More about the collapse of the American Criminal Justice System
Summary: A follow-up to yesterday’s post, here we see a wide range of articles about the deep rot of America’s criminal justice system. It’s a shameful travesty of justice, especially for a nation that prided itself as the shining city on the hill. Now we have fallen far below the standards of other developed nations. Only our ignorance allows us to retain our pride.
The original project was a series of posts. But the problems are too vast, the body of evidence too large, the audience for such knowledge too small. So here are links to evidence, just samples and snippets of the many articles and studies — often screams for action — about our criminal justice system. It’s the water of knowledge for those with a taste of it.
- Prosecutors, another weak link in the system
- About SWAT
- About our forensics experts
- About our prisons
- Other articles about our broken criminal justice system
(1) Prosecutors, another weak link in the system
Again, if the liberty of a man consists in the empire of his reason, the absence whereof would betray him to the bondage of his passions, then the liberty of a commonwealth consists in the empire of her laws, the absence whereof would betray her to the lust of tyrants. And these I conceive to be the principles upon which Aristotle and Livy (injuriously accused by Leviathan for not writing out of nature) have grounded their assertion, “that a commonwealth is an empire of laws and not of men.”
— The Commonwealth of Oceana by James Harrington (1656)
… to the end it may be a government of laws and not of men.
— Last sentence of the Constitution of Massachusetts (1780), inserted by John Adams
Our political system has evolved to become a mockery of the Founders’ intention. Few places show that more clearly than the almost limitless discretion prosecutors have to selectively enforce the uncountable body of laws binding Americans. Combined with the cost of mounting an adequate defense — far beyond the means of almost all Americans — this transforms them into a political hammer like used by tyrants – and an enemy of free people. As Scott Horton and others have shown, politicians have not hesitated to wield it against their enemies — and upstart citizens.
(a) “The Federal Prosecutor: A calling betrayed“, Scott Horton, Harper’s, 8 February 2007 — Opening:
The federal prosecutor is a vital part of our democracy. The role has, in a sense, been the most critical building block upon which the American democracy has rested, for it assures justice–without which we would have no democracy. Thousands of young Americans who aspire to a career in public service seek and secure positions as assistant United States attorneys. Many of these individuals—a disproportionately high number of them, in fact—go on to pursue careers in politics. In recent decades there has been no more important well from which the two great political parties have drawn human material.
Yet in my lifetime the reputation of federal prosecutors has never sunk quite so low as it stands today. And the reason is simple and obvious: we have witnessed a wholesale betrayal by federal prosecutors of their sworn duties to the nation, the law, and, most importantly, to the unswerving pursuit of justice. Instead, the objectives of a political party have been permitted to supplant independent professional judgment and corrupt the system.
(b) “The Cost of Rogue Prosecutors“, Scott Horton, Harper’s, 13 June 2007 — Opening:
Michael B. Nifong was the state prosecutor in Durham, North Carolina, who brought and trumpeted rape charges against a group of Duke University lacrosse players. The charges were false, and the decision to hype them to the media was unconscionable. Now the state of North Carolina has brought charges against Nifong seeking to hold him to account for his misdeeds as a prosecutor. The state argues that his motivations were corrupt: he pursued the charges not because he really believed that the lacrosse players were guilty (indeed, he had strong evidence, including DNA tests, which conclusively established their innocence) but because he expected that the case would have strong political appeal to the Black community in Durham and would therefore assure his re-election to office. This case is an extremely important demonstration of the responsibilities of prosecutors and a demonstration of the sort of damage a rogue prosecutor can do.
(c) “More Prosecutorial Misconduct in the Al-Arian Case“, Scott Horton, Harper’s, 11 March 2009 — excerpt:
The Justice Department’s handling of the Al-Arian case should be studied as a textbook case of prosecutorial abuse. The prosecutor handling the case, whose honesty and integrity were directly assailed by the court, is named Gordon Kromberg. He’s been profiled in the Wall Street Journal’s law blog and the Washington Post, both noting his tendency to disparage Arab culture and Islam in court submissions and public statements. Kromberg is a prosecutor with the Eastern District of Virginia U.S. Attorney’s office–generally reckoned one of the most politicized in the country and a preferred venue for Bush Administration counterterrorism cases.
(d) “When Prosecutors Run Amok – And What To Do About It“, Scott Horton, Rotary Club and American Constitution Society, New York City, 3 May 2010 — Opening:
The American Founding Fathers had a strong sense that humans by their nature seek power and abuse it if they have an opportunity to do so. This recognition led to the elaborate system of checks and balances they wove into our Constitution, a system that has served us well for more than two centuries. But our checks and balances system isn’t complete and we still have some testy problems. Today I want to take up one of them.
