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.

Contents

  1. Prosecutors, another weak link in the system
  2. About SWAT
  3. About our forensics experts
  4. About our prisons
  5. 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.

  1. 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.
  2. 4.5 SWAT Raids Per Day“, Radley Balko, Reason Magazine, 1 March 2010
  3. 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.

  1. Forensic Science: The Need for Regulation“, Randolph N. Jonakait, Harvard Journal of Law and Technology, Spring 1991
  2. Forensic Science: Oxymoron?“, Donald Kennedy, Science, 5 December 2003
  3. “”How to Improve Forensic Science“, Roger Koppl, European Journal of Law and Economics, 2005
  4. Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping” by Jane Campbell Moriarty and Michael J. Saks, Judges’ Journal, Fall 2005
  5. Forensic Entomology: Myths Busted!“, Forensic Magazine, October/November 2006
  6. CSI for Real: How to Improve Forensic Science“, Roger Koppl, Reason Foundation, 1 December 2007
  7. 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
  8. 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.”
  9. Trial by Fire – Did Texas execute an innocent man?“, David Grann, New Yorker, 7 September 2009
  10. 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.”
  11. 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).
  12. 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

  1. The Commission on Safety and Abuse in America’s Prisons
  2. Testimony by Stuart Grassian (psychiatrist) about the impact of isolation, Commission on Safety and Abuse in United States Prisons, 19 July 2005.
  3. 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
  4. 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?”
  5. Prolonged Solitary Confinement and the Constitution“, Jules Lobel (Prof of Law, U Pittsburg), Journal of Constitutional Law, December 2008
  6. “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
  7. Reform School“, John Pfaff, Slate, 19 February 2009 — “Five myths about prison growth dispelled”
  8. 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?”
  9. 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.”
  10. Solitary Confinement: The Invisible Torture“, Brandon Kein, Wired, 29 April 2009 — Interview with Craig Haney (Prof of Psychology, U of California, Santa Cruz; bio).
  11. Report of the National Prison Rape Elimination Commission, June 2009 — The Commission was established by the 2003 Prison Rape Elimination Act.
  12. California’s Choice“, Kevin Drum, blog at Mother Jones, 19 November 2009
  13. Can Our Shameful Prisons Be Reformed?, David Cole, New York Review of Books, 19 November 2009
  14. 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
  15. 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
  16. The Rape of American Prisoners“, David Kaiser and Lovisa Stannow, The New York Review, 11 March 2010
  17. The Way to Stop Prison Rape“, David Kaiser and Lovisa Stannow, The New York Review, 25 March 2010
  18. Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09“, US Department of Justice, August 2010
  19. 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
  20. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  21. 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
  22. Sexual Victimization Reported by Adult Correctional Authorities, 2007–2008, by Allen J. Beck and Paul Guerino, Bureau of Justice Statistics, 26 January 2011
  23. 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
  24. Prison Rape and the Government“, David Kaiser and Lovisa Stannow, New York Review of Books, 24 March 2011

(b)  Studies by Daniel P. Mears (Prof Criminology, FSU)

  1. Benefit-Cost Analysis of Supermax Prisons – Critical Steps and Considerations, 1 August 2004
  2. Evaluating the Effectiveness of Supermax Prisons, May 2006
  3. Wardens’ Views on the Wisdom of Supermax Prisons, July 2006
  4. Assessment of Supermax Prisons Using an Evaluation Research Framework, March 2008
  5. Supermax Incarceration and Recidivism, November 2009

(5)  Other articles about our broken criminal justice system

  1. Graphic of a crazy system: The system of American justice“. Harper’s, May 1985
  2. Tiny little laws: A plague of sexual violence in Indian country“, Kathy Dobie, Harper’s, February 2011  — The long sage of our mistreatment continues.
  3. Law and Order: Interview with Radley Balko Part I“, Atlantic, 16 June 2009 — Part 2Part 3.
  4. 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”

9 thoughts on “More about the collapse of the American Criminal Justice System

  1. The bad news: like much of our spending on new infrastructure, the prisons are in Afghanistan.

    U.S. to build new massive prison in Bagram“, Glenn Greenwald, Salon, 19 September 2011 — Opening:

    As the Obama administration announced plans for hundreds of billions of dollars more in domestic budget cuts, it late last week solicited bids for the construction of a massive new prison in Bagram, Afghanistan. Posted on the aptly named FedBizOps.Gov website which it uses to announce new privatized spending projects, the administration unveiled plans for “the construction of Detention Facility in Parwan (DFIP), Bagram, Afghanistan” which includes “detainee housing capability for approximately 2000 detainees.” It will also feature “guard towers, administrative facility and Vehicle/Personnel Access Control Gates, security surveillance and restricted access systems.” The announcement provided: “the estimated cost of the project is between $25,000,000 to $100,000,000.”

    In the U.S., prisons are so wildly overcrowded that courts are ordering them to release inmates en masse because conditions are so inhumane as to be unconstitutional (today, the FBI documented that a drug arrest occurs in the U.S. once every 19 seconds, but as everyone knows, only insane extremists and frivolous potheads advocate an end to that war). In the U.S., budgetary constraints are so severe that entire grades are being eliminated, the use of street lights restricted, and the most basic services abolished for the nation’s neediest. But the U.S. proposes to spend up to $100 million on a sprawling new prison in Afghanistan.

