Criminal Injustice System: Injustice Against One Is Injustice Against All

Injustice Against One Is Injustice Against All

For every victory in the name of human dignity, it seems like we are suffering a thousand defeats. I say "we" because injustice against any person is cause for alarm; an injury to one is an injury to all. Prosecutors get re-elected or move on to higher office when they put lots of people in prison. They rarely get credit for choosing not to prosecute someone in the interest of justice. Federal criminal justice grants, asset forfeiture, promotions, higher office — all of these rewards are based on arrests and convictions, not necessarily a fair administration of justice.

Criminal Injustice System

Posted by Zach Wendling

As many civil libertarians have been keen to note, there are serious systemic problems with the criminal justice system in America. One of the leading voices on this issue is Radley Balko, an ITA favourite. The Atlantic Monthly’s Conor Friedersdorf recently interviewed him for their special Ideas Report. Each of the five segments touches on different aspects of our legal system, and I encourage you to read each of them in full. However, what Balko has to say is just too important not to repeat, so here are some salient excerpts.

Part I: The General Situation

I think the main problem is too much attention to numbers and statistics, which I think has been largely driven by the 40 years of “get tough on crime” rhetoric and slogan-based crime policy we’ve been getting from politicians. Everyone wants to boast about declines in crime statistics. But the focus on raw numbers has created some perverse incentives, from beat cops through mayors and police chiefs . . .

Prosecutors get re-elected or move on to higher office when they put lots of people in prison. They rarely get credit for choosing not to prosecute someone in the interest of justice. That’s not to say it doesn’t happen. But there’s rarely any professional reward for doing so. In fact, they usually get flack for it, particularly in high-profile cases. Prosecutors are also rarely sanctioned for bending or breaking the rules. They’re virtually immune from lawsuits, even if they convict the wrong person, and even if prosecutorial misconduct was a major factor in the conviction. So you have all this pressure on winning convictions, with little sanction for going too far.

Federal criminal justice grants, asset forfeiture, promotions, higher office — all of these rewards are based on arrests and convictions, not necessarily a fair administration of justice.

Part II: The Militarization of Law Enforcement

We’re dressing police officers in military attire, giving them military-grade weaponry, training them in military tactics, then sending them into American cities and neighborhoods and telling them they’re fighting a war–be it the war on drugs, or a more generic war on crime. That’s not a healthy development for a free society. People who live in high-crime areas are still American citizens with rights. They aren’t the foreign residents of an enemy nation.

Part III: No-Knock Raids

Police can now enter your home unannounced if they believe that knocking would endanger their safety, or if they believe it would give you time to destroy evidence, which in most cases means the time you would need to flush your drug stash down the toilet.

The problem with no-knock raids is that they’re extremely volatile, confrontational, and leave very little margin for error. They might make sense when you’re trying to defuse an already-violent situation — say to apprehend a dangerous escaped fugitive, or to end a hostage standoff. But most no-knocks today are conducted for the routine service of drug warrants. So they aren’t defusing an already violent situation, they’re creating violence where the was none before.

Part IV: Forensic Evidence

Juries tend to put a great deal of faith in witnesses that judges certify as experts. The problem is that judges haven’t adequately performed their duty as gatekeeper, both at keeping frauds out of the courtroom and preventing legitimate experts from testifying beyond their expertise or exaggerating the certainty of their conclusions.

Part V: Solutions

1. Changing the federal government’s role in the criminal justice system.
2. Ensure that scientific evidence in the courtroom is actually scientific.
3. Community policing.
4. More liability for police and prosecutors who misbehave.
5. End the drug war.

Sadly, everything in public choice theory suggests that these solutions will not come to pass. Not even a high-profile example of misconduct like the Duke LaCrosse prosecutions could muster the public sentiment necessary for such a sea change. And with the nomination of Sotomayor, it doesn’t look as if we will have any Supreme Court decisions rediscovering the lost portions of the Fourth and Fifth Amendments anytime soon. What a glum slice of American public policy.