The Terrifying Power of the State
The other day I made a plea to favor the slow moving wheels of justice, especially as contrasted with the image of the mob mentality and vigilantism associated with the Trayvon Martin case. The assumption I made, of course, is that justice is actually served by the justice system.
While I still believe that to be the preferred outcome versus mob-ism, this piece from Conrad Black writing at NRO in an article entitled Injustice System, is… discouraging:
…in [the last] 40 years the number of convictions that are the result of a trial has sharply declined to a pitiful one in 33, while the U.S. has gone from the mid-point of incarcerations per capita among prosperous democracies to six to twelve times as many as Australia, Canada, France, Germany, Japan, or the United Kingdom.
Black doesn’t mention what the convictions per trial ratio was before, nor does he suggest what it should be. Still, the issue regarding the incarcerations numbers is this: is it us or is it them? Surely if one set of incarcerations per capita is “right,” the other must be wrong, for to reconcile two opposing outcomes as both reflecting justice would seem to violate the rules of logic. (Note: however, Mr. Black, I’d say only Australia, Canada, and Germany really fit the definition of prosperous democracies.)
…when prosecutors [in the U.S.] target someone, they interview everyone close to the target or to the events being examined and threaten them with the full weight of their powers unless they have a miraculous recollection of inculpatory evidence against the target. They know that the prospective witnesses may have a score of interviews with prosecutors, leaping higher and higher in what they remember and forget, like dogs training for a competitive obstacle course, until an adequately useful version of events is agreed, and an immunity or reduced sentence is granted.
I am not in any way favoring surrendering American judicial and legal sovereignty to anyone, but it does make one, to include Mr.Black, no stranger to legal… issues, wonder. Especially after the non-justice (to-date) associated with the prosecutorial misconduct in the Ted Stevens case.
Some of the [court] justices are knowledgeable about foreign law, and know that, in every other serious jurisdiction in the world, no evidence procured as it is in the American plea bargain would be admissible, and the prosecutors responsible for it would be disbarred. The Supreme Court itself, in the infamous Thompson case of 2011, determined that even where prosecutors willfully withheld exculpatory evidence about a long-term denizen of death row, there were no legal sanctions against them.
Again, I’m not sure what a serious jurisdiction is, but such misconduct is not only disgraceful, but it seems criminal (although apparently it isn’t). Surely this is a plea from Black to make such misconduct criminal, even for prosecutors. What other types of changes have the U.S. justice system seen over time?
In 40 years, the number of people in mental institutions in the U.S. has declined by 90 percent, and not because of a great leap forward in the country’s mental hygiene.
Not to denigrate mental health care workers, but have we exchanged the Nurse Ratched of 1962 for the Guard Ratched of today? Did we have it wrong then and now we have it right, or is it vise versa? Certainly Black thinks we have it wrong today.
Last week, on plea bargains, by the narrowest of margins (5-4), they [the Supreme Court] did the right thing. But in the course of doing so, Justice Kennedy for the majority revealed the high court’s tolerant awareness that American criminal justice is essentially a process of prosecutorial target selection and target practice.
What outcomes do target selection and target practice lead to in the American criminal justice system? As Gold Five told us in Star Wars, they lead prosecutors to Stay on target.
Most basically, Black’s article seems to offer three fundamental questions: the ancient one of who will watch the watchers?; the next being more contemporary, that is, what are the limits (or non-limits) of the power of the state?; the final question being what, if anything will we do?