Justice For All

Justice for All?
A reality check for the judicial process in the United States
July 4, 2000

1. Bill of Rights
It has been a received wisdom that the United States is a nation where Bill of Rights guarantee the equal protection of the laws regardless of color, race, or religion.
A Bill of Rights on paper comforts people and it is good to have a Bill of Rights. They are useful as standards and rhetorical purposes, but it is disastrous to depend on them.
Historically, the government of the United States did not adopt the Bill of Rights in 1791 with much enthusiasm, but a political tool to quiet down critics of the Constitution. It was expanded after the Civil War, with the passage of 13th, 14th, 15th Amendments, and after a hundred years later, every American presidents, liberal or conservative, Democrat or Republican violated his pledge to uphold the Constitution, by failing to enforce those Amendments and the Supreme Court interpreted them so as to make them useless.

The First Amendment says, among other things: “Congress shall make no law…abridging the freedom of speech, or of the press…” In 1798, Congress passed a law abridging the freedom of speech and the press. It was the Sedition Act of 1798, and it provided jail sentences for people who criticized the government and many writers were imprisoned. They appealed to the court.
Americans learned in junior high school about checks and balances and how if Congress passes a law violating the Constitution, they are very lucky to have the Supreme Court to check that and declare the law null and void.
Well, the members of the Supreme Court, apparently having skipped junior high school, or perhaps understanding that the phrase “check and balances” is just intended to satisfy school children, did not declare the Sedition Act null and void. Not at all. They said it was constitutional.
Again in 1917, Congress passed the Espionage Act and the Sedition Act, providing heavy sentences for those criticizing the First World War.

The guarantees of the Bill of Rights have little meaning as long as the society remains in deep schism between the haves and the have-nots. The rights of equal protection under the laws depend on having the resources to use them.
The right to legal counsel is different for rich and poor. The right to be free from unreasonable searches and seizures is different for a family living in a mansion and another living in a housing project, or out on the street.
In the real world, the fate of human beings is decided every day not by the courts, but out of court, in the streets, in the workplace, by whoever has the wealth and power.

2. Racial disparities in the criminal justice system
A recent study issued by a coalition of civil rights organization in the United States finds that minorities in America face discriminatory treatment at every stage of the judicial process, from arrest to incarceration. They encounter intensive and unfair targeting by police and other law enforcement officials, racially biased charging and plea bargaining decisions by prosecutors and discriminatory sentencing by judges.

DWB is popular acronym for Driving While Black, for example on interstate 95 in Maryland, it is common practice of the police to stop and search 70 percent of black drivers, while only 17 percent of overall drivers are blacks (racial profiling and police brutality).

In California, a white felony defendant with no prior criminal record stood a good chance of having the charge reduced to a misdemeanor or infraction compared to little chance for a similarly situated black or Hispanic.

Racial discrimination is more dramatic in juvenile justice system when minority and white youth were charged with the same offenses, black youth with no criminal record were six times more likely to be incarcerated than white youth with similar backgrounds.

There are 2 million Americans incarcerated in Fed, State penitentiaries, and local jails as of now, and 70 percent of inmates belongs to black and Hispanic group while comprising substantially less than one third of the US population.
In 16 states, if you are convicted of a felony—even if you get out of prison—you are disenfranchised for life, that is, you can’t vote until you drop dead.

When a Joe Blow steals just a candy bar (retail price: one dollar) from a grocery store, it buys him 16 years in prison.
When businesses steal millions from Joe Blows, they get a token punishment.
Richard Pryor once said that in our country, justice means “just us” regular folks who end up in the slammer and not “them”, the people who called the shots.
Last April, a Texas jury recommended that Kenneth Payne, 29, spends 16 years in jail for stealing a Snickers bar from a Tyler grocery store in Texas, because he was on parole for felony at that time. Still the guy was a petty thief—he stole cookies and candy bars.
When a female prosecutor was asked how she could justify 16 years for the theft of a Snickers bar, her response was: the candy bar he stole was a King size.

Comparing Mr. Payne’s plight to those of recidivist corporate criminals like Exxon, Royal Caribbean, Rockwell International, Warner Lambert, Teledyne and United Technologies truly deserving of the corporate death penalty get away with slap-on-the-list fines after being convicted of a crime that cost consumers hundreds of millions of dollars.
In 1886, the Supreme Court essentially made corporation bulletproof…the Court decreed abruptly in a case brought by a railroad company that a corporation is a “person” with the same constitutional protections that every citizens have, including the right to free speech, which in turn has been interpreted as the right of the wealthy, the powerful and the corporate to buy politicians.
The corporation was transformed into a superhuman creature of the law, a corporate citizen that is superior to people, since it has civil rights with no civil responsibilities; it is legally obligated to be selfish; it cannot be thrown in jail; it can deduct from its tax bill from any fines it gets for wrongdoing; and it can live forever.

