Broken Justice


In March 2009, U.S. Senator Jim Webb (D-VA) proposed the Criminal Justice Commission Act of 2009 “which would create a blue ribbon commission to reevaluate [America's] criminal justice system and drug policies, and make recommendations for reform.The bill has passed the House once but recently failed to achieve a filibuster-proof majority in the Senate.

At the time of the original filing, Sen. Webb noted “… the United States houses 25 percent of the world’s prisoners despite having only five percent of the world's population,” and described the criminal justice system as “…being in a profound, deeply corrosive crisis that we have largely been ignoring at our peril.”

And we choose to ignore the crisis in criminal justice chiefly because of the “embarrassment factor.”

To confront the ugly beast would mean that as a nation we'd first have to admit we have a problem, and then acknowledge the root of that problem: lingering systemic racism in American jurisprudence.

We've told ourselves lies so well and for so long one has to wonder if we'd know the truth when staring it full face; indeed, if we even know how to fess up to our deficiencies … or, more importantly, if we really care to do so. But our blissful ignorance comes at a steep price … at least for some Americans.

Ohio State Associate Law Professor Michelle Alexander's 2010 book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, argues that mass incarceration in America functions as a system of racial control in a similar way to how Jim Crow once operated.

And her book peels back the mask of fair play and reveals exactly how the courts and legislative bodies have allowed these perversions of justice to occur.

Her book is now joined by recently-deceased Harvard Law Professor William J. Stuntz's 2011 book The Collapse of American Criminal Justice. The work is a brilliant (albeit sometimes brutal and disgusting) retracing of the history of our legal system.

In the book the author examines what the Founding Fathers did right (in terms of The Bill of Rights and other Constitutional guarantees), plus how and why — over the intervening centuries — things have gone so very wrong.

Stuntz explodes myth after legal myth as he, chapter by chapter, details how the courts have twisted our nation's laws beyond recognition of their original intent, purpose and utility and, in the process, greatly reduced (and in some jurisdictions virtually eliminated) any chance of fair treatment for the average citizen. Especially citizens of color.

At the time of his death in March of this year, Stuntz was ranked as one of the foremost legal minds of his generation. His book shows how the liberal Warren Supreme Court's emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system this is both overly harsh and supremely ineffective.

Supreme Court Justice Elena Kagan (whom Stuntz taught under when she was dean of Harvard Law) said in an interview immediately after his death, “despite his self-professed conservative inclinations … what was fascinating about him was that everybody read him and listened to him and took seriously what he said.”

And from the grave this conservative is saying our criminal justice system is deeply, systemically flawed.

To wit: In the 1990s the Commonwealth of Virginia’s courts did not allow prisoners to bring new exculpatory evidence more than three weeks after sentencing. When a prisoner condemned to death petitioned a Virginia Circuit Court to review new evidence on his behalf, then-Attorney General Mary Sue Terry filed a brief that argued: “Evidence of innocence is irrelevant.”

Absolutely, incontrovertibly mind-boggling.

Could an American elected official really have uttered such words? Yes, she did. However, it's only one of a litany of egregious examples to be found of how far the pendulum has swung away from true justice in America. Scared yet? You should be.

In addition, ProPublica, the independent, non-profit organization that produces investigative journalism in the public interest, recently released the results of a year-long study that proved when citizens apply for a presidential pardon, whites are four times more likely than blacks to receive one.

If the criminal justice system is this deeply flawed at the absolute highest level of government (can there be any higher?), what are the chances of it being fair at any level below?

Naturally the protectors of the status quo came down with severe apoplexy and rushed out the spin doctors whose mission was to attempt to cast doubt on the findings until the heat was off and the crisis had passed.

They know that while there was going to initially be a degree of outrage and opprobrium, the issue would soon fade away to black — to nothingness. And it has. It's the “American Way” when it comes to matters racial intersecting matters legal; simply ignore.

The problem with fixing the system lies, in large part, in a lack of political will, and the fact most Americans think a broken criminal justice system doesn't affect them or their lives… since they have no intention of breaking the law. But that's where they're wrong. A criminal justice system fixated on busting pot smokers, fence climbers and other assorted petty criminals fails to focus on much larger crimes that impact all of our lives in profound ways.

On a recent 60 Minutes segment Steve Kroft asked a representative of the Department of Justice (DOJ) some very tough questions in regards to the agencies failure to bring Wall Street crooks and brigand mortgage brokers to the Bar of Justice.

Although it wasn't given as an excuse, one of the main reasons is that it's easier for law enforcement to pick the low hanging fruit of drug cases; petty dealers most often can't afford high-priced lawyers who'll put up a real fight for their clients, and, let's face it, few drug dealers contribute to campaigns for Congress and the presidency. The ultra-rich, it seems, gets a pass from prosecution.

But the looting of our country by latter-day Robber Barons, and the lax regulations that allows it to continue, is driving us, and many of the other industrialized nations of Europe, to the brink of economic collapse. And all the while the Supreme Court churns out rulings like the one that give corporations “personhood” so they can continue to rig elections.

One way for conservatives to control election outcomes is to disenfranchise voters that might vote for a progressive agenda. Individuals in prison can't vote (except in two states, Maine and Vermont) and increasingly right wing legislators in some states are attempting to bar anyone with a felony conviction from going near a ballot box.

But all of this comes at a price. In the last decade alone the State of California built seven new prisons, but not one new university. That's a sure-fire way to run the country into a ditch. However, with prison privatization being viewed by greedy corporations as an opportunity to create “exciting” new revenue streams, they need America's criminal justice system to remain broken.

And barring Congressional intervention, it most certainly will.

Mansfield Frazier, a regular blogger for The Crime Report, is a native Clevelander whose work can be seen weekly on, The Cleveland Leader and The Cleveland Free Press. He also contributes to The Daily Beast. Frazier is the co-publisher of Reentry Advocate, a magazine that goes into prisons nationwide. He welcomes reader comments.

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