The Rule of Law, Justice, American Delusions

Fairness, an equal shake, blind justice, jury of peers, rule of law…Amendments IV, V, VI, VII, VIII, and XIV…. these are all ubiquitous and universally applauded features of American life. Like blind lady justice they are ubiquitous in every area of our culture. This system of justice makes us superior to most other countries in the world.

This is the delusion of the American justice system.

Our current exhibit, Prison, at Davis Orton Gallery shows photographic works on prisons and the impact of prisons in American life. During the show (June 24 to July 23, 2017) we will also be holding four public discussions about the justice system and prisons in conjunction with several local organizations. More here.

So, I am thinking about the justice system and incarceration in America.

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It is widely known that the US has more people in jail than any other country on earth both in absolute numbers and as a percentage of the population. (( The Growth of Incarceration in the United States: Exploring Causes and Consequences | The National Academies Press accessed 6/25/2017))  “The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. ((see:

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Growth of Incarceration

The present situation is a relatively recent phenomenon, dating from the early 1970s and President Nixon’s race baiting War on Drugs and a more generalized campaign rhetoric adopted by many politicians of the need to get tough on criminals.

These policies have persisted largely without change to this day despite the fact that the crime rate in the US has dropped significantly. “Using the FBI numbers, the [violent] rate fell 50% between 1993 and 2015, the most recent full year available. Using the BJS data, the rate fell by 77% during that span.” In regards to property crimes, “FBI data show that the rate fell 48% between 1993 and 2015, while BJS reports a decline of 69% during that span.” ((“5 facts about crime in the U.S.” by John Gramlich accessed 6/25/2017))

Much comment has been made about the obviously racist features of this incarceration, the relationship to drug use and the racist application of drug laws.  Racist policing policies and practices have come to the attention of the white population in recent years due to omnipresent smart phones and social media. The prison industrial complex has joined the national vocabulary and only become more commonly used with the rise of the private prison industry.

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Lets focus on just a single element of how the blind scales of justice have been turned into a plea bargaining machine. Ever since 1963 when the Supreme Court in Gideon v Wainwright determined that a poor person was in fact covered by the 6th Amendment and its call for “Assistance of Counsel” ((In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.)) we are used to the reading of the Miranda rights on our evening TV cops shows that includes the assurance that legal representation is a right.

The reality is that legal representation for the indigent is worse than a charade. According to the ACLU 80% of those arrested for a crime can not afford a lawyer. But, no where in the country is a robust system of legal representation for these people in place. And as widely known, legal aid attorneys all too frequently meet their clients for a few moments before a court appearance and have no real resources to represent the client in a meaningful way.  A result of this is that local, state and Federal prosecutors have enormous, compelling power to manipulate the alleged criminal into pleading guilty to a crime. Prosecutors pile up charges knowing that when confronted with the most severe charges the arrested person will cave in to a lesser charge. They know that their legal aid lawyer is not capable or even motivated to defend them. This scenario is probably all to well known to you from the media.

But, we need to see the scale of this abuse of judicial power to understand the extent to which the blind scales of justice are a complete, cynical fraud.

In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.

In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.

While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less. ((“Why Innocent People Plead Guilty” by Jed Rakoff in New York Review of Books 11/20/2014 accessed 6/24/2017))

In future articles I will discuss the bail system, post-incarceration oppression, and sentencing practices.