Saturday, July 11, 2015

How Just is Our Justice System?

Alex Kozinski is a federal judge on the 9th Circuit Court of Appeals, to which he was appointed by Ronald Reagan in 1985. His long judicial career has led him to doubt the basic fairness of our justice system, and in a long article in the Georgetown Law Review he offers the definition of a "scathing indictment". All of the assumptions on which we base our faith in justice, he says, are just guesses, and many of them are wrong.
Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial. Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.
He goes over all the doubts raised by scientists -- the unreliability of eye-witness testimony, the fallibility of memory, the problems with fingerprinting and other forensic methods, and so on. Arson investigators, he notes, are "little better than witch doctors," and "Cameron Todd Willingham may have lost his life over it." DNA may be a great technology, but tests have to be carried out in actual police crime labs, and "Real-life crime labs are a total mess."

To me real heart of the indictment is Kozinski's attack on the fairness and objectivity of prosecutors and the police. Stories about police fabricating evidence and extorting confessions are everywhere, he notes, and we simply have no idea how common such malfeasance is:
Just the other day, “the Just Department and FBI formally acknowledged that nearly every examiner in a elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” Do they offer a class at Quantico called “Fudging Your Results to Get a Conviction” of “Lying On the Stand 101”? How can you trust the professionalism and objectivity of the police anywhere after an admission like that?
As for prosecutors, the law insists that they are supposed to work for justice, not pursue convictions, but cases come up every day of prosecutors who cut corners or outright cheat in their zeal to put defendants behind bars:
…there are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices— engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.
There is, says Kozinski, an "epidemic" of prosecutors violating the Brady law that says they must turn over exculpatory evidence to the defense. Because of a Supreme Court decision known as Imbler, prosecutors are effectively immunized against punishment for wrongdoing, and Kozinski calls on either the court or Congress to change the law.

Kozinski argues that given  how difficult it is for convicts to question their convictions from prison, the record 125 exonerations in the US last year must be only the tip of the iceberg:
I think it’s fair to assume – thought there is no way of knowing – that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.
The bottom line is that our prisons are full of innocent men. And not only that, says Kozinski, their sentences are probably much too long; we like to think that long sentences deter crime, but there is no evidence that this is so, and other countries that give out much shorter sentences have less crime than we do.

I think every word is true, and it bothers me a great deal that Americans don't care more about this.

1 comment:

G. Verloren said...

"American Justice" is essentially a joke, and has been for a long time.

But then, true justice is a hard thing to achieve - and as a people, we're far from properly equipped to seek it out. We have so many flaws that get in the way of our being upstanding people, and so many other concerns that occupy our attention and even outweigh our desire for actual justice.

The reason why more Americans don't care about the issue of justice is because many of them simply have other worries in their own lives they wish to deal with first. It's hard to care about the criminal justice system when you're already worrying about your job, your family, your sense of self, your purpose in the universe, or any of countless other personal problems. When you spend all your time dealing with your own neuroses, insecurities, and unhappiness, larger issues happening to "other people" take a back seat.

And yet, all our major institutions seem designed to instill fear, uncertainty, and discontent among people. As a society, we seem to value a population of ignorant, miserable, distracted, isolated citizens rather than educated, empowered, effective members of a larger community.

A huge portion of our economic system is founded on a philosophy of manufacturing artificial perceived "needs" for products and commodities that really aren't necessary. Essentially all advertising is purely about making people feel inadequate in order to drive sales of various "quick fixes".

Our chief religions are clannish and judgemental, carrying on ancient traditions of egotism and self-aggradizement through exclusionism and oppression of those who do not blindly conform. They actively oppose logic and evidence, and seek to self perpetuate through fostering ignorance and indoctrination.

Our politics and governance operate like sports events, with differing teams all out to game the system as best they can to ensure victory at any cost, with little regard for fairness or "good sportsmanship". Instead of placing power in the hands of those who objectively would best use it, we dole it out as a petty reward to those who can best manipulate the masses. And the masses are most pliable when they are most ignorant and unempowered, so those in power are incentivized to promote such qualities.

The only thing we're really good at on an institutional level is killing people and making war. And even that we only achieve that through maintaining a strict authoritarian heirachy of power within our own ranks, and a ruthless philosophy of belligerent violence and political bullying towards the rest of the world.

And so our little world spins on, with most Americans being uneducated, unhappy, and uncaring of greater issues beyond themselves. Because the people who profit from holding power value such qualities in the general population. If people were intelligent, happy, and actively evolved in bettering the world around them, the whole scheme would fall apart.