3. Immigrant’s nightmare
There has been a flurry of immigration prosecutions under Clinton administration based on 1996 Illegal Immigration Reform and immigration Responsibility Act (14,000 cases in 1998).
Last year, a US federal judge ordered the release of a 37-year-old electrical engineer from Egypt who has been jailed for more than three years in solitary confinement.
Imagine that you have been confined to a “hole” for three years without knowing why you are in the slammer in the United States, soi-disant democratic country!
The Immigration and naturalization Service (INS) prosecuted him on the basis of secret evidence allegedly linking him to a terrorist organization. The judge denounced the use of secret evidence that never revealed to either the defendant or his lawyers and recommended that he be granted political asylum.
Recently declassified evidence from the immigration hearing described the source of the “secret evidence” against him as a “friendly foreign intelligence service”, and the judge’s advocacy for the political asylum was based on the very real danger that the Egyptian government was that source, if he were deported.
In a related development, another US district judge ordered the release of 31-year-old Palestinian immigrant who had been held for one and half years in New Jersey county jail while the INS sought his deportation. His case also was linked to the secret evidence that the defendant and his lawyers are not permitted to examine in order to fight the accusation.
How can a defendant dispute the charges without knowing what the evidences are?

The Congress had passed another draconian law in 1996 that authorized the establishment of a new court whose sole purpose is to hear cases in which the government, basing itself on secret, classified evidence, seeks to deport aliens accused of engaging in terrorist activity.
Both of these Acts violate the basic right to due process as outlined in the Fifth Amendment to the Constitution and according to the American Civil Liberties Union (ACLU), the Sixth Amendment also prohibits the government from using secret evidence in criminal proceedings against both citizens and non-citizens. Virtually every case in which the INS has used secret evidence involves a Muslim or Arab.

4. Inequity in Death Penalty
Last January, the Governor has imposed a moratorium on executions in Illinois, after the state almost put to death of 13 innocent men among 56 death row inmates.
Governor George Ryan, who was a longtime proponent of capital punishment as a Republican, said recently that if he doesn’t have 100 percent guarantee the system will be flawless, he can’t go ahead to execute any one while he remains in office.
A national survey in February this year found support for the death penalty at 66 percent, its lowest level in 19 years, and the legislature in New Hampshire voted to abolish capital punishment, the first state to pass such a bill since the Supreme Court allowed executions to resume in 1976 (the Governor vetoed the bill).

There have been total executions of 650 men and women in the United States since 1976 and as of June 29 this year, 52 convicts were put to death while 3600 people including 43 women on death row nationwide. Currently, 38 states allow the death penalty and it is permitted under federal and military law.
The methods of execution and numbers executed by that methods are electrocution (146), firing squad (2), gas chamber (11), hanging (3), and lethal injection (488).
The majority of executions are administered by lethal injection, which is touted as a more humane method than other methods, however it is not the clinical and painless process claimed by the proponent.
The state of Texas tops the executions with 223 until now and is scheduled to kill an average of one man every week through November Presidential election, when its Governor, George W, Bush seeks for the presidency (he has executed 135 inmates up to now, one execution in every two weeks, since he became the governor).

Amnesty International cites that blacks make up just 12 percent of the population, but 42 percent of the condemned prisoners, and while victims of murder are equally divided between black and white, 82 percent of those executed since 1977 were convicted of the murder of a white person.
According to a recent study, a black defendant in Philadelphia is four times more likely to receive a death sentence than a white defendant and eight times as many blacks than whites have been sentenced to death in that city since the death penalty was reintroduced in Pennsylvania state in 1978.
In the Southern states, many black prospective jurors are routinely removed from the jury pool by prosecutors during jury selection, which violates a 1986 Supreme Court ruling that jurors can only be removed for “race neutral” reasons.

Internationally, the United States is only advanced country in advanced Western countries, both in law and practice, retains the death penalty, and is one of only a handful of nations worldwide that permits the execution of juvenile offenders.
A recent article in the Economist notes that 80 percent of the executions in the world in 1998 were carried out in China (1,067), Congo (100), the US (68), and Iran (66), and the US total may reach 100 this year.
Since 1990, only five countries—Iran, Nigeria, Pakistan, Saudi Arabia and Yemen—are known to have imposed the death penalty against the juvenile offenders.
Currently, there are 74 inmates who allegedly committed crimes as juvenile, 2 percent of the death row total and 25 of those are in Texas jails.
The paradigm case of the juvenile offender on death row is that two-third of all the juvenile death row inmates is a minority.
In addition, more than 30 people suffering from mental retardation have been executed in US, even though the Supreme Court has ruled in 1986 that execution of the “insane” is unconstitutional.
Convention on the Rights of Child which the US has signed in 1995 stipulated that capital punishment shall not be imposed for offenses committed by people under the ages of 18, and the US is the only country in the world other than Somalia to have not ratified this Convention.