  2. Another good link: “Scathing SBI audit says 230 cases tainted by shoddy investigations“, The News & Observer, 19 August 2010 — Excerpt:

    The North Carolina justice system shook Wednesday as an audit commissioned by Attorney General Roy Cooper revealed that the State Bureau of Investigation withheld or distorted evidence in more than 200 cases at the expense of potentially innocent men and women.

    The full impact of the disclosure will reverberate for years to come as prosecutors and defense attorneys re-examine cases as much as two decades old to figure out whether these errors robbed defendants of justice. Some of the injustices can be addressed as attorneys bring old cases back to court. For others, it’s too late: Three of the defendants in botched cases have been executed.

    The revelation came after a five-month review in which two former FBI agents pulled dusty case files from shelves to find the truths that analysts chose to keep to themselves. … Swecker determined that the practice of not reporting results of more sophisticated blood tests was sanctioned by some analysts. In 1997, it became written policy. That policy remained in effect as recently as 2003.

    Swecker said his findings signal potential violations of the U.S. Constitution and North Carolina laws by withholding information favorable to defendants. Swecker stopped short of determining whether the hidden results affected guilt or innocence in the cases he examined; often there was other evidence in the cases that linked defendants to the crimes. Still, the withheld information could have made a difference in the sentences handed down.

    “This is mind-boggling,” said veteran Wayne County District Attorney Branny Vickory, a Democrat. “It is really a nightmare for everyone. I don’t know how we are going to make this right.”

    The audit is another black eye for a beleaguered SBI. The News & Observer reported this month in a series, “Agents’ Secrets,” that analysts across the laboratory push past the accepted bounds of science to deliver results pleasing to prosecutors. They are out of step with the larger scientific community and have fought defense attorneys’ requests for additional information needed to review the SBI’s work. Cooper last month dismissed SBI Director Robin Pendergraft after she struggled to answer questions about SBI cases and policies.

  3. Please read this: “Jose Padilla and How American Justice function“, Glenn Greenwald, Salon, 20 September 2011.

    There is not much to say about this, other than to quote John 11:35:

    Jesus wept.

    For America. For our souls. For the last dream of a city on the hill.

    For we must consider that we shall be a city upon a hill. The eyes of all people are upon us, so that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a byword though the world.
    — John Winthrop, A Model of Christian Charity (1630)

  4. That there is actually anyone who has studied any history at all (not the revisionist form of history please) who is NOT surprised of the content of this article would be astonishing.

    The USA has been for the better part of the last 172 years an illegal and criminal venture posted and applied by the Plutocratic Oligarchy and ‘these days’ which may be the ‘final days’ are simply the inevitable results of a long over due collapse.

    What is made from the ruble — or what ‘crawls out of the ruble’ will depend upon many factors but the survivors will need to abandon the ‘conservative mindset’ — which demands that to conserve one must maintain the “PO” regardless of the evidence to abandon it — for an entirely fresh —“progressive approach” — “conservatism” has proved to be a dismal failure except for a ‘few’ — who are in control of the ‘many’ and has always been at the ‘expense of the many’.

    Good Luck America, you will need it.

  5. SUPERMAX CONFINEMENT IN U.S. PRISONS“, a report by the New York City Bar Association, September 2011 — Excerpt:

    During the past three decades, “supermax” confinement has become a widespread and integral element of prison administration in the United States. As many as 80,000 prisoners are held in supermax facilities or in isolation units within prisons. These prisoners endure conditions of extreme sensory deprivation for months or years on end, an excruciating experience in which the prisoner remains isolated from any meaningful human contact. Access to a telephone, books, magazines, radio, television, even sunlight and outside air may be denied or severely restricted.

    The policy of supermax confinement, on the scale which it is currently being implemented in the United States, violates basic human rights. We believe that in many cases supermax confinement constitutes torture under international law according to international jurisprudence and cruel and unusual punishment under the U.S. Constitution. The time has come to critically review and reform the widespread practice of supermax confinement.

    … Although supermax confinement does not produce visible scars or bruises, its impact on prisoners can be comparable to physical torture. As Senator John McCain, who experienced five years of solitary confinement as a prisoner of war, wrote, “[i]t’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.” Numerous studies confirm the psychological damage caused by supermax confinement, and the adverse effects are especially pronounced for mentally ill prisoners.5 As two leading medical authorities recently wrote, “[j]ust about everyone who has taken a serious look a long-term isolated confinement (as in supermaximum security or long-term administrative segregation) has concluded there is serious harm from long-term isolated confinement.”

  6. Sentencing Shift Gives New Leverage to Prosecutors“, New York Times, 25 September 2011 — Opening:

    After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

    Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

    “We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

  7. If our rulers don’t follow the law, why should the Police?

    Policemen Show Up in Force to Support Officers Arrested for Ticket-Fixing“, New York magazine, 28 October 2011 — Excerpt:

    The charges awaiting the arrested police — who count one woman, ten union members, and three officers among their numbers — include obstruction, perjury, and bribery: favor-trading on steroids. Ten of the arrested are officers and prominent members of the Patrolmen’s Benevolent Association, the police union, …

    As many as 100 raucous cops turned up at midnight at the Bronx DA’s Office, screaming their support for 15 fellow officers who were scheduled to surrender in the NYPD ticket-fixing scandal. … Their brother officers loudly applauded them as they walked into the building. They also jeered Internal Affairs detectives, whose investigation led to the indictments. “You pussies,’’ shouted one cop at the IAB contingent.

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