Category: justice/jails

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.

click for large size.

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.1  “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.2

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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.”3

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.

Click to enlarge.

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”4 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.5

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

  1.  The Growth of Incarceration in the United States: Exploring Causes and Consequences | The National Academies Press accessed 6/25/2017 []
  2. see: https://www.prisonpolicy.org/reports/pie2017.html []
  3. “5 facts about crime in the U.S.” by John Gramlich  http://www.pewresearch.org/fact-tank/2017/02/21/5-facts-about-crime-in-the-u-s/ accessed 6/25/2017 []
  4. 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. []
  5. Why Innocent People Plead Guilty” by Jed Rakoff in New York Review of Books 11/20/2014 accessed 6/24/2017 []

Justice in America – Not

A central dogma of American politics and culture is the rule of law. The ever present blind scales of justice are trotted out with such regularity that the briefest glimpse serves to remind us that we live in a country with a uniquely fair and just system of law. Of course, if you have ever had the slightest encounter with the reality of this system you will already know that it is only those with money for whom this system produces any justice, and for them more money assures more justice.

Recently I came across the Prison Policy Initiative as a new source of information on how our judicial system actually works. PPI just released a new pie chart and other graphs, “How many people are locked up in the United States?”

The War on Drugs Is a Failure – The Gregory Brothers’ video

video-opdoc-drugwar-NYTimes-04192013Why waste endless words on this topic?

I stumbled on this video, “The Drug War Is a Failure” by the Gregory Brothers via the New York Times.

While poking about on YouTube I found more by these folks, “We Don’t Treat Alcoholics Like This

Then for fun here is their view of a well-worn Christmas tale, “Flying Reindeer

Our Longest War – The War on Drugs – more data on its futility

I have noted here several times earlier about America’s longest war – the War on Drugs. Here is a graphic that displays the complete failure of our policies:1

drug-spending-v-addiction from Atlantic Monthly

 

  1. source: http://m.theatlanticwire.com/national/2012/10/chart-says-war-drugs-isnt-working/57913/ – this graphic came to my attemtion via the Colbert Report http://www.colbertnation.com/the-colbert-report-videos/425397/april-11-2013/america-s-pot-astrophe  []

America’s Longest War – a socio-political-military disaster – indicted by Global Commission on Drug Policy

Report of the Global Commission on Drug Policy

Last week this commission released its report,  “War on Drugs“. This once again brings into focus our longest war, Nixon’s War on Drugs. Here are the first two paragraphs from the executive summary:

The global war on drugs has failed, with devastating consequences for individuals and societies around the world. Fifty years after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after President Nixon launched the US government’s war on drugs, fundamental reforms in national and global drug control policies are urgently needed.

Vast expenditures on criminalization and repressive measures directed at producers, traffickers and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption. Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers. Repressive efforts directed at consumers impede public health measures to reduce HIV/AIDS, overdose fatalities and other harmful consequences of drug use. Government expenditures on futile supply reduction strategies and incarceration displace more cost-effective and evidence-based investments in demand and harm reduction.

Meanwhile the US War on Drugs grinds on and total Federal and state spending on this disaster will lurch over $35 Billion this year.

Extending Eisenhower’s Language

in his last speech as President, Eisenhower pointed to the “military-industrial complex” as a threat to the nation’s security and health. Since then, hisotry has added new layers of meaning and expanded the scope of this phrase. Today, we are in the thrall if not control of the Military-Industrial-Congressional-Executive-Spying-DrugWar-Complex. The War on Drugs has a record of failure and destructive outcomes now over 40 years old. Nevertheless, this behemoth roles along, getting bigger and more global in its reach every year. No Republicans or Democrats are willing to abandon the policies and rhetoric so cynically initiated by Nixon. Even this year of the so-called deficit debate, when Republicans and Democrats are willing to throw every bit of discretionary social or infrastructure spending under the bus, the War on Drugs (and every other element of the Military-Industrial-Congressional-Executive-Spying-DrugWar-Complex) is off limits.

Global Commission Recommendations

The executive summary continues(my highlighting):

Our principles and recommendations can be summarized as follows:

End the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others. Challenge rather than reinforce common misconceptions about drug markets, drug use and drug dependence.

Encourage experimentation by governments with models of legal regulation of drugs to undermine the power of organized crime and safeguard the health and security of their citizens. This recommendation applies especially to cannabis, but we also encourage other experiments in decriminalization and legal regulation that can accomplish these objectives and provide models for others.

Offer health and treatment services to those in need. Ensure that a variety of treatment modalities are available, including not just methadone and buprenorphine treatment but also the heroin-assisted treatment programs that have proven successful in many European countries and Canada. Implement syringe access and other harm reduction measures that have proven effective in reducing transmission of HIV and other blood-borne infections as well as fatal overdoses. Respect the human rights of people who use drugs. Abolish abusive practices carried out in the name of treatment – such as forced detention, forced labor, and physical or psychological abuse – that contravene human rights standards and norms or that remove the right to self-determination.

Apply much the same principles and policies stated above to people involved in the lower ends of illegal drug markets, such as farmers, couriers and petty sellers. Many are themselves victims of violence and intimidation or are drug dependent. Arresting and incarcerating tens of millions of these people in recent decades has filled prisons and destroyed lives and families without reducing the availability of illicit drugs or the power of criminal organizations. There appears to be almost no limit to the number of people willing to engage in such activities to better their lives, provide for their families, or otherwise escape poverty. Drug control resources are better directed elsewhere.

Invest in activities that can both prevent young people from taking drugs in the first place and also prevent those who do use drugs from developing more serious problems. Eschew simplistic ‘just say no’ messages and ‘zero tolerance’ policies in favor of educational efforts grounded in credible information and prevention programs that focus on social skills and peer influences. The most successful prevention efforts may be those targeted at specific at-risk groups.

Focus repressive actions on violent criminal organizations, but do so in ways that undermine their power and reach while prioritizing the reduction of violence and intimidation. Law enforcement efforts should focus not on reducing drug markets per se but rather on reducing their harms to individuals, communities and national security.

Begin the transformation of the global drug prohibition regime. Replace drug policies and strategies driven by ideology and political convenience with fiscally responsible policies and strategies grounded in science, health, security and human rights – and adopt appropriate criteria for their evaluation. Review the scheduling of drugs that has resulted in obvious anomalies like the flawed categorization of cannabis, coca leaf and MDMA. Ensure that the international conventions are interpreted and/or revised to accommodate robust experimentation with harm reduction, decriminalization and legal regulatory policies.

Break the taboo on debate and reform. The time for action is now.

Go to the website and read further. They provide case studies from around the world to illustrate their case for these principles and policies.

Charles M. Blow wrote an op-ed piece in the New York Times (6/11/2011) “Drug Bust“. It included the following graphics:

Einstein (Rita Mae Brown) Had Something To Say About This

Insanity: doing the same thing over and over again and expecting different results.