5. Judicial errors and inadequate legal defense
Since 1976, at least 75 people have been released from death row, after determination that they had been wrongly convicted. This means for every seven executions one condemned prisoner has been freed, and since 1972, about one percent of those on death row has later been found innocent and many of these prisoners have come within hours of execution.

The study conducted by a team of lawyers and criminologists from Columbia University in New York showed that in the 4,578 capital cases between 1973 and 1995, 68 percent—nearly 7 out of every 10—of convictions was reversed in its death verdict in the national level.
Death sentences can be reviewed at three levels—direct review by a state high court, post-conviction appeal to a state court, and habeas corpus petition to a federal court. Of the 4,578 cases included in the study, 1,885, or 41 percent, were thrown out at the state direct review level by the same judges who imposed the death sentence in the first place, because of glaring errors that “seriously undermined the reliability of the outcome or otherwise harmed the defendant”.
In the federal appeal level, Clinton administration has severely restricted up to one year for the rights of death row inmates to appeal their sentences under the provision of the Antiterrorism and Effective Death Penalty Act of 1996.

In death penalty cases of Texas state where far more executions (223) of any other states in the US, many of 135 executions under Bush have been compromised by unreliable evidence, disbarred or suspended defense attorneys, meager defense efforts during sentencing and dubious psychiatric testimony, according to the report by Chicago Tribune in June.
In 43, or about one third of the capital cases, the defendants were represented at trial or at the initial appeal by a lawyer who had previously been, would later be, disciplined, and many attorneys failed to show up for trials, lying to defendants and judge, fell sleep during the proceedings speeding through cases in order to please judges.
Despite of these problems, defendants are rarely given new trial by the Court of Criminal Appeals, dominated by right-wing judges. Since 1995 when Bush took office, the court has only granted eight new trials and six new sentences, while upholding 270 death sentences.

It is obviously the poor who suffer most from incompetent defense. Unable to pay for their own attorney, they are often assigned inexperienced lawyers who have neither the time nor the desire to research their case. The overloaded judges are often more interested in getting the trial over with than in determining the guilt or innocence of the defendant, so he assigns court-appointed lawyers based on personal relations and expediency rather than the quality of the lawyer. These attorneys are low-paid, forcing them either to work extensive hours or cut the time they give to each case and many high-powered ones like Johnny Cochran who defended O J Simpson refuse to defend court-appointed cases.

6. Lock’em up and Throw the Key out!
It is a popular wisdom that capital punishment deters crimes and it provides relief to the families of murder victims.
The government tries to shape public opinion saying that the death penalty carries the official message which killing is an appropriate and effective response to killing. However, it contributes to desensitizing the public to violence promoting public tolerance for “eye for an eye”.
And there is no evidence that the state-sanctioned killing is a deterrent to crime and even strong advocate for the execution no long advances the deterrent factor as a serious argument.
As for the victims relief, the study suggest that, considering the high rate of flawed sentences, the drive to impose the death penalty was driven more by the ambitions of overzealous prosecutors than by concern for families of homicide victims.
The Chicago Tribune report found that many of the executions under Bush were based on the purchased testimony from unreliable sources through the corrupt, cowboy prosecutors…twenty-three cases involved the use of jailhouse informants, who often receive compensation for their testimony that renders a special treatment or leniency for their own sentences and sometimes involves monetary remuneration.

The US media tells people that things have never been better in America. And indeed, from the point of view of some 20 percent of population, this is true: the stock market is setting records, profits are high, America is held up as the model of profit-making efficiency and entrepreneurship by every compradors in the world.
Then, why, under conditions of such apparent economic success, does the state feel the continued need to poison, gas, electrocute, hang, and shoot people?
The most basic reason is the staggering level of inequality in the United States.
Graphs representing the gap between rich and poor, on the one hand, and the application of the death penalty, on the other, would show the same sharp incline in parallel.
The overwhelming majority of those on death row—black, Hispanic, and white—are poor and uneducated and if they had million dollars, like O.J.Simpson, they wouldn’t be where they are today.

The recourse to capital punishment is a symptom of social failure. American society is incapable of educating and training its citizens for productive lives, of stamping out disease, of putting a decent roof over the heads of millions, of providing a healthy and safe environment, but it is ever so effective at locking people up (two millions) and dreaming up inventive ways of putting them to death.
Those who zealously champion the expansion of prisons, police and death penalty are inevitably vociferous supporters of the status quo where in America everybody is given “opportunity” to get the pie in the sky and the poor deserve to suffer from its defective genes,--the epitome of the callous indifference to the suffering of their fellow citizens.
The police has to break the rules because the system could not protect society from the demons who were rising from under, and the gangs use more deadly forces because they can’t take chances in pursuing their goals.
American society has gotten to the point where people become less and less shocked by any kind of violence and they sanction the myth of violent solutions (incarceration and death penalty) as the only and ultimate solution, even though their system may send innocent people to the death chamber.