Death Penalty. Judge
Boyce F. Martin, Jr. of the U.S. Court of Appeals for the 6th
Circuit called the death penalty “arbitrary,
biased, and so fundamentally flawed at its very core that it is
beyond repair.” The
number of innocent people exonerated who were on death row continues
to grow and, according to the American Bar Association, in 96% of
states where there have been reviews of race and the death penalty
there was a pattern of either race-of-victim or race-of-defendant
discrimination, or both. Few countries continue this barbaric
practice among them are the United States, China, North Korea and
the past 40 years we’ve witnessed a prison population explosion
of unparalleled proportion in the U.S.. Social scientists and other
scholars can give you a laundry list of reasons. Most striking is
that missing on those lists is a need to increase public safety. Most
experts agree that the U.S. locks up more of its citizens than any
other nation at great expense with little impact on public safety.
contributing factor that doesn’t get discussed enough is the
public’s naive belief in the fairness of our justice system.
You don’t have to be a rocket scientist to see that the United
States has a legal system that dwarfs that of every other nation—but
calling it a justice system seems to be a stretch.
at any point during the judicial process, actual innocence is deemed
to be irrelevant, how the hell can we call what we have a justice
BlackCommentator.comEditorial Board member and Columnist,Sharon Kyle, JD, is the Co-Founder and Publisher of theLA Progressivean
online social justice magazine. With her husband Dick, she publishes
several other print and online newsletters on political and social
justice issues. In addition to her work with the LA Progressive, Ms.
Kyle holds aJurisDoctorate,
is an adjunct professor at Peoples College of Law in Los Angeles, and
sits on the board of the ACLU Pasadena/Foothills Chapter and the
Progressive Caucus of the California Democratic Party.Clickhereto contact the LA Progressive and Ms. Kyle.