I’ll start with the ancient question: who guards the guardians? The guardians of our system are to a large extent the federal prosecutors. They play an essential role in our society. Through the power of inquiry and investigation they ferret out corrupt conduct and criminality and with the power of prosecution they enforce the laws. The 93 U.S. attorneys and the thousands of assistant U.S. attorneys wield enormous power and influence. To a large extent their vision of what is law and who are criminals governs and shapes our society. They can and have historically been a force for enormous social transformation in our country. … They protected us from the mob and they worked selflessly to insure that all Americans had a fair shot, including the right to vote and the right to secure a decent education. But there was also always a dark side to this power.
(2) About SWAT
Here are some of the many articles about the activities of those highly-esteemed but gun-happy and often accidental killers on our America’s SWATs. they’re the sharp edge of our increasingly militarized police.
- “Death by SWAT“, Radley Balko, Reason, January 2009 — Another in a long list of deaths from our increasingly para-military and out-of-control police SWAT teams.
- “4.5 SWAT Raids Per Day“, Radley Balko, Reason Magazine, 1 March 2010
- “SWAT Team Raids House at 6 AM and Handcuffs Father of 3 Young Kids to Execute a Dept. of Education Search Warrant for Estranged Wife’s Defaulted Student Loans“, Matt Welch, Reason, 8 June 2011
(3) About our forensics experts
Few aspects of our criminal justice system demonstrate its irrationality as do forensic experts. Underpaid, overworked, under-regulated — they are the opposite of the picture painted on TV (e.g., CSI and its clones, NCIS). Yet these exaggerated but confident opinions by government-sponsored experts, relying on what are often little more than urban legends, send people to jail — unless they have the money to hire opposing experts. For the rich it’s a contest of forensic gladiators; for the poor it’s kangaroo court.
- “Forensic Science: The Need for Regulation“, Randolph N. Jonakait, Harvard Journal of Law and Technology, Spring 1991
- “Forensic Science: Oxymoron?“, Donald Kennedy, Science, 5 December 2003
- “”How to Improve Forensic Science“, Roger Koppl, European Journal of Law and Economics, 2005
- “Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping” by Jane Campbell Moriarty and Michael J. Saks, Judges’ Journal, Fall 2005
- “Forensic Entomology: Myths Busted!“, Forensic Magazine, October/November 2006
- “CSI for Real: How to Improve Forensic Science“, Roger Koppl, Reason Foundation, 1 December 2007
- “The CSI Effect: Popular Fiction About Forensic Science Affects Public Expectations About Real Forensic Science“, N. J. Schweitzer and Michael J. Saks (Arizona State U), Jurimetrics, Spring 2007
- “Strengthening Forensic Science in the United States: A Path Forward“, National Academies of Science, 2009 — “With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
- Trial by Fire – Did Texas execute an innocent man?“, David Grann, New Yorker, 7 September 2009
- “CSI Myths: The Shaky Science Behind Forensics“, Popular Mechanics, 18 December 2009 — “Forensic science was not developed by scientists. It was mostly created by cops, who were guided by little more than common sense. And as hundreds of criminal cases begin to unravel, many established forensic practices are coming under fire. PM takes an in-depth look at the shaky science that has put innocent people behind bars.”
- “Agents’ Secrets, The News & Observer, a series of reports in August 2010 — Horrific revelations about the NC State Bureau of Investigation (the State’s crime laboratory).
- “Scathing SBI audit says 230 cases tainted by shoddy investigations“, The News & Observer, 19 August 2010 — More revelations.
(4) About our prisons
Our prisons show American exceptionalism at its clearest, with their combination of third world conditions (overcrowding, routine rape — even for minors) AND our obliviousness. Before St. Peter we can plead ignorance. Of course we all know that’s a lie; we just don’t give a damn. I recommend hoping for mercy, not justice.
(a) About our prisons
- The Commission on Safety and Abuse in America’s Prisons
- Testimony by Stuart Grassian (psychiatrist) about the impact of isolation, Commission on Safety and Abuse in United States Prisons, 19 July 2005.
