An effective justice system depends on an unwritten bargain. Citizens must cooperate with all branches of the criminal justice system. But at the same time, law enforcement agencies must be fair and sensitive to community needs.
When that bargain isn't honored, public confidence suffers—along with public safety.
Lately, there has been troubling evidence of an imbalance between citizen responsibility and official accountability.
The media has been filled with accounts of serious misconduct by those who administer and operate our justice system. The misconduct includes, but isn't limited to:
- excessive force used by police SWAT teams;
- major law violations by prosecutors;
- the use of questionable confidential informants;
- pressures on vulnerable defendants to act as snitches;
- falsification of crime lab reports,
- abuses of inmates of adult and juvenile correctional facilities;
- ethical violations by members of the judiciary.
The most dramatic stories often involved persons who are declared innocent after years of incarceration due to these problems. Some of these convicts were awaiting the death penalty. But these cases are just the tip of the iceberg of what can only be called criminal justice lawlessness.
The individual cases are troubling enough. But when they are compiled as a list, they reveal a pattern that should concern all of us.Here's a partial list of cases that have received widespread attention in the last few years:
- In several cities in California, New Mexico, Georgia, Florida and Texas, citizens report excessive and lethal force by the police;
- In New York, Washington, Pennsylvania, and California, prosecutors illegally withheld exculpatory evidence, leading to wrongful convictions and challenges to sentences;
- Scandals in crime labs have surfaced in in California, Pennsylvania, New Jersey, Florida and Louisiana;
- The public and private defense bar has provided woefully inadequate legal representation in several locales, especially in Texas, Mississippi Louisiana and Alabama;
- Judges and probation officials have accepted bribes to send youth and adults to for-profit prisons;
- Substandard and deplorable conditions in prison, jails and juvenile facilities remain the norm;
- Scandals among corrections officers have led to federal criminal indictments in California, Illinois, Indiana, Maryland and the Federal Bureau of Prisons;
- Gender and cultural competence in the criminal justice system are rarely valued or practiced;
- Court and corrections officials have either mistakenly released inmates too soon or held offenders beyond their lawful sentences in Colorado, Illinois and California;
- Prosecutors have knowingly overcharged defendants to coerce guilty pleas;
- Criminal justice officials have manipulated and falsified crime statistics in several jurisdictions;
- The evidence supporting claims of racial profiling by criminal justice agencies is mounting.
Although the courts have attempted to deal with these major lapses, the judicial branch cannot routinely take over the operation of executive branch agencies. And state legislatures have generally avoided taking on gross examples of criminal justice lawlessness.
True, they have held hearings and conducted some public hand-wringing for the media. But there are few examples of comprehensive legislative solutions to fix these problems.
The forces preventing such comprehensive solutions are formidable.
Federal and elected officials are reluctant to take on other powerful local officials. Unions representing criminal justice workers have been very effective in pressing for laws and regulation that shroud these law violations in secrecy and make punishment of offenders extremely difficult.
In general, the courts and the legislature do not want to spend more money to solve criminal justice problems. Further, it is assumed that the executive agencies should be given broad latitude to control and oversee their daily operations.
Within the executive branch, there are often virtually no independent oversight groups. Protections for “whistle blowers” are weak at best and administrative and personnel processes to solve issues are cumbersome and time consuming.
The public understands that criminal justice workers perform vital community functions and are often involved in volatile and dangerous work. The media generally relies on the interpretation of criminal justice officials to explain misconduct that becomes public.
More tragically, victims of illegality in the criminal justice system lack the financial or political resources to press their claims, and therefore cannot get their side of the story told. The majority of the voting and taxpaying public is thus more inclined to believe the stories and explanations of law enforcement officials.
It doesn't help matters that most of the violations of due process often occur outside of public view.
When victim claims are sustained in legal processes, the public rarely hears about how much taxpayers dollars go to resolve these disputes. Too many elected officials think they advance their own futures by railing against “activist judges.” There are scant national data on the magnitude and severity of lawlessness in the criminal justice system. There has not been a major national commission looking at the criminal justice system since the 1970s.
That needs to change.
We need more accurate information, and we should be paying more attention to how we recruit, and train, criminal justice workers—particularly in their legal and ethical obligations. Professional associations promote best practices such as community policing, bail reform and effective pre-trial diversion programs, and rehabilitative programs in probation, prisons and jails.
Access to competent legal assistance is central to curbing rampant law violations.
There is an urgent need for the federal government to again become a beacon of enlightened and progressive professional conduct. Funding to enforce existing federal and state civil rights protections must be expanded. Of course, federal criminal justice agencies must first clean up their own operations.
It is time to rebuild support for positive and evidence-based crime fighting strategies among elected officials and criminal justice professionals.
Our zero-tolerance “tough on crime” era—which filled our prisons with nonviolent offenders—is thankfully coming to a close. But when it comes to being smart on crime, we still have a long way to go. We should now apply the concept of zero tolerance to misconduct by criminal justice agencies.
It's essential to the health, wellbeing and safety of our communities.
Barry Krisberg is a Distinguished Senior Fellow at the University of California Berkeley Law School, and an occasional contributor to The Crime Report. He welcomes comments from readers.