[net-gold] LAW : LEGAL ISSUES : COUNTRIES: UNITED STATES: The Collapse of American Justice
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Sun, 25 Sep 2011 13:19:42 -0400 (EDT)
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LAW :
LEGAL ISSUES :
COUNTRIES: UNITED STATES:
The Collapse of American Justice
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Saturday, Sep 24, 2011 16:01 ET
The Collapse of American Justice
Not long ago, we had a low incarceration rate and a system that worked.
Then everything started to unravel
By William J. Stuntz
Salon
http://www.salon.com/life/hoarding/index.html?story=/
news/feature/2011/09/24/collapse_of_american_justice_excerpt
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A shorter URL for the above link:
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http://tinyurl.com/3z6ozd9
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The criminal justice system has run off the rails. The system dispenses
not justice according to law, but the "justice" of official discretion.
Discretionary justice too often amounts to discriminatory justice. And no
stable regulating mechanism governs the frequency or harshness of criminal
punishment, which has swung wildly from excessive lenity to even more
excessive severity.
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Why? Two answers stand out: one concerns law, the other democracy. As
unenforced speed limits delegate power to state troopers patrolling the
highways, so too American criminal law delegates power to the prosecutors
who enforce it. That discretionary power is exercised differently in poor
city neighborhoods than in wealthier urban and suburban communities. Far
from hindering such discrimination, current law makes discriminating easy.
That sad conclusion has its roots in a sad portion of America's legal
history. When the Fourteenth Amendment's guarantee of the "equal
protection of the laws" was enacted, one of its chief goals was to ensure
that criminal law meant one law alike for blacks and whites -- that both
ex-slaves and ex-slaveowners would be held to the same legal standards,
and that crime victims among both groups received roughly the same measure
of legal protection. That understanding of equal protection did not
survive Reconstruction's collapse. Today, the equal protection guarantee
is all but meaningless when applied to criminal law enforcement, one
reason why both drug enforcement and enforcement of laws banning violent
felonies are so different in black communities than in white ones.
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The democracy answer likewise has its roots in history: the history of
American local government. In most countries, national governments or
provincial governments enforce criminal law. Here, local institutions --
chiefly city police forces and county prosecutors' offices -- do most of
the enforcing, while locally selected juries judge those criminal
defendants who take their cases to trial. Likewise, in most of the world
prosecutors and judges are civil servants. Here, local prosecutors -- the
ones who try the large majority of cases -- and trial judges (appellate
judges, too) are, with few exceptions, chosen by voters of the counties in
which they work. At least in theory, these features of the justice system
give citizens in crime-ridden neighborhoods a good deal of power over
criminal law enforcement in their neighborhoods.
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snip
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Third, jury trials, once common, became rare events. The overwhelming
majority of criminal convictions, more than 95 percent, are by guilty
plea, and most of those are the consequence of plea bargains. This change
shifts power from the local citizens who sit in jury boxes to the less
visible assistant district attorneys who decide whom to punish, and how
severely. Fourth and finally, state legislators, members of Congress, and
federal judges all came to exercise more power over criminal punishment
than in the past. The details are complicated; how and why this change
happened is one of this book's larger stories. But the bottom line is
clear enough: a locally run justice system grew less localized, more
centralized.
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All these changes limited the power of residents of poor city
neighborhoods -- the neighborhoods where levels of criminal violence are
highest. Residents of those neighborhoods, most of whom are African
American, have less ability than in the past to govern the police officers
and prosecutors who govern them. As local democracy has faded, the rule of
law has collapsed, discrimination has grown more common, and criminal
punishment has become prone to extremes of lenity and severity. Here as
elsewhere, correlation does not prove causation. But this coincidence
seems more than coincidental. If criminal justice is to grow more just,
those who bear the costs of crime and punishment alike must exercise more
power over those who enforce the law and dole out punishment.
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Which leads to an obvious question: How might things be set right? The
solution to the system's many problems has two main ingredients.
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The first is a revival of the ideal of equal protection of the laws.
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snip
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The complete article may be read at the URL above.
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Sincerely,
David Dillard
Temple University
(215) 204 - 4584
jwne@xxxxxxxxxx
http://daviddillard.businesscard2.com
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