- “The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units“, Bruce A. Arrigo (Prof Criminology, UNC at Charlotte) and Jennifer Leslie Bullock, International Journal of Offender Therapy and Comparative Criminology, December 2008 — Reviewing What We Know and Recommending What Should Change
- “Torture in Our Own Backyards: The Fight Against Supermax Prisons“, Jessica Pupovac, AlterNet, 24 March 2008 — “In supermax prisons, 23 hours a day of solitary confinement is the norm. How did our prison system become so cruel?”
- “Prolonged Solitary Confinement and the Constitution“, Jules Lobel (Prof of Law, U Pittsburg), Journal of Constitutional Law, December 2008
- “Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act”, Margo Schlanger (Prof Law, Washington U in St. Louis) and Giovanna Shay (Asst Prof, Western New England College School of Law), Journal of Constitutional Law, December 2008
- “Reform School“, John Pfaff, Slate, 19 February 2009 — “Five myths about prison growth dispelled”
- “Hellhole, in the Annals of Human Rights“, Atul Gawande (Assoc Prof of Surgery at Harvard; bio here), The New Yorker, 30 March 2009 — “The United States holds tens of thousands of inmates in long-term solitary confinement. Is this torture?”
- “Bad Bad Juju: Sensory Deprivation and Solitary Confinement“, G.I. Wilson (Colonel, USMC, retired), 31 March 2009 — “Research shows that extreme sensory deprivation and extended periods of solitary confinement lead to mental aberrations and manifestations such as hallucinations, perceptional issues, and dysfunctional cognitive missteps.”
- “Solitary Confinement: The Invisible Torture“, Brandon Kein, Wired, 29 April 2009 — Interview with Craig Haney (Prof of Psychology, U of California, Santa Cruz; bio).
- Report of the National Prison Rape Elimination Commission, June 2009 — The Commission was established by the 2003 Prison Rape Elimination Act.
- “California’s Choice“, Kevin Drum, blog at Mother Jones, 19 November 2009
- “Can Our Shameful Prisons Be Reformed?, David Cole, New York Review of Books, 19 November 2009
- “Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09“, Allen J. Beck, Paul Guerino and Paige M. Harrison, Dept of Justice, 7 January 2010
- News story about the above report: “The Crisis of Juvenile Prison Rape: A New Report“, David Kaiser and Lovisa Stannow, blog of the NY Review of Books, 7 January 2010
- “The Rape of American Prisoners“, David Kaiser and Lovisa Stannow, The New York Review, 11 March 2010
- “The Way to Stop Prison Rape“, David Kaiser and Lovisa Stannow, The New York Review, 25 March 2010
- “Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09“, US Department of Justice, August 2010
- About the above report: “Prison Rape: Eric Holder’s Unfinished Business“, David Kaiser and Lovisa Stannow, blog of the New York Review of Books, 26 August 2010
- The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
- Proposed National Standards to Prevent, Detect, and Respond to Prison Rape Under the Prison Rape Elimination Act (PREA): Initial Regulatory Impact Analysis for Notice of Proposed Rulemaking, by the United States Department of Justice, 24 January 2011
- Sexual Victimization Reported by Adult Correctional Authorities, 2007–2008, by Allen J. Beck and Paul Guerino, Bureau of Justice Statistics, 26 January 2011
- National Standards to Prevent, Detect, and Respond to Prison Rape: Notice of Proposed Rulemaking by the United States Department of Justice, Federal Register, 3 February 2011
- “Prison Rape and the Government“, David Kaiser and Lovisa Stannow, New York Review of Books, 24 March 2011
(b) Some Research — studies by Daniel P. Mears (Prof Criminology, FSU):
- Benefit-Cost Analysis of Supermax Prisons – Critical Steps and Considerations, 1 August 2004
- Evaluating the Effectiveness of Supermax Prisons, May 2006
- Wardens’ Views on the Wisdom of Supermax Prisons, July 2006
- Assessment of Supermax Prisons Using an Evaluation Research Framework, March 2008
- Supermax Incarceration and Recidivism, November 2009
(5) Other articles about our broken criminal justice system
- Graphic of a crazy system: The system of American justice“. Harper’s, May 1985
- “Tiny little laws: A plague of sexual violence in Indian country“, Kathy Dobie, Harper’s, February 2011 — The long sage of our mistreatment continues.
- “Law and Order: Interview with Radley Balko Part I“, Atlantic, 16 June 2009 — Part 2. Part 3.
- “Supermax Confinement in U.S. Prisons“, a report by the New York City Bar Association, September 2011 — “We believe that in many cases supermax confinement constitutes torture under international law … and cruel and unusual punishment under the U.S. Constitution”