Rant: Our System of (In) Justice, Part 1

I read Jeff Gamso over at Gamso - For The Defense on a regular basis. The honorable Mr. Gamso doesn't lead the parade against capital punishment, but his float is large, well-constructed and occupies a prominent position. Jeff's latest essays are Stevens Is Wrong Even When He's Right and Capital Updates, We Got Updates, in which Jeff points to the freight train sized hole in United States Supreme Court justice John Paul Stevens professional opinions about the death penalty. Jeff supports his arguments with a dry, lengthy article by David Von Drehle from Time,  Stevens' Case Against the Death Penalty: Shirking the Blame. If you care to read the comments on Jeff's site you'll note that he's opposed by someone calling himself Atticus (presumably after the famous fictional lawyer in To Kill a Mockingbird). I think I should remind Jeff that unless he knows Atticus personally, he has no idea if Atticus is a precocious twelve year old taking a break from watching Internet porn or a highly respected law professor from Harvard. I suspect that Atticus is a local attorney, I suspect he knows Jeff Gamso and I also suspect that Jeff would recognize Atticus were Jeff to see him in court. Those are my suspicions and I'm sticking to them.

Laboriously getting around to the point of this contribution to the overall intellectual value of the Internet, I will restate that I support the death penalty. I oppose the prevalent methods of execution, and I also oppose the labyrinthine path constructed by our judicial system that is supposed to lead from the first application of handcuffs to the recording of the condemned prisoner's last words and subsequent extermination while protecting everyone's constitutional rights and providing fair and impartial judges and jurors. Truly a nice ideal and a lofty goal, but so far achievement of this goal has eluded all the people involved in the process.

If you end up being judged by twelve rather than being carried by six, you're looking at a long walk. If you're poor, the odds in favor of you walking out of Judge Bean's courtroom just in time to be the guest of honor at your own neck tie party have gone down a few points. If you're a minority, the odds drop again. If you are physically unattractive (or uglier than the back end of a bus), your attorney should advise you to get your affairs in order. If you can't afford an attorney, and most of us can't, some poor (and I mean damned dirt poor) attorney will draw the short straw and take your case. How do you feel about being the very first murder trial of a young man who has recently passed the State bar exam? Possibly worse than I feel this morning, and seeing as how it's only Friday that ain't good. The bottom line here is that if you want to walk out of Judge Bean's courtroom at the end of the trial thumbing your nose at the prosecutor, you'll be an attractive white female dressed like a Sunday school teacher. You'll have a jury comprised of twelve emotional and not terribly bright middle aged men and women. The cost of your legal defense, which will include private investigators and other experts who will testify at your trial, will be paid for by an anonymous benefactor who is throwing six figures left of the decimal in US Greenbacks at your attorney, who is known in some circles as Racehorse Haynes. Later on it will turn out that your benefactor is actually a minister of the local Baptist church and a past winner of the Nobel Peace Prize, but the jury will be told to disregard that statement. Since most of us don't get this kind of treatment, it's likely we're headed for the neck tie party, and that is the second thing that's wrong with our legal system. There is no level playing field.

The first thing that's wrong is the same as the second thing; there is no level playing field. For instance, if you're a twenty something female whose abusive husband comes in drunk at three in the morning and starts using you for a punching bag, and you decide you've had enough and so ventilate the no good SOB, the problems you have in your future might make the past look pretty good. Consider the scenario carefully: Someone will have heard five shots from the family pistol (S&W Md. 686, 4 inch barrel using red hot .357 Magnum Glaser Safety Slugs) and called the police. When the police arrive they will understandably be a little edgy, one or more calls specifying a loud, drunken argument with the sounds of furniture being broken and terminating in five thunderous crashes best described by one helpful caller as  “...it sounds like somebody's got a fuckin' howitzer in there!” The police will eventually find that the only other inhabitant of the house is a hysterical, battered female sporting a nasty mouse under her left eye, a bloody nose, multiple bruises on her arms and a set of broken ribs. The erstwhile SOB is lying on the kitchen floor and finished leaking some time ago. Here's where the playing field comes into play. If the alleged perpetrator is a white, attractive, upper middle class twenty something dressed in her translucent electric blue negligee and robe, she's going to be treated a lot differently than if she is a poor twenty something minority with coarse features dressed in ragged sweats and sporting a few tattoos and piercings, in addition to having an identical set of injuries. In the first case a sympathetic police officer might ask if the deceased is her husband, and if so, did he try to kill her. All the alleged perpetrator has to do is keep tearfully nodding her head. She'll be taken to the hospital where she can call her doctor and her attorney. From that point on, the show is winding down and it is very likely this woman will never be charged with anything, much less spend any time in jail. Even if she does go to jail, she has the financial resources to make bail and so will be out and back in her comfortable home in short order. In the second case, the alleged perpetrator will be arrested. The first question is not 'What happened?'; it is 'Did you shoot him?'. When the alleged perpetrator tearfully nods and a verbal affirmative is obtained, the criminal is taken to the station and booked. Her injuries will not warrant a visit to the hospital. She doesn't have a doctor or lawyer to call, but our system provides each and every criminal with a lawyer at taxpayer expense. The real problem with this disparity is not obvious. The real problem is that average, everyday law abiding people believe that these two scenarios are opposite extremes of the criminal justice system, and they are not. The second is far and away more common than the first. The reason is obvious; the poor outnumber the wealthy. Violent crime is higher in poor neighborhoods, and police know this. Police also know that crime victims are not always without their own criminal behavior, and self-defense cases are rarely as cut and dried as they appear to be. Again, in poor neighborhoods this is believed to be true, but in upper middle class neighborhoods? Not so much.

The third problem with our system is concerns the prosecutor. The prosecutor is going to examine these cases closely, not to see if these are legitimate cases of self-defense, but to see if the prosecutor can get a conviction, preferably involving a nice plea bargain. The prosecutor is not seeking justice. The prosecutor gets paid to put criminals in jail. It's numbers the prosecutor wants; not justice. In one case the prosecutor has an attractive, wealthy white female with a very spotty criminal record that does not include drug charges, weapons violations or felonies. There is motivation in the form of a very large life insurance policy, but this looks like a loser and the prosecutor knows it. The second case is a minority with a string of misdemeanors and maybe a felony. Both have a gun specification, which is nice. The prosecutor sees prison in this one's future.

Both these cases could be summed up in a single, easy to understand sentence: He was beating her so she dinged him. In my mind, this is self-defense, pure and simple. The prosecutor may not be so pure and simple minded. The prosecutor is likely to believe that if the prosecutor can put another person in jail, it isn't self-defense. It's something else, namely another conviction for the prosecutor who doesn't want to be thought of as being soft on crime. Conversely, being long on persecution is a good thing. If you're a prosecutor, that is.

Back in the bad old days an overly enthusiastic prosecutor could be brought up short by the antics of a grand jury. In theory, the grand jury evaluates the evidence presented by the prosecutor and indicts a presumed criminal based on that evidence, which is supposed to include any conflicting evidence. The grand jury also listens to witnesses answer questions posed by the prosecutor. About half the States have axed the grand jury procedure, likely due to cost and the possibility of meddling by grand jurors with the justice system. Remember that the idea here is to allow the jury or the judge to decide the actual guilt or innocence of the alleged perpetrator. These days the grand jury, if one exists, does nothing more than put a rubber stamp of approval to the prosecutor's case. This is another problem with our justice system, but never mind. We're supposed to trust that the police would not have arrested the accused unless he or she was guilty, and the prosecutor wouldn't file charges unless the prosecutor had a strong case, meaning that the accused is actually guilty and the rest of us are just wasting our time. The system is not supposed to work this way, but the even the United States Supreme Court has ruled on this and agrees that a grand jury really isn't necessary. I expect that Ohio will be dispensing with the grand jury provision sometime soon.

If the grand jury is a rubber stamp of approval, the trial jury isn't much better. Jurors are supposed to be a group of the defendant's peers. Next time a poor black woman is on trial for anything, take a hard look at the jury and count the number of poor black women out of the twelve jurors. I'll bet you can't find three, let alone twelve. The jurors who are about to decide someone's guilt based on the arguments of a seasoned orator are supposed to be selected randomly from a group of the defendant's peers, and they are not. Many of them will have absolutely nothing in common with the defendant, which would be a little more acceptable if the jurors were temperate, decisive, impartial, intelligent and well-educated. Again, most jurors are not these things, but they're supposed to be. Certainly none of the jurors has a degree in law or has passed the bar. Is this a problem with our beloved justice system? Damn right it is. I'm a fat, middle aged white man with conservative views on personal responsibility, gun ownership and castle doctrine. If I'm being railroaded by the Lucas County prosecutor because I defended myself from a violent criminal who is now fertilizer, I do not want my innocence debated by twelve black female jurors, all of whom have one or more angelic little boys in the system. I want twelve fat middle aged white men, all of whom have a CCW permit and a membership with Gun Owners of America.

Any questions about the success or failure of the jury trial system can be answered by The Innocence Project, which has over 260 exonerations to date (2010). Do you have any idea how bad things have to get before an organization like this one will form? Try filing an appeal on your own and see.

The appeal process is deliberately obstructive and does nothing to redress any procedural flaws in the system. Rather, it is designed to redress the rarest of the rare, the sui generis miscarriage of justice. Detractors of  The Innocence Project scream derisively that 'The prisons are full of innocent people – just ask them!' Not full, no. Half full, maybe.

My rationale here is based on sheer numbers. In 2008 there were 2.3 million people in jail. If we assembled all those prisoners into a penal colony, it would be more populous than Houston, Texas – the fourth largest city in the United States. I just do not believe we have that many people who deserve to be in prison.

The supposed purpose of incarceration in prison is to:

• Serve as a deterrent to the general populace
• Serve as a personal deterrent to individuals already in prison who might otherwise commit future crimes
• Punish the guilty (retribution or vengeance for the crime victim)
• Rehabilitate the criminal
• Protect the rest of the population (all of whom are without doubt angelic law abiding citizens) from the criminals

So far, incarceration is not what I'd call an overwhelming success. The threat of going to prison probably deters the an otherwise law abiding citizen from doing something foolish, such as growing a cash crop in the basement and using the proceeds to pay for Junior's college, but that is about as far as I think it goes. I offer the number of people in prison as evidence that the threat of going to prison isn't an effective deterrent. As for a personal deterrent, check the rate of recidivism (about 60%) then try selling me a bridge I don't own. The rehabilitation angle isn't working too well either. That leaves punishment which works real well, and if you don't believe me go and get locked up for a day or two. U.S. prisons are real hell holes, which makes me wonder about the recidivism rate again. Why return to a dangerous, repulsive environment? The protection aspect is effective  – the criminal can't commit crimes against the rest of the population if he's in prison.

End of